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June 14, 2006

Can you prohibit linking?

The essence of the internet is the ability to hyperlink to other sites.

Hyperlinking is not unlawful.

So when a Canadian copyright protection site (Captain Copyright) sought to limit linking to it, especially from sites critical of it,  there was quite a bit of discussion about the nature of linking.

If you do not want someone to access your site, password protect it or insist they accept restrictive terms before entering it. However, anyone can link to any site provided it is not for unlawful means.

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Posted 14th June 2006 by David Jacobson in Legal, Web/Tech

June 9, 2006

The technology behind Australia’s access card

MIS Magazine's story on Australia's health and services access card highlights the huge planning and implementation obstacles to this project: there are already arguments over its specifications and the technology to be used.

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Posted 9th June 2006 by David Jacobson in Legal, Privacy, Web/Tech

June 8, 2006

How do police access seized computers?

I've always wondered how police get access to computers they seize in a raid. I assume that the bad guys know about passwords.

Well the Queensland Police must have had that problem as the Police Powers and Responsibilities Act 2000 has just been amended  to allow a search warrant to "order the person in possession of access information for a storage device in the person’s possession or to which the person has access at the place to give a police officer access to the storage device and the access information necessary for the police officer to be able to use the storage device to gain access to stored information that is accessible only by using the access information". (Section 71A).

Access information means information of any kind that it is necessary for a person to use to be able to access and read information stored electronically on a storage device.
Storage device means a device of any kind on which information may be stored electronically.
Stored information means information stored on a storage device.

Will that make it easier to force bad guys to hand over their passwords?

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Posted 8th June 2006 by David Jacobson in Legal

May 15, 2006

Australian copyright reform: no fair use exception

One year after releasing an Issues Paper on Fair Use exceptions for Australia, the Attorney-General has announced proposed changes to the current law. A draft exposure Bill will be released in the near future to enable consultation with stakeholders.

Essentially there will be a broadening of specific exceptions to copyright breaches, without adopting USA's general fair use scheme (which puts proof on a user to show "fair use"). (See Kim Weatherall for more detail)

According to the Attorney-General , the changes will, for the first time:

• Make it legal for people to tape a TV or radio program to view or listen to once at a later time (known as ‘time-shifting’). This exception will not allow a recording to be used over and over again or to be distributed by others.

• permit a person who has purchased a legitimate copy of some categories of copyright material to make a copy in a different format. In particular, this exception will allow individuals to store their personal music collection recorded on CDs, audio tapes or vinyl records in the memory of an MP3 player or home entertainment personal computer. It will also allow people to scan an article from a newspaper they have purchased to save on their computer (although they will not be able to upload it onto the internet). People also will be able to dub their old VHS cassettes onto a DVD.

• Provide new exceptions allowing schools, universities, libraries and other cultural institutions to use copyright material for non-commercial purposes

• Provide new exceptions for people with disabilities to allow access to copyright materials

• Allow the use of copyright material for parody or satire

• Provide new enforcement measures to combat copyright piracy including on-the-spot fines, proceeds of crime remedies, a change in presumptions in litigation to make it easier to establish copyright piracy.

The Bill will also :
* extend the jurisdiction of the Copyright Tribunal,
* repeal the legislative cap on the fees paid by radio broadcasters for playing sound recordings, and
* create new offences for pay TV piracy.

There will be separate legislation this year dealing with Australia’s remaining obligations under the Australia-United States Free Trade Agreement concerning the liability regime for circumvention of technological protection measures.

The Government will monitor the implementation of the scope of the format shifting exception to review in two years’ time, whether the scope can be expanded to digital audio-visual materials (eg DVD's, computer games) in a way which complies with our international obligations.

Amendments also will be made as a result of the Government’s review of the 2001 Digital Agenda copyright reforms.

The Government will introduce a range of new measures to tackle piracy. These measures will support Australian and international creators and distributors, including small businesses such as cinema operators and video shops.

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Posted 15th May 2006 by David Jacobson in Legal

May 4, 2006

The colour purple (part 2)

Having lost their claim for exclusive use of the colour purple for chocolate shops, Cadbury's has been granted (on the same day) a trademark for the colour purple for moulded block milk chocolate and boxed milk chocolate bonbons only. (via Kim Weatherall).

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Posted 4th May 2006 by David Jacobson in Legal

May 3, 2006

Who owns the colour green?

For completeness, as I recently discussed who owns the colour purple, I think I should mention developments relating to the colour green.

