Japanese law makes copying for private use illegal

The Japanese parliament has passed an amendment to their copyright laws, due to come into effect on 1 January 2010, which extends further protection to copyright holders. It makes it illegal for private users to download copyright material which has been uploaded without the permission of the copyright owner.

This means that the right to make backup copies of disks for personal use is illegal. The whole rationale of copyright laws is to protect against commercial copying. There isn’t any jail term or fine for contravening the law, and requires awareness on the part of the user that the files have been illegally uploaded.

However there is scope for civil cases makes provision for damage awards to be made against those who violate the law. There has been considerable debate surrounding this amendment. Whilst copyright law in Japan rendered illegal uploading copyrighted works without the holder’s permission, downloading illegal files wasn’t illegal.

As it is difficult for users to discern what is legal and what isn’t legal, this amendment is likely to affect users from consuming content whether legal or illegal

Music pirate Jammie Thomas-Rasset fined $1.92 million for copyright infringement

As reported by IP Now Jammie Thomas-Rasset has been ordered to pay $1.92 million dollars to RIAA and Capitol Records.

That is 24 songs at $80,000 each, greater than 100 times the cost of the works. The mother of four was found guilty of downloading 24 songs from the former Kazaa file sharing music peer to peer music site.

The penalty, decided by a jury was more severe, because her copyright infringement was deemed to have been wilful, meaning that under US law, the damage per infringement can range from $750 to $150,000 per infringement.

Criminal penalties for copyright infringement are, in Australia, by contrast limited to up to $60,500 and five years imprisonment per offence for individuals, and up to $302,500 for corporations

Last December the RIAA announced a change in strategy involving pursuing Internet Service Providers instead of end users to curb illegal internet file sharing.

Gene Patents

Large parts of your genome, the genetic code that is the distinct code that defines your humanity have been patented and commodified. Exclusive property rights over that information have been awarded to private companies, locking up important research and depriving patients of life saving medical treatment.

The Patents Act 1990 provides patents for inventions, not discoveries. A Patent can be obtained for a device, substance, method or process or combination of them, in any field of technology.

They are the oldest and most powerful form of intellectual property bestowing upon the inventor the exclusive right to commercially exploit an invention for a limited period of time. The concept of what can be patented under the legislation is derived from the Statute of Monopolies 1623. An invention is defined in the Schedule to the Act as “any manner of new manufacture the subject of letters patent or grant of privilege within S6 of the Statute of Monopolies”. The phrase “manner of new manufacture” includes both products and processes which are capable of industrial application. (see the NRDC case). “Manner of manufacture” is an evolving and dynamic concept, having been interpreted in subsequent cases. (CCOM Pty Ltd v Jiejing Pty Ltd. To be eligible as patentable subject matter an invention must be one that offers some advantage which is material in the sens that the process belongs to a useful art as distinct from a fine art, that its value to the country is in the field of economic endeavour”. (NRDC supra).

In April 2009 the Intellectual Property Research Institute of Australia was engaged in a discussion before a Sentate Inquiry on the topic as to whether or not Genes should be patented.

Many organisations and eminent Scientists made submissions including the Cancer Council of Australia.

Their view is set out as follows: “Gene sequences (and genetic mutations linked to specific diseases) are not an invention, but rather the discovery and isolation of naturally occurring substances. As a fundamental part of human biology, gene sequences are increasingly pivotal to an extraordinarily important, burgeoning field of health science – and one that must not be restricted by measures ostensibly designed to reward invention which may lead to the establishment of commercial monopolies….Rather than rewarding innovation, gene patenting is contrary to patent law as developed by the courts and, if allowed, can actively discourage scientific research and discovery….Under current arrangements in Australia, there is no adequate legal protection to ensure genetic testing for cancer risk remains freely accessible and at reasonable cost to the health system
and consumers“

It is fundamentally flawed to grant monopolies to materials that are identical to those found in the human body. As genes were never specifically created there are no firm rules on the patenting of gene sequences that are ‘discovered’.

