Digital Media Law Project - Australia

Toxic Lunch: Digesting the Latest ACTA Leak

Andrew Moshirnia — Mon, 19 Jul 2010 19:29:03 +0000

The latest leak of the Anti Counterfeiting Trade Agreement (ACTA) came out a few days ago. Before we delve into the more troublesome elements of the agreement, let’s take a few moments to ponder how sad it is that our government continues to craft this agreement in secret.

I have spilt much digital ink over the stupidity of overt secrecy. When you won’t show me what is behind the curtain, I want nothing more than to rend draped velvet. But if you just pull the fabric back and show me the fantastipotamus, I’ll quickly grow bored.

The trade representatives crafting ACTA feigned that they understood this basic equation (openness + politics = mundane disinterest) when they finally released a draft of the long secret agreement a few months back. Granted, this release came after a series of leaks exposed the noxious text. But I thought there was a glimmer of hope that US negotiators might provide some of the transparency our current administration had promised.

No such luck. The resumption of secrecy was all but announced when trade representatives would only show the text to the EU Parliament in camera, with the MEP’s forbidden to share the information with the public. I am happy to note that the representative from the Pirate Party, Christian Engstrom (arrgggh) walked out rather than take part in this Court of the Star Chamber.

Thankfully this is not the end of the story. Because this agreement (which, let's recall, was supposed to be about counterfeit goods) threatens the internet access of citizens, as well as the safe harbors of Universities and ISPs, there will be no shortage of leaks to the web.

The latest leak of ACTA signals that there might be trouble in overreaching-undemocratic-drafting-paradise. It seems that there is serious disagreement over Article 2.2 (Injunctions):

The Parties [NZ/Mor/Mex: may] shall also ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right.

The United States and Japan seem to be considering the inclusion of this clause, while Australia, Mexico, and others oppose it.

The clause is troubling because it could serve as a backdoor method for introducing three strikes cutoffs for accused users. One of the great fears around ACTA is that the agreement will cause ISPs to block service to accused users. This is certainly the goal of representatives of the entertainment industry. Indeed, the industry supported the three strikes HADOPI law in France (which the current regime is rethinking) and Lord Mandelson’s Digital Economy Bill in England. I don't think I need to revist why these measures are obscene. I have covered the arguments against these measures here and here. When the latest ACTA draft was released, people cheered that the agreement did not mandate three strikes. However, the text encouraged such a method by providing a three strikes prohibition as the only example of a safe-harbor preserving ISP response.

Article 2.2 suggests that injunctions may be served directly to ISP intermediaries, resulting in the cessation of internet access. That is, rather than serving and trying the accused pirate, the rights holders would target the risk adverse ISPs. Although it is likely that courts would not order a digital execution without hearing something from the accused, it is likely that ISPs would want to avoid the matter entirely by simply acceding to the right holder’s demands. Cf. the rampant abuse of DMCA take downs. Kimberlee Weatherall, a law lecturer at University of Queensland, voiced similar concerns for Australians and their ISPs, mutatis mutandis.

Supporters of ACTA will claim that this doomsday interpretation is farfetched. I think that the track record of the entertainment industry and the clear push for a three strikes option counsel against that attack. However, I fully acknowledge that I tend to imagine the worst-case scenario when shadowy figures meet in smoke filled rooms and refuse calls for even the most basic transparency. If the ACTA negotiators would simply step into the light, I would no longer need to imagine secret rituals, swinging censers, and internet blocking collective punishments. So once again, I ask that this pointless secrecy cease. Be open. Be boring. Let politics be politics again.

(Andrew Moshirnia is a rising third year at Harvard Law School. ACTA makes him a sad panda.)

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Subject Area:

Paving Hell: ACTA Encourages Oppression from Friend and Foe Alike

Andrew Moshirnia — Tue, 30 Mar 2010 13:58:21 +0000

The drafting of the Anti-Counterfeit Trade Agreement (ACTA) isn’t going so well. The agreement, which at least hints at three strikes provisions and third-party criminal liability for IP infringement, was finally leaked in its entirety last week. Now it seems that the drafters are a little nervous that authoritarian regimes might use ACTA to suppress speech. Wow, ya think? But we do not need to look to our enemies to find atavistic Internet policies. In the last few weeks, two of our staunchest supporters (South Korea and Australia) have been added to the illustrious Enemies of the Internet list. If even our well-intentioned, democratic allies offend Internet freedom by way of the rule of law, can there be any doubt that repressive regimes will do the same?

