Court-Approved Update About Google Book Search Settlement

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK Supplemental Notice To Authors, Publishers And Other Book Rightsholders About The Google Book Settlement The parties in Authors Guild, et al. v. Google Inc . announced a settlement of the litigation in October 2008 and sent out a Notice of that settlement (the "Original Settlement"). The parties have now amended the Original Settlement in response to discussions with the United States Department of Justice and objections to the Original Settlement (the "Amended Settlement"). The Amended Settlement Agreement ("ASA"), as well as the original Settlement Agreement and the original Notice, may be found at http://www.googlebooksettlement.com or obtained from the Settlement Administrator. This Supplemental Notice is not designed to replace the original Notice, but rather, to supplement that Notice. This Supplemental Notice identifies: The material amendments to the Original Settlement, Your rights under the Amended Settlement, and The date of the fairness hearing scheduled to determine whether the Amended Settlement should be granted final approval. IMPORTANT UPDATE: The deadline to claim Books and Inserts for Cash Payments has been extended from January 5, 2010 to March 31, 2011. The Removal deadline as to Google has been extended from April 5, 2011 to March 9, 2012. (The Removal deadline as to the libraries' digital copies remains April 5, 2011.) Summary of Amendments to the Original Settlement 1. Amended Settlement Class. The definition of Books has been narrowed. As a consequence, many class members under the Original Settlement are no longer class members under the Amended Settlement. Rightsholders Who Are Included in the Amended Settlement Class For United States works, the definition of Books remains largely unchanged: United States works must have been published and registered with the United States Copyright Office by January 5, 2009 to be included in the Amended Settlement. Under the Amended Settlement, however, if the works are not United States works, they are only included in the Amended Settlement if they were published by January 5, 2009 and either were registered with the U.S. Copyright Office by that date or their place of publication was in Canada, the United Kingdom ("UK") or Australia. As a result of the narrowing of the definition of Books, the scope of Inserts has been narrowed as well. Please note that you may be a member of the Amended Settlement Class even if you do not reside in the United States, Canada, the UK or Australia. If your work meets the criteria above, then you are a member of the Amended Settlement Class regardless of where you reside and regardless of where else your work may also have been published. (ASA Section 1.19) A work will be considered to have a place of publication in Canada, the UK or Australia if its printed copy contains information indicating that the place of publication was in one of those three countries. Such information may include, for example, a statement that the book was "Published in [Canada or the UK or Australia]," or the location or address of the publisher in one of those three countries. Rightsholders Who Are Not Included in the Amended Settlement Class As a result of these amendments, if the only United States copyright interests you own are in works that were not either (a) published and registered with the United States Copyright Office by January 5, 2009 or (b) published in Canada, the UK or Australia by that date, you are not a member of the Amended Settlement Class, even if you were a member of the original Settlement Class. If you are not a member of the Amended Settlement Class, you will not be eligible to participate in the Amended Settlement and you will not be bound by its terms. You retain all rights to sue Google for its digitization and use of your copyrighted material without your permission. If you wish to sue Google for such digitization and use, you must do so in a separate lawsuit. Your rights may be affected by laws limiting the time within which you may bring such a suit. If you are interested in bringing a lawsuit against Google, you should consult your own attorney. If you were a class member under the Original Settlement, but are not a class member under the Amended Settlement, you should visit http://books.google.com/books-partner-options in order to learn about Google's current policies with respect to the removal of your works from its databases, as well as Google's interest in making your works accessible in models similar to those in the Amended Settlement under similar terms. 2. Commercially Available. The Amended Settlement clarifies that a Book is Commercially Available if it is being offered for sale new by a seller anywhere in the world to a buyer in the United States, Canada, the UK or Australia. (ASA Section 1.31) The Amended Settlement now provides that Google will not display any Book it classifies as not Commercially Available for at least 60 days after the date of that classification, or the Effective Date, whichever is later. The Amended Settlement also now provides that, if a Rightsholder asserts that a Book is Commercially Available, Google will not display the Book unless Google successfully challenges that assertion in a dispute. (ASA Sections 3.2(d)(i) and 3.3(a)) 3. Representation of Canadian, UK and Australian Rightsholders on the Board of the Registry. The Amended Settlement provides that the Board of the Book Rights Registry (the "Registry") will, at a minimum, have one author and publisher director each from Canada, the UK and Australia. (ASA Section 6.2(b)(ii)) 4. Monitoring for Rightsholders Outside the United States. Because the services authorized by the Amended Settlement will be unavailable to users outside the United States, the Registry will, upon request, monitor Google's use of Books and Inserts to ensure that they conform to the requirements of the Amended Settlement and to Rightsholders' instructions, and will attempt to provide a