Yet companies have managed to monopolise both the test for isolating gene sequences and the raw genes themselves. How exactly can an isolated and purified gene differs from the same gene in the human body?

Proponents of gene patents argue that their right to inventions arise legitimately through the discovery and extraction process. However, the concept of a single gene is an artifact, an abstract concept, so the argument goes. Genes do not exist as discrete entities in the human body or in nature, but a part of our entire complement of genomic DNA.

What the particular inventor has done is identified a particular group of letters that have a particular function that is useful. They say they have been able to identify and extract that and define it as having a function. In isolating a gene sequence, it becomes a discrete entity, maintained in a vector, where it can be replicated easily and manipulated easily. Whilst analogous to what we have in our human body, it is something quite different when it is in an isolated form, and it is the isolation process which is the useful information they would argue. The gene itself is merely a research tool.

As IP Watchdog point out this is as “”inventive” as marking the boudaries of natural features, like mountains, on a map. It gives the mapmaker no right to the mountain, nor to preclude others from depicting that mountain. Whilst that concept relates to old copyright cases, the same reasoning is applicable. Like any natural phenomenon there should be firm rules in place to distinguish between rewards for discoveries and patents for inventions. We have seen how the major genetic database vendors human gene sequences have lobbied for misappropriation principles to be incorporated into legislative database proposals to try to package these sequences into databases, granting them potentially protection in perpetuity. Those which to use them for research purposes face having to pay huge licence fees for access to them.

As with any natural phenomenon there should be firm rules in place to distinguish between rewards for discoveries and patents for inventions.

When the human genome was mapped in 2000 both Clinton and Blair stated the raw data should be free, yet patents are placing control on the raw data, data that should be free to realise the promise of this research in advancing the knowledge of human disease. It is a fiction that once you remove the gene from it’s natural environment, the body, you have an invention.

Chinese men convicted for extortion of virtual property

The law relating to intangible property and related intellectual property doctrines is now well established, but prominent intellectual property lawyers are calling for more strongly defined virtual property laws in the  new virtual economy. This comes in the wake of a flood of disputes which have come before Chinese courts.

 The law has been adapting to challenges posed by virtual property, existing in digital form, the value of which derives entirely from activities that are conducted in cyberspace; the type of property that exists in multiplayer online games and virtual worlds like Second Life. There are entrepreneurs who make money by selling goods these goods, and the law has recognised ownership in these virtual currencies, with a thriving trade in virtual property in exchange for real world property. There have already been a spate of prosecutions in different countries involving individuals who have destroyed and stolen virtual property and even murdered for ‘virtual property’, adding a new dimension to cybercrime.

 Four Chinese men has been sentenced to by a Chinese court for the theft of virtual facilities to the value of 100,000 yuan from a fellow internet café user who was beaten, co-erced and forced to transfer QQ coins, the most valuable form of popular currency in China. The convictions demonstrate that despite not recognising virtual property as a form of property despite not explicitly recognising virtual property as a form of property under Chinese law, the Courts have been prepared to entertain such claims.

Chinese law which has been flooded with virtual property disputes since 2006, when a gamer was stabbed to death over a virtual property dispute.

 

Bilski v Doll – Supreme Court to review business method patents

As reported by Patently-O , on the 1st of June, the US Supreme Court on a petition for a writ of Certiorari from the Federal Circuit Court was asked to rule whether the Federal Circuit erred in law in concluding that a ‘process patent’ must be tied to a machine or apparatus or transform an article into a different state or thing (machine or transformation test) to be eligible for protection as patentable subject matter.

The Supreme Court quashed the decision of the lower court, agreeing that the law in relation to the patentability of method patents should be reviewed.

The legal debate commenced when Bernard Bilski and Rand Warsaw, in 1997, sought a patent over a method for predicting and hedging risk in commodities trading. The patent examiner at the Patent Office rejected all 11 of the claims listed in the Patent Specification on the grounds the “the invention is not implemented on a specific apparatus and merely manipulates an abstract idea and solves a purely mathematical problem without any limitation to a practical application, therefore, the invention is not directed to the technological arts.” .