Background: Reporters Without Borders puts out an annual report on Internet censorship and labels the largest offenders as either pervasive censors "enemies of the Internet" or as substantial censors "under surveillance." The usual "pervasive" suspects include Burma, China, and Iran. But most recently, Australia and South Korea found themselves on the substantial "under surveillance" list. Who are some of the other substantial censors? Qatar, Russia, Saudi Arabia, UAE, and Yemen.

To be fair, it seems that good intentions drive the repressive actions of our allies. In the land down under, blocking access to child pornography is of paramount importance. Australia is planning to implement one of the most restrictive Internet filters a democracy has ever seen, surely screening out legal material in the process. Perhaps the Aussies are jealous of New Zealand, which turned on an Internet filter of its own in February (and conveniently neglected to mention this fact to the public until a month later). South Korea is more concerned with preventing libel (especially for political candidates) and eliminating online anonymity. New criminal provisions allow for a sentence of up to 5 years for reporting of false news. Users are required to enter their real name and their national ID number when using websites with more than 100,000 members.

These nations enjoy the advantages of a politically engaged citizenry and functioning justice systems. If we are lucky, ACTA might only slightly exacerbate these disturbing trends of censorship. Do we doubt for even a second that ACTA will be a boon for oppressive regimes unencumbered by robust legal protections? Finally, dictators will have a legitimate and legal International agreement to frustrate, harass, and/or identify online dissenters. Perhaps ACTA is a job stimulus bill aimed at the world’s torturers.

Now that ACTA has finally been leaked in its entirety, I can cite some scary stuff. Let’s just focus on one provision:

Each Party shall enable right holders, who have given effective notification to an online service provider of materials that they claim with valid reasons to be infringing their copyright or related rights, to expeditiously obtain from that provider information on the identity of the relevant subscriber.

chapter 2, section 4, article 2.17, paragraph 3, option 3ter

Wow. There goes anonymity and due process. Let’s say I am an oppressive regime. One of the very few ways my citizens can reach me is by videotaping and publicizing my brutal methods of silencing protesters (warning, disturbing link). Now, not only can I use bogus takedown requests to pull down those videos (think a global DMCA) but I can also get the private information of the poster. No doubt the poster's arrest, rape, and unfortunate "suicide" will follow. Good God, ACTA is like a Swiss Army knife for autocrats. It slices, it dices, it censors, and it traces.

Surely, if we adopt ACTA, we will receive requests for greater information transparency from countries with very different understandings of privacy and human rights. ACTA will encourage our allies to curtail Internet freedom (and I very much doubt that the US will voice much protest). Worse still, ACTA will provide legal leverage/cover for the world’s most repressive regimes to silence their critics at home and abroad. We should not, and must not, legitimate censorship and digital oppression.

(Andrew Moshirnia is a second year law student and CMLP blogger. He is learning to hate good intentions.)

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Subject Area:

Szukalski v. Frey

DMLP Staff — Thu, 14 Jan 2010 19:48:45 +0000

Threat Type:

Correspondence

Party Receiving Legal Threat:

Patrick Frey

Date:

01/09/2010

Type of Party:

Individual

Status:

Pending

Type of Party:

Individual

Location of Party:

Australia

Location:

California

Jurisdiction:

California

Location of Party:

California

Legal Counsel:

Pro Se

Source of Law:

United States

Verdict or Settlement Amount:

N/A

Legal Claims:

Legal Counsel:

Pro Se

Ted Szukalski, an Australian photographer, sent blogger Patrick Frey of Patterico's Pontifications what purported to be a DMCA takedown notice on January 9, 2010. The takedown notice complained about Frey's blog post that reproduced and commented on a photoshopped... read full description

Web Site(s) Involved:

Patterico's Pontifications

Content Type:

Photo

The image in question is a photshopped version of Szukalski's photograph of a homeless man shining the shoes of a seated woman (see the non-modified version titled Shoeshine - homeless and a woman client MG_6348-27). The modified version does away with Szukalski's copyright notice and replaces the heads of the shoe shiner and woman with those of President Obama and Sarah Palin, respectively.