After winning a Federal Court single judge decision against Woolworth's opposition, BP has registered its trade mark for green at its service stations.

Justice Finkelstein concluded:

65 Customers identified BP’s service stations by the colour green
alone, independently of the shield.  These are the reasons.  First BP is the
only service station that used green as the predominant colour on its get up
when the applications were filed.  Second BP has made extensive use of the
colour green in its get up – not only with the implementation of Project
Horizon but as early as 1956 when green was adopted as one of BP’s
corporate colours in Australia.  Third the colour green has featured prominently
in the company’s advertising.  On the evidence which I have, much of which
was not before the examining officer, I am bound to reach the conclusion that
the colour green in the shade depicted in the applications had acquired a
secondary meaning and had become distinctive of BP’s goods and services in
the classes for which registration is sought when the applications were filed in
1991 and 1995 respectively.

Woolworths has now obtained leave to appeal to the Federal Court Full Court. (via Warwick Rothnie)

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Posted 3rd May 2006 by David Jacobson in Legal

May 2, 2006

Blogging and legal academics

There is a growing but reluctant acceptance among academia that blogs may be an acceptable form of academic scholarship (but why write a short note when a long one will do?).

So a Bloggership symposium at Harvard was a first.

Concurring Opinions provided a wrap-up. (via Blawg Review)

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Posted 2nd May 2006 by David Jacobson in Legal, Web/Tech, Weblogs

April 30, 2006

Who owns the colour purple?

In Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446 (27 April 2006), Cadbury sued Darrell Lea alleging its use of the colour purple misled, or is likely to mislead, consumers into thinking Darrell Lea’s products are those of Cadbury or that Darrell Lea itself or its products have some kind of association with Cadbury. Cadbury claimed it had a "substantial, exclusive and valuable reputation and good will" in a particular shade of the colour purple.

The action failed.

The trial judge concluded (at para 97): Cadbury does not have an exclusive reputation in the use of this dark purple colour in connection with chocolate. Other traders have, with Cadbury’s knowledge, for many years used a similar shade of purple. Cadbury has not consistently enforced its alleged exclusive reputation. In relation to its chief competitor Nestlé, Cadbury has, for its own commercial reasons, permitted a use of purple in relation to popular chocolate products....

121 The findings above lead to these conclusions. Cadbury and Darrell Lea are competitors in the retail chocolate market, yet they each have distinctive product lines which are sold from different sorts of premises under distinctive trade names. They have distinct identities in the market place. Cadbury does not own the colour purple and does not have an exclusive reputation in purple in connection with chocolate. Darrell Lea is entitled to use purple, or any other colour, as long as it does not convey to the reasonable consumer the idea that it or its products have some connection with Cadbury. I am not satisfied that this has occurred, or is likely to occur.

UPDATE 22 May 2007: Full Court decision

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Posted 30th April 2006 by David Jacobson in Legal

April 25, 2006

Blogging, the media and the law

The Economist has a feature on New Media and includes in its survey an article on blogging which it describes as "participatory media".

Coincidentally Joe Gratz has published a summary of presentations at the Blog Law conference just held in San Francisco. It complements the views of PR firms and journalists I referred to previously in respect of corporate blogging.

I don't think you can pigeon hole blogging: it's a platform capable of being used in many ways.

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Posted 25th April 2006 by David Jacobson in Legal, Weblogs

April 24, 2006

Australian Communications Industry Forum Credit Management Industry Code

The Australian Communications and Media Authority has registered a revised industry code dealing with credit management practices in the telecommunications industry.

The ACIF C541: Credit Management Industry Code deals specifically with credit management procedures within the
telecommunications industry. It sets out minimum standards of practice that suppliers must adhere to, ensuring industry consistency for both consumers and suppliers. The code places obligations on
telecommunication suppliers in regard to credit assessment, credit control tools, credit management and financial hardship.

The revised code includes the introduction of comprehensive financial hardship programs that are
designed to assist customers experiencing difficulties with paying their bills. Industry has committed to develop hardship programs that are flexible and able to meet the needs of customers who may need this

Providers must also offer tools such as call barring, caps on expenditure, download limits and pre-paid services to help customers manage their spending to avoid going into debt.

Registration of the code allows ACMA to issue directions to individual carriers and carriage
service providers to comply with the code if necessary.

Carriers and carriage service providers have six months to implement a number of improved practices.

Consumers are able to take complaints about credit management issues to the Telecommunications Industry Ombudsman, if they are not satisfied with the response of their provider.

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Posted 24th April 2006 by David Jacobson in Legal
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