The aftermath
After Kipling, presumably:
“After a ‘great’ constitutional case, the tumult and the shouting dies. The captains and the kings depart. Or at least the captains do; the Queen in Parliament remains forever. Solicitors-General go. New Solicitors-General come. This world is transitory. But some things never change. The flame of the Commonwealth’s hatred for that beneficial constitutional guarantee, s 51(xxxi), may flicker, but it will not die. That is why it is eternally important to ensure that that flame does not start a destructive blaze.”
JT International SA v Commonwealth [2012] HCA 43 (5 October 2012) (Heydon J)
The literary Justice Heydon
“This great renversement des alliances created a new and unexpected hurdle for the defendants. So the Court was as on a darkling plain, swept with confused alarms of struggle and flight, where ignorant armies clash by night – although the parties were more surprised than ignorant.”
Williams v Commonwealth [2012] HCA 23 (20 June 2012)
MR GLEESON: Your Honour, that hypothesis would remove some of the critical planks that I am relying upon, but not all of them. It would remove some of the critical planks because we would no longer have punishment per se, we would no longer have the public order injunction. We would be closer to the area of private law rights.
HEYDON J: What if the individuals who were damaged did not bother about the Commission and just brought their own action? They are still relying on a public order statute.
MR GLEESON: Yes. That again has removed a further plank from our argument and is closer to the area of —
HEYDON J: I just want to see how much we jettison before we start swimming.
Figure 8P
French Supreme Court orders de-indexing of autocomplete search queries
In a claim brought by a French collecting society, the Cour de Cassation has ordered Google to delete the keywords “Torrent”, “Rapidshare” and “Megaupload” from its auto-completion keyword suggestion tool for French users.
The basis for the injunction is that Google is facilitating — providing the ‘means’ — of infringing the claimants’ copyrights. However, the Court confirmed that Google is not itself legally responsible for any infringements taking place on sites linked to in search results, even where it suggests the query. Sensibly, this is because subsequent infringements require ‘a voluntary act of the user’.
Nevertheless, the balance of convenience favoured injunctive relief since this would provide an easy way to reduce infringement by making it more difficult for users to locate infringing materials (even though they still remain available).
The Court qualified its order by noting that it is “without … any reason to expect total efficiency”. In other words, if Google’s automated keyword de-indexing fails to remove all queries related to the infringements, it won’t be in breach of the order. This makes sense given that suggestions are generated algorithmically and not actively monitored by Google.
The decision isn’t really surprising — Google has already been filtering certain keywords (mostly relating to pornographic, illegal and infringing materials) from autocomplete since mid-2010. However, it does confirm the Court’s power to grant an injunction under the Enforcement Directive if Google’s voluntary removal doesn’t go far enough.
That being said, from the Court’s judgment, it is unclear whether it paid any regard to the article 10 implications of interfering in query composition. While it will still be possible to access the search terms manually (by typing them rather than selecting a query from the autocomplete dropdown), the situation would be different if the order sought to ban entire queries or classes of query.
More from The Register.
Facebook mistakenly removes report by free speech NGO, irony ensues
This week’s ironic example of private censorship:
Callamard said: “The deletion shows the looming threat of private censorship. We commend Facebook for creating tools to report abuse, but if your post was wrongly deleted for any reason, there is no way to appeal. Facebook don’t notify you before deleting a comment and they don’t tell you why after they have. Facebook act like judge, jury and executioner.”
She added: “Facebook is now widely recognised as a quasi-public space and as such has responsibilities when it comes to respecting free speech. They can’t just delete content without some kind of transparent and accountable system. International law says that censorship is only acceptable when it is clearly prescribed, is for a legitimate aim – such as for public health – and is necessary in a democracy.”
The cost of defending patent troll litigation: $29bn annually
The $29 billion number comes from measuring … legal fees going to lawyers, and the licensing fees paid in tribute to make the trolls go away … The findings come from a relatively small sample of 83 companies, both small and large.
The median amount spent to pay off a troll suit is just $230,000 for large companies and $180,000 for small- and medium-size defendants. The discrepancy means that the great majority of trolls go away after getting relatively small payouts, while a few very strong entities in the patent-trolling business are able to pull off giant multimillion-dollar settlements. …
The second-largest cost is, unsurprisingly, fees paid to defense lawyers. Big companies spend a mean of $1.52 million per litigation, while small- and medium-sized companies spend $420,000. Again, those compare to much lower median figures …, showing that the companies have a large number of cheaply defended cases, while a few heavily litigated cases run up big fees.
Patent cross-citations used to predict new technology clusters
This sounds a bit like PageRank for patents:
Érdi’s team have written software that not only charts this evolution, but also hits the fast-forward button on the rate and type of citations to help predict whether existing technological fields can combine or diverge to create new areas of innovation.
“Patent citation data seems to be a gold mine of new insights into the development of technologies, since it represents the innovation process,” says Érdi. They tested their algorithm on old data from the US Patent and Trademark Office’s “agriculture, textiles and food” category of inventions and found that it predicted the emergence of a field recently created to cover nonwoven textiles - fabrics whose fibres are squeezed or forced together, often using solvents as bonding agents.
ICANN releases list of gTLD applications
Personal favourites include:
- .afl
- .cancerresearch (umm, okay?)
- .changiairport (for all your free WiFi needs)
- .dog
- .guardianmedia (and .guardian)
- .hiv (just the association every brand wants)
- .melbourne (like .sydney, one of few cities to apply)
- .northwesternmutual (because everyone wants to type that instead of .com)
Looking through this list, it seems that some applicants have rather missed the point of the gTLD process. Either that, or they’re drastically overestimating the need for defensive registrations.
Unsurprisingly, .cloud, .app, .news, and .movies were all hotly contested. Enjoy your $185,000 application fee, suckers.
The Pirate Bay has been blocked in India, along with other popular BitTorrent trackers. This apparently follows an order by the Department of Telecommunications (the legal status of which remains unclear) to block access. Visitors now see a block message like the one above.
Source: yro.slashdot.org
Context-free patent art. This is really quite excellent.
Twitter approves defensive patent strategy
The IPA is a new way to do patent assignment that keeps control in the hands of engineers and designers. It is a commitment from Twitter to our employees that patents can only be used for defensive purposes. We will not use the patents from employees’ inventions in offensive litigation without their permission. What’s more, this control flows with the patents, so if we sold them to others, they could only use them as the inventor intended.
While it’s a nice gesture, a couple of big question marks remain: (1) it looks like only employees will actually have standing to enforce this against the company, which kind of limits its utility if they still owe parallel contractual duties to act in the best interests of their employer; and (2) the scope of “Defensive Purpose” is quite broad - it includes offensive actions against any company that has filed a patent suit within the last decade (so, almost anyone) and actions “to deter a patent litigation threat”. In other words, it might still encompass quite a lot of the tit-for-tat litigation going on between patentees wishing to negotiate more favourable licensing arrangements.
“Do you understand that no one owns the Java programming language?” lead counsel Robert Van Nest asked. Ellison began a longer answer, but Judge William Alsup interrupted him and said it was a “yes or no” question. Finally Ellison said, “I’m not sure.”
“And anyone can use it without royalty?” Van Nest followed up.
“I’m not sure,” Ellison said again.
Then Van Nest showed a video of Ellison receiving the same question on a deposition video and answering “That’s correct” to both.
Source: Wired
Image of the day: Amazon book availability by decade (from a random sample of 2500). If this is representative of the wider catalogue, this paints a very troubling picture of post-copyright reprinting.
Source: The Atlantic