The photoshopped image caused a small stir in early January 2010 when a Colorado Department of Transportation worker faced discipline for forwarding the image. Frey's post took issue with another blogger's description of the incident as an "ugly little upwelling of racism from the right wing base," pointing out that the woman who forwarded the email was a registered Democrat.

Frey responded in an email refusing to take down the image and asserting that his use of the photograph for political commentary was a classic example of fair use. As of the date of this writing, Szukalski had taken no further action.

Publication Medium:

Blog

Subject Area:

Copyright
Fair Use

International Olympic Committee v. Giles

DMLP Staff — Thu, 10 Dec 2009 14:32:54 +0000

Threat Type:

Correspondence

Party Receiving Legal Threat:

Richard Giles

Date:

10/06/2009

Type of Party:

Organization

Status:

Concluded

Type of Party:

Individual

Location of Party:

Switzerland

Location:

Australia

Jurisdiction:

Australia

Location of Party:

Australia

Legal Counsel:

Howard M. Stupp

Verdict or Settlement Amount:

N/A

Legal Claims:

Breach of Contract

Trademark Infringement

Priority:

1-High

Legal Counsel:

Pro Se

The International Olympic Committee (IOC) sent an email to a Flickr user Richard Giles asking him to cease and desist from distributing and/or licensing photographs of the 2008 Beijing Olympic events that he had photographed while at the games and... read full description

Web Site(s) Involved:

www.flickr.com

Relevant Documents:

3988389213_da172a8da0_b.jpg

Content Type:

Photo

Giles originally put the photographs online under a CC Attribution-Share Alike License (CC BY-SA), but then relicensed them under a CC Attribution-No-Derivatives License (CC BY-ND) upon the request of a Wikipedia user, so that they could be used in a Wikimedia project. Later on, a British bookstore used one of Giles' pictures for promoting a book. When this came to IOC's attention, they sent the cease and desist letter to Giles.

IOC invoked contractual limitations found on the back of tickets:

As you know, when entering any Olympic venue, you are subject to the terms and conditions mentioned on the back of entry tickets, under which images of the Games taken by you may not be used for any purpose other than private, which does not include licensing of the pictures to third parties.

The letter also suggested a trademark-oriented claim:

Olympic identifications such as the Olympic rings, the emblems and mascots of the Olympic games, the word 'Olympic' and images of the Olympic games belong to the IOC and cannot be used without its prior written consent.

Giles reports that it was not clear to him what exactly the IOC wanted him to do, so a chain of mutual emails followed, in which IOC clarified its position that the only acceptable copyright notice for pictures from Olympic events would be "all rights reserved." In an effort to keep the CC licensing regime, Giles counter-suggested licensing the pictures under a noncommercial CC license, but IOC declined:

IOC's current policy is to restrict the use of pictures taken at the venues to private, domestic and non-commercial use and does not allow licensing of pictures to third parties, even for free non-commercial use, for the reasons I explained in my previous email.

Therefore, for the time being the IOC considers full copyright as the only suitable credit and asks that you change the license of the photos taken inside of the Olympic venues to 'all rights reserved'.

Throughout the course of these events Giles was in touch with the Electronic Frontiers Australia, a nonprofit organisation supporting online freedoms and rights, and Creative Commons Australia, both of which advised him that as a first step he should comply with the IOC's demand. Eventually Giles reverted all pictures to full copyright protection, adding a note under every picture: "The license on this photo has been changed from Creative Commons to Copyright [sic] due to a request from the IOC."

Publication Medium:

Website

Subject Area:

Copyright
Trademark
Licensing

Australia's Facebook Five and the Right to Whinge About Your Boss Online

Arthur Bright — Fri, 18 Sep 2009 17:40:40 +0000

It's hard to be a prison guard in Australia, and not just because the entire country is a penal colony — zing! Apparently you run the risk of being fired for griping about your job in a private Facebook group, even if other corrections officers are the only ones reading your complaint. Such is the threat looming over those officers whom the Australian press has dubbed the Facebook Five. (Although apparently there are six of them. Go figure.)