On an appeal to the Board it was held that the Applicants’ claims did not involve any patent-eligible transformation, holding that transformation of “non-physical financial risks and legal liabilities of the commodity provider, the consumer, and the market participants” is not patent-eligible subject matter.” The Board also concluded that the patent did not provide a “useful tangible and concrete result”. From the reasoning of the Board and the Patent Examiner it was apparent that there was a divergence of opinion as to the proper tests to be applied to business method patent claims. However it was clear that part of the reasoning was based on what had become known through previous case law as the ‘machine-transformation test’

An appeal to the Federal Circuit Court was unsuccessful. The Federal Circuit, after surveying the case law in this area, came to the conclusion that a process is eligible for patent protection if it is (a) tied to a particular machine or apparatus or (b) it transforms a particular article into a different state or thing. This kind of patent, known as a process or business method patent, and was rejected as it wasn’t “tied to a machine or didn’t transform an article”.

This landmark decision signified a dramatic shift away from previous rulings in which patents for intangible business processes and methods had been granted. Since the Federal Circuit’s decision the decision in Bilski has led to the refusal of more business method patents by the United States Patent and Trademarks Office. Did this mean that patent eligible inventions are only tangible objects tied to a machine, so that any pending and existing patents will remain marginable because they don’t employ either a machine or other man made thing? High tech, software and biotech companies are anxiously awaiting the outcome of the case, which will add some clarity to the legitimacy of business method patents, and to what extent they will be able to patent software, financial strategies and other abstract processes. The case has vast implications for the patentability of business methods and software and for the fate of the titans of biotechnology, financial services and information management systems.

Software as such is not regarded as patentable material as patent law excludes algorithms. However, the Supreme Court decision in Diamond v Diehr created a legal foundation for permitting a patent to be granted over a physical process that is controlled by software.

Although legal commentators have questioned the validity of the decision, which held that “anything under the sun can be patented”, the Supreme Court of the United States has not had an opportunity since then to review the patentability of software. Therefore the Supreme Court has the opportunity to revisit the Diehr case and re-define the contours of the eligibility of software patents. Applications for protection for new ways of doing business, involving the use of technology, have exploded in recent years as the internet has given rise to novel business approaches.

The fact that the Supreme Court accepted the petition has been greeted as a sign for optimism particular in light of the fact that the Government has been urging them against taking this path. The review is expected to be heard in October.
The most recent High Court decision in the area of method or process patents was Grant v The Commissioner of Patents, in which the invention in question, involved a method of protecting assets from financial risk in the event of a finding of legal liability. The invention, as filed, didn’t allude to any technical features, data processing or computer system. The High Court held that the patent claimed by Grant wasn’t within the scope of patentable subject matter, and that commercial and financial schemes, like abstract principles of nature are the patentable.

The Full Court of the Federal Court of Australia seemed to be suggesting that the scheme would need to be embodied in some kind of software or processing system to have some physical effect or application to be patentable. This reasoning wasn’t well received, and has since given rise to debate as to what type of “physical effect” would be necessary to render such a method or process patentable. The Court was prepared to state that a “physical effect” would encompass the ‘transformation of data’, ‘an application of a computer program, the operation of a method in a physical device, or a change in state or information in a part of a machine.

Under the European Patent Convention an invention is excluded as patentable if it has no ‘technical character’, the meaning of which is also somewhat uncertain.

Italians exploring copyright infringement action against Pirate Bay

The four men behind Pirate Bay are now being pursued by the Italians for violating Italian copyright law who are conducting an investigation according to Cnet

Last year in a concerted effort to penetrate BitTorrent sites in Italy, Italian ISPs were ordered to block access to the PirateBay.org website, a decision which Pirate Bay won on appeal.

However the recent case in Sweden has motivated Italian copyright holders seem optimistic about their prospects of instigating their own legal after the recent conviction of the Swedes.

In Italy the cause of action would be for being an ‘accessory to copyright infringement’ and if convicted it is predicted that the four could face prison sentences of between 6 months and three years including more fines on top of the already $3.6 million dollars penalties from the previous trial.