means for such Rightsholders themselves to monitor and verify their claimed Books and Inserts. (ASA Section 6.1(f)) 5. Dispute Resolution Optional For Rightsholders. The Amended Settlement now provides that Rightsholders may agree not to arbitrate disputes between or among them under the dispute resolution mechanism in the Amended Settlement. In addition, Rightsholders (but not Google) can elect to participate in any arbitration by teleconference or videoconference in order to save travel costs. (ASA Sections 9.1(a) and 9.3(a)) 6. Independent Representation For Rightsholders of Unclaimed Books and Inserts. The Registry will include a fiduciary who will have the responsibility for representing the interests of Rightsholders with respect to the exploitation of unclaimed Books and Inserts. (ASA Section 6.2(b)(iii)) 7. Unclaimed Books and Inserts and Unclaimed Funds. The Amended Settlement clarifies that, from its inception, the Registry will use settlement funds to attempt to locate Rightsholders. The Amended Settlement also now provides that funds owed to Rightsholders of unclaimed Books and Inserts ("Unclaimed Funds") will not be used by the Registry for general operations or reserves and will not be distributed to claiming Rightsholders. The Amended Settlement makes the following changes to the Original Settlement: (a) after Unclaimed Funds are held for five years, the Registry, in collaboration with organizations in Canada, the UK and Australia, and in consultation with the fiduciary, may use up to 25% of the funds for the sole purpose of locating Rightsholders; and (b) remaining Unclaimed Funds will be held for the Rightsholders for at least 10 years, after which the Registry, subject to fiduciary approval as to timing, may apply to the Court for permission to distribute Unclaimed Funds to literacy-based charities in the United States, Canada, the UK and Australia, upon notice to Rightsholders, the attorneys general of all states in the United States and Fully Participating and Cooperating Libraries. (ASA Section 6.3) 8. Commitment to Improving Claiming Process and Website. The Amended Settlement provides that the Registry and Google (for as long as Google continues to provide operational support for the Registry) will maintain and improve the Settlement Website to facilitate the claiming of Books and Inserts. Google will also work to correct errors in the Books Database. (ASA Section 13.3) 9. Additional Revenue Models. The Amended Settlement now limits the potential new revenue models to the following three additional Revenue Models, which must be approved by the Registry: Print-on demand ("POD"), File download (formerly "PDF Download"), and Consumer subscription. The Amended Settlement limits POD, if approved, to Books that are not Commercially Available. In addition, the Amended Settlement specifies that the revenue split between Google and Rightsholders as to the additional Revenue Models will be the same as for the existing Revenue Models. Finally, the Amended Settlement provides that Rightsholders of claimed works (and the fiduciary for unclaimed works) will be given timely advance notice before an additional Revenue Model is launched, with an opportunity to exclude works from that model. (ASA Section 4.7) 10. Agreeing to Different Revenue Splits for Commercially Available Books. For Commercially Available Books, the Amended Settlement provides that either Google or the Rightsholder will have the ability to request renegotiation of the 63/37 standard revenue split for any or all revenue models. If they cannot reach an agreement, then neither of the parties is obligated to offer the Rightsholder's Books in the revenue models. (ASA Section 4.5(a)(iii)) 11. Discounting off Consumer Purchase List Price. Google will now have an unlimited right to discount the List Price of Books for Consumer Purchase, so long as it continues to pay 63% of the undiscounted List Price to the Registry for Rightsholders. The Registry may also authorize Google to make special offers of Books for Consumer Purchase at reduced prices from the List Price and pay 63% of the discounted List Price to the Registry for Rightsholders. Claiming Rightsholders (and the fiduciary for unclaimed Books), however, will be notified of this reduced price proposal and can disapprove it for their (or unclaimed) Books. (ASA Sections 4.5(b)(i) and (ii)) 12. Resale of Consumer Purchase. The Amended Settlement requires that Google allow third parties to sell consumer access to Books offered through Consumer Purchase, with the reseller receiving a majority of Google's 37% share of the revenue split. (ASA Section 4.5(b)(v)) 13. Non-discrimination Clause (i.e., "Most Favored Nations" clause). Section 3.8(a) of the Original Settlement has been eliminated from the Amended Settlement. 14. Settlement Controlled Pricing. The Amended Settlement clarifies that the Pricing Algorithm used to establish the Settlement Controlled Prices for Consumer Purchase will be developed to simulate the prices in a competitive market and that the price for a Book will be established without regard to changes to the price of any other Book. The Amended Settlement also clarifies that the Registry will not disclose the Settlement Controlled Price for a Book to anyone other than the Book's Rightsholders. (ASA Sections 4.2(b)(i)(2), 4.2(c)(ii)(2) and 4.2(c)(iii)) 15. Modification of Feature Restrictions. Rightsholders may authorize Google to modify or remove the Amended Settlement's default restrictions on Revenue Model features, such as copy/paste and print. (ASA Section 3.3(g)) 16. Registry Support for Alternative Licenses (Including Creative Commons). The Amended Settlement provides that the Registry will facilitate Rightsholders' wishes to allow their works to be made available through alternative licenses for Consumer Purchase, including through a Creative Commons license. For information about Creative Commons licenses, visit http://www.creativecommons.org. The Amended Settlement also clarifies that Rightsholders are free to set the Consumer