According to the Sydney Morning Herald, the corrections officers set up the Facebook group last October and used it as a place to vent about the New South Wales ("NSW") government's plans to privatize some of the state's prisons. They also used the group to gripe about their boss, NSW Corrective Services Commissioner Ron Woodham. According to the Associated Press, the Facebook group was private, so that only those invited to join could view posts.

Somehow Woodham caught whiff of what was being written in the group. The Herald says that the six officers were informed that the Corrective Services Department was considering firing them based on the "bullying" and "harassment" that they were involved in on Facebook. Naturally, the officers were less than pleased, and their union, the Public Service Association of New South Wales ("PSA"), has take the issue to the Industrial Relations Commission ("IRC") to halt the department's firing process and protect the officers' off-hours speech. PSA senior industrial officer Stewart Little lays out the union's position to the Herald:

"What people do in their own time is their own business and shouldn't be subject to misconduct," Mr Little said.

"Talking on Facebook is the same as people talking in the pub letting off steam but the department is trying to say it's like going on ABC News at night.

"We say it's somewhere in between the two, but much closer to the lower end of the spectrum."

Now, just based on common sense, the officers would seem to have a reasonable case. It's difficult to see that communication to a private group online, even if hosted by Facebook, constitutes a fireable offense. But I know very little about Australian law, so let's take a look at some of the talking heads cited for legal expertise by the various reports on the case. Quoth Australia's Computerworld:

Lecturer from the School of Communication at Deakin University, Ross Monaghan, says anybody with a social networking profile needs to think about both the personal and professional ramifications of what they post online.

"If what you’re putting online would embarrass you if it ends up on the front page of a newspaper tomorrow, don’t do it," Monaghan said.

"If people are putting defamatory comments online I think people have to expect that the employer will abide by the law."

Well, yes. But one wonders upon reading this whether Mr. Monaghan was being asked about the implications of posting to private spaces online. It sounds like he's just giving the usual warning about public posts. Not very helpful. So what did the Associated Press's experts say?

Peter Black, a Queensland state University of Technology lecturer on Internet law, said that writing something unpleasant about someone online "is different from a conversation over a cup of coffee or a barbecue because there is always a record kept in the online environment which is usually searchable."

Lawyer Stuart Cole-Morgan said a conversation on Facebook or MySpace with colleagues or about colleagues could legally be considered work-related.

"I think the workplace would be considered to extend that far and certainly if we look at activity such as sexual harassment outside the workplace, that has been considered to impact on work," Cole-Morgan told Australian Broadcasting Corp. radio.

Seriously, this is the AP's legal summary? I am unimpressed. But let's look at Mr. Black's comment first: that Internet is different from a conversation because it's recorded and searchable. Again, yes. But this doesn't tell us much beyond the painfully obvious. It certainly doesn't tell us anything about the legal issues involved in the case. How does searchability and permanence impact a public employer's ability to discipline its employees for off-hours speech?

On to Mr. Cole-Morgan's comment that the workplace could extend to the locale of work-related conversations. This is more helpful. It suggests that the department will argue that the officers were still "in the workplace" during their Facebook venting sessions, and as such, could be disciplined as if at work.

Still, this seems counterintuitive. After all, if there's one thing that is universal to all employees, no matter what nation, culture, or planet they're from, it's getting together after work and bitching about bosses. Cole-Morgan can't really be insinuating that every boss-slamming utterance to a coworker that occurs in an Australian pub, picnic, or rec room is legally "within the workplace," can he?

So from the press clippings, it's hard to assess how the Facebook Five (of whom there are Six) will fair in their case. Were they in the US, they'd have a much easier time of things. Pickering v. Board of Education, 391 U.S. 562 (1968), sets the standards for whether a public employee's speech authorizes the government to terminate his/her employment. Under Pickering's test, one first examines whether the speech at issue is on a topic of public concern. If it is, one then balances the employee's speech interest against that of the employer's interest in workplace efficiency.