It is estimated that only 2.3% of visitors to Pirate Bay’s website were Italians and that Pirate Bay has never had any physical base in Italy, nor have any of their servers been located there.

Meanwhile as a result of tough internet piracy laws, far fewer Swedes are embracing the internet, their dampened enthusiasm evident in the 40% drop in internet traffic after the new laws took effect on 1 April this year. It is not a fleeting phenomenon, with usage levels remaining at the same levels.

However whilst many copyright heavyweights would cite this as a victory for the entertainment industry, they seem to forget the chilling effect this has on free speech, and legitimate file sharing and use of the internet enjoyed by the nation. The IPRED law allows authorities to demand the identities of suspected infringers from ISPs, which even small ISPs in Sweden have been resisting.

 

 

 

 

Swedish ISPs Erase customer data

Another Swedish telecom provider Tele 2 has followed in the footsteps of smaller Swedish ISPs Bahnhof and Alltele, in announcing it intends to erase all data it holds on it’s 600,000 customers
After scrutinising the legislation, it is the opinion of the CEO of Tele 2 that there are no obligations at all for ISPs to store information about their customers’ IP addresses. Other smaller Swedish ISPs are apparently following suit. The IPRED law which took effect on 1 April permits Courts to order ISPs to hand over details that can help identify suspected illegal filesharers. This concerted action by ISPs comes prior to pending amendments to the European Union’s Data Retention Directive which will force ISPs to retain customer data for up to 6 months

The iiNet Case – ISP liability for copyright infringement

Internet Service Providers and other intermediaries are  becoming increasingly embroiled in online copyright infringement disputes.

Proceedings launched in the Federal Court of Australia in November 2008 against one of Australia’s largest Internet service providers (ISPs) are likely to be  a test case for ISP liability, concerning the degree to which ISPs can rely on section 112E and the “safe harbour” provisions in the Copyright Act 1968 (Cth).  (AFACT v iiNet Ltd)

The plaintiffs, Roadshow Films and thirty three other production companies from Australia, US and Europe, their owners and/or exclusive licensees of the copyright in motion pictures and TV films, initiated action in the Federal Court claming that iiNet’s customers accessing the internet using iiNet’s services have made available to others, the whole or a substantial part of copies of movies and TV programs of the Plaintiffs who own the exclusive copyright to those works.

 Additionally they claim iiNet has infringed their copyright by authorising the primary infringement by their end users. This they argue makes iiNet liable for copyright infringement as they either knew or had reason to suspect that iiNet users were engaging in or likely to engage in copyright infringement.

The Plaintiffs contend that iiNet took no action in response to their notification of this unlawful activity, and therefore encouraged their users to commit copyright infringement.

By continuing to offer internet services they accuse iiNet of failing to enforce the terms and conditions of their services which purport to restrict infringing use of other person’s rights.

In summary, the Plaintiffs contend that through their indifference iiNet enabled a situation to develop and continue in which iiNet uses engaged in copyright infringement, when they had the power to prevent it. Having a direct commercial relationship with their customers, they submit that they had the power to take action against their customers, but failed to do so.

The companies’ Statement of Claim filed in the Federal Court of Australia, states that iiNet not only failed to take steps to stop illegal filesharing by customers,  but also breached copyright itself by storing and transmitting the data through its system.

Their claims appears to rest upon the principles of authorisation liability in that iiNet allowed it’s users to download pirated movies and TV shows.

 The question that the court is required to determine is  whether iiNet are guilty of authorisation of copyright infringement,  and if so, whether iiNet can claim the benefit of the ‘safe harbour’ provisions.

iiNet’s defence rests upon Section 112E of the Copyright Act which excludes liability for ISPs where they  merely provides the “facilities” that customers have used to infringe copyright,  and the “safe harbour” provisions in Division 2AA of the Act which limits liability of ISPs for authorising copyright infringement in certain circumstances

 One of the conditions for meeting the eligibility requirements of the safe harbour provisions is that carriage service providers have a termination policy for repeat offenders.

 iiNet argue they had a ‘repeat infringer policy’ which existed partly in writing and which could be partly implied by it’s conduct in implementing the policy. They refer to a document titled ‘Checklist for opting into a safe harbour scheme’ which is a reference to an Internet Industry Association standard checklist for members.