Now, the prison system's privatization and wasted finances are almost undeniably of public concern. Thus, the officers would seem to easily meet the first prong of the test. As far as the second prong goes, it's unclear that the officers' intra-group complaints affected their performance, but it's entirely clear that they have a strong interest in speaking out on issues of public concern. And, in any event, it's hard to believe that the officers' venting online was any more problematic than if they did the same thing after hours in a pub. So, based on the evidence the news reports provide, it ought to be a slam-dunk for the officers.

But that's all just a mental exercise anyway, because the prison officers' case is under Australian law. Still, it might be useful to them to bring up some comparative international law, especially because Facebook's user base is international — one wouldn't need to change too many facts in this case to implicate choice of law concerns (say, if the Facebook group were not merely Australia-centric, but included corrections officers from around the globe who criticized the NSW plans). Anyway, the IRC's hearing is set to resume next Wednesday; it'll be interesting to see how this turns out.

Update (3/25/2010): The Age reports that the prison officers won their case against the NSW Corrective Services Department.

(Arthur Bright is a third-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at The Christian Science Monitor.)

Jurisdiction:

Australia

Content Type:

Text

Subject Area:

Williams v. Advertising Sex, LLC

DMLP Staff — Fri, 29 Aug 2008 19:36:32 +0000

Threat Type:

Lawsuit

Party Receiving Legal Threat:

Advertising Sex, LLC; Raymond Williams; Palmbeach-Online.Com, Inc.; Kenneth M. Boyd; Steve Bryant ; G.A.M.E.; Nicholas Cain; Cain Web Design, Inc.; Charlie Hintz; Mental Shed, LLC; Chris Hartmann; XOTECK, LLC; VIDBIDNESS, INC.; Eric Ridley; Performan

Date:

03/18/2005

Type of Party:

Individual

Status:

Pending

Type of Party:

Individual

Organization

Disposition:

Dismissed (partial)

Location of Party:

West Virginia

Location:

West Virginia

Jurisdiction:

West Virginia

Location of Party:

California
Texas
New York
Florida
Pennsylvania
Ohio
Virginia
Tennessee
Wisconsin
Nevada
Delaware
Canada
Australia
Netherlands
Cayman Islands
South Africa
Belgium

Legal Counsel:

Stephen M. LaCagnin, Andrew M. Wright, and Woodrow E. Turner

Source of Law:

West Virginia

Verdict or Settlement Amount:

N/A

Legal Claims:

Defamation

False Light

Intentional Infliction of Emotional Distress

Right of Publicity

Court Name:

U.S. District Court for the Northern District of West Virginia

Legal Counsel:

Robert R. Waters (for Vitigliano and Xoteck, LLC); John W. Dozier (for Chris Hartmann & Xoteck); Stephen P. Goodwin, Alexander D. Pencu, Joseph L. Clasen, William J. Kelleher, III & Raymond S Franks, II (for Castle Co. Pty Ltd, The Moles Trust, Russe

Court Type:

Federal

Case Number:

1:05CV51

Web Site(s) Involved:

Taxi Driver

Relevant Documents:

2005-03-18-Williams Complaint.pdf

2005-04-22-Williams Motion for Preliminary Injunction.pdf

2006-11-06-Williams Motion for Premanent Injunction.pdf

2006-11-07-Order Granting Permanent Injunction.pdf

2007-02-17-Order Denying Preliminary Injunction and Granting Vitagliano Motion to Dismiss.pdf

2007-08-31-Order Granting Vitagliano's Motion to Dismiss.pdf

2006-11-13-Motion to Dismiss for Lack of Jurisdiction by Joseph Vitagliano.pdf

2006-11-27-Williams Opposiiton to Vitagliano Motion to Dismiss.pdf

2006-12-04-Vitagliano Reply Brief in Support of Motion to Dismiss for Lack of Jurisdiction.pdf

Content Type:

Video

Former Miss West Virginia, Allison Williams, filed a lawsuit against approximately sixty defendants, including Joseph Vitagliano, who operates Taxi Driver, a website that focuses on celebrity gossip and regularly features nude or semi-nude photographs of female celebrities. Williams alleges that Vitagliano defamed her by posting an advertisement on his website that falsely indicated that she, as Miss West Virginia, participated in a pornographic video that was available for download.