 IiNet also point to a document titled Internet Industry Association (IIA) Internet Content Host (ICH) and Safe Harbour Guide, another industry body handout, and a website notice stating that the hosting or posting of illegal or copyright material using an iinet service constitutes a breach of iinet contractual obligation under the Customer relationship Agreement.  Such a breach of contract may result in the suspension or termination of service without notice to the subscriber.  

The implied part of the policy consists of iiNet making available an email address to which complainants can send infringement notices, and the existence of procedures and systems for dealing with them. However iiNet havn’t yet pointed to the existence of any Board Minutes to demonstrate they formally adopted any specific procedures or policies,  nor is there any mention of any internal policy documents to support the policy in operation.

 Iinet had brought a motion before the Federal Court to have the claim against them struck out, however Justice Chowdery refrained from doing so. Instead the Judge has ordered the film companies to provide further supporting evidence to substantiate their claims of infringement, including specifically what the infringing copies are and how they are created.

 The Companies’ allege that iiNet’s users had downloaded films to copy onto DVDs to watch and distribute,  based on conversations appearing on internet forums.

 iiiNet contend that these forum discussions should be disregarded as the commentators are anonymous and reside in different countries where different copyright regimes apply.

 The matter is set to proceed before the court at a further hearing in July 2009.

Significantly, the Federal Court hasn’t discounted the possibility of an ISP being directly in breach of copyright laws merely if it provides services to individuals who illegally share files on a peer to peer network. 

Whilst the original claims against iiNet lodged with the court appeared to be based solely upon allegations that the ISP indirectly breached copyright in their works, further amended claims accuse iiNet of engagement in direct infringement with the illegal file sharers by virtue only of the fact that they are routing data through their networks and systems.

This raises the question of whether an ISP can be guilty of engaging in copyright infringement by providing the intermediate and transient storage of, or alternatively, the caching of copyright material.

The case brought against iiNet has understandably given rise to concern amongst  ISPs  about their potential legal exposure  for acts of copyright infringement allegedly committed by subscribers who use their facilities and services.

 

ISPs have the difficult task of  balancing their customer’s privacy and other rights against aggressive demands by copyright holders to comply with disclosure requests seeking the details of the identity of their customers believed to be involved in copyright infringement.

 The iiNet case raises issues of profound importance to the creative industries, ISPs and the general public, about the extent to which copyright holders can use copyright law as a mechanism to prevent unlawful means of distribution of their content.

It also raises the question as to whether ISPs should be held responsible for the alleged infringing acts of their customers, and how the privacy and other interests of end users such as their ongoing right to internet access should be respected.

As the iiNet case demonstrates, copyright holders are leaning on ISPs to assist them not only in enforcing their rights, but by bringing them to task for their participation in online copyright infringement.

ISPs face the prospect of being deluged with the legal and administrative burden/task of responding to automated email takedown notices as happened to ISPs in the United States.

 ISPs have actual control over whether or not a subscriber can use their facilities to access the internet. This puts them in a dilemna as they cannot control and are frequently unaware of the online conduct of their users.  Many believe ISPs shouldn’t be liable for the activities of their users who may have infringed copyright just because they make their facilities available for such users who may use them for infringing conduct

 There are serious and legitimate concerns over the privacy implications of being able to obtain details of alleged copyright infringers by going straight to the ISP, bypassing any judicial intervention or oversight. An ISP isn’t in a position to make an adequate assessment of whether material is infringing, whether there is sufficient evidence to establish copyright infringement, and to monitor and terminate internet access to users based upon unsubstantiated threats from copyright owners.

These types of expectations put them in the position of having to assume the mantle of copyright Police, Prosecutors and Judges.

 Policy considerations have to be taken into account in determining whether ISPs should be protected from actions for copyright infringement. Otherwise the cost and regulatory burdens would detract from their incentive to engage in business. A certain level of protection is also required to protect free speech from being arbitrarily suppressed  on the internet without reasonable evidence or proper investigation.

ISPs are being forced to partake in an administrative process in responding to requests to ‘take down’ material where it is alleged to constitute copyright infringement or defamation.

 The rationale for providing protection for ISPs led to the enactment of ‘safe harbour’ provisions in the US to protect ISPs from being held liable for damages as long as they act in accordance with the safe harbour scheme.

 A person or entity can be guilty of copyright infringement either by directly committing an act comprised within the rights of a copyright owner (direct/primary liability) or by authorising such direct or primary infringement.

In Australia the concept of secondary liability for the acts of subscribers arises pursuant to the concept of authorisation liability (known in the US as vicarious liability)

Whether a person is guilty of authorisation liability hinges on the nature of any relationship between the parties, and whether the party accused of authorisation took  any reasonable steps to prevent or avoid the commission of the act concerned. 

 Under S112E the Copyright Act, an ISP isn’t deemed to have authorised copyright infringement merely by virtue of having provided facilities, a recognition that all they do is to route internet traffic.

The legislation states that assuming there is a direct infringement of copyright by a person, provided that the carriage service provider  has satisfied the relevant conditions, their liability will be limited to terminating the account of the end user and the court may not grant damages or account of profits or any other relief.

 In making whether an ISP is liable, the court is directed to have a look at a list of specified factors, including factors such as the harm caused to the owner of the copyright, the burden that the making of the order will place on the ISP, the technical feasibility of complying with the order, and the effectiveness of the order, and whether some comparable order will be less burdensome.

A condition of availing themselves of the safe harbour provisions is that the carriage service provider must also adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers’.

However, the form in which that policy and under what circumstances it must be invoked isn’t clear. 

It is therefore arguable that it doesn’t have to be contained within one single document or even be formulated in writing.

There have been recommendations that ISPs have a formal public copyright infringement policy as part of a safe harbour compliance program, with Board papers adopting same and internal policies/documentation available to employees regarding compliance with the policy.

There has been a lot of debate as to what it means to reasonably implement a policy in appropriate circumstances. 

However, the drafting of the legislation is very loose.  Nothing in the legislation itself specifically requires the carriage service provider to monitor their service, so it is arguable that the legislation is not intended to change the status quo in terms of the onus of proof.

It is submitted that it shoul still be up to the copyright owner to monitor whether their material is being infringed.

Carriers can’t and shouldn’t realistically be held liable, as they can’t  be expected to know what is going through their wires.

The question arises as to where safe harbour protection commences and finished. It appears that it may cease at the point at which an ISP would be expected to know of the activity, and are deriving a direct financial benefit from it. For example if an ISP was aware of an enormous amount of traffic being directed to one particular website, which couldn’t be explained on any alternative basis, that might be seen by a court as sufficient to alert them to the fact it was dealing with illegal downloading.

CSIRO’s Patent Victory

In the latter half of the 1990’s the CSIRO developed OFDM technology, wireless standards for computers, enabling them to network with one another without cables. This technology became prevalent in most laptops and other devices, earning for the CSIRO licensing fees which was re-invested into research.

Subsequently legal action was launched by a number of high technology companies including Microsoft, Dell, Hewlett Packard, Intel, Apple and Netgear to invalidate the CSIRO’s patent. The lawsuit had huge implications for the wi-fi industry, particularly for the manufacturers of consumer electronic gadgets utilising wireless chips such as mobile phones, game consoles and music players

The patent infringement action signalled the commencement of an epic legal battle which shifted to Texas, culminating in a victory for the CSIRO with the negotiation of a settlement, yielding millions of dollars for the Australian scientific research agency in the form of compensation and the right to ongoing royalties

Bathing poncho patent

A bathing poncho patent has been issued to an entrepreneur with a vision to enable those to shower without attracting too much attention. 

It’s issue has created a storm about the inequality of the practices of the Patent office in granting patents.