Williams' complaint alleges defamation, false light invasion of privacy, misappropriation of name and likeness, and violation of the right of publicity. Williams seeks permanent injunctive relief.

According to filings in the case, Vitigliano's website contained advertisments for pornographic websites, including an advertisement for a site that allegedly offered to sell a pornographic video described as depicting "Allison Williams, Miss West Virginia." Williams avers that she never appeared in the sex tape advertised on Taxi Driver, and has never appeared in any other pornographic video.

On August 31, 2007, the Court held that it lacked personal jurisdiction over Vitigliano because he had not purposefully availed himself of contacts in West Virginia. The suit continues as to a number of the other defendants.

The case is also noteworthy because the court allowed plaintiff to serve litigation documents on one of the foreign defendants by email (see Internet Cases blog on this).

Publication Medium:

Website

Subject Area:

Defamation
Personal Jurisdiction

2clix v. Wright

DMLP Staff — Fri, 02 May 2008 19:00:05 +0000

Threat Type:

Lawsuit

Party Receiving Legal Threat:

Simon Wright

Date:

08/17/2007

Type of Party:

Organization

Status:

Concluded

Type of Party:

Individual

Disposition:

Withdrawn

Location of Party:

Australia

Location:

Australia

Jurisdiction:

Australia

Location of Party:

Australia

Legal Counsel:

Stephen Baldwin

Source of Law:

Australia

Verdict or Settlement Amount:

N/A

Legal Claims:

Trade Libel

Court Name:

Supreme Court of Queensland (Australia)

Court Type:

State

Case Number:

7/79/09

Web Site(s) Involved:

Forums.whirlpool.net.au

Relevant Documents:

2007-09-17-Statement of Claim.pdf

Content Type:

Text

In August 2007, 2Clix Australia sued Simon Wright, the founder of Australian broadband discussion forum Whirlpool, for alleged "injurious falsehood." According to 2Clix, Wright permitted anonymous users of the forum to post unmediated comments, and two threads contained "false and malicious" comments about 2Clix and its softward products. According to 2Clix's statement of claim, the threads included statements that 2Clix "has problems" and that it was losing its employees and relying on independent contractors. In addition, forum participants allegedly warned readers to avoid 2Clix's software.

2Clix filed suit after Wright refused to acquiesce to its repeated email requests to remove the content. 2Clix sought an injunction requiring Wright to remove the threads and damages in the amount of Aus$150,000. Wright defended the claim through the support of donations from users of his site. 2Clix withdrew its claim less than a month later.

Publication Medium:

Forum

Subject Area:

Third-Party Content
Trade Libel

Australian Foreign Minister "Condemns" YouTube Video

Sam Bayard — Tue, 08 Jan 2008 15:29:59 +0000

Here is a weird one from the New York Times Lede blog: An anonymous person posted a video on YouTube that accuses the Australian government of opposing Japan’s whaling practices because of its "prejudice and racism against the Japanese." In response, Foreign Minister of Australia Stephen Smith issued an audio statement condemning the video and re-affirming the Australian government's view that Japanese whaling should cease. In his statement, Smith repeatedly draws attention to the anonymous character of the video and, according to Agence France-Presse, he even commented to reporters: "It's anonymous, so that tells you something before we even start."

I suppose this doesn't qualify as a legal threat, which is a good thing. When faced with critical speech, it's refreshing to see a government use more speech to address the situation, rather than censorship. This is encouraging, especially coming from a government that recently issued an Internet policy statement that raises some serious free speech concerns.

Jurisdiction:

Australia

Content Type:

Video

Digital Media Law Project - Australia

Toxic Lunch: Digesting the Latest ACTA Leak

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Paving Hell: ACTA Encourages Oppression from Friend and Foe Alike

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Szukalski v. Frey

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International Olympic Committee v. Giles

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Australia's Facebook Five and the Right to Whinge About Your Boss Online

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Williams v. Advertising Sex, LLC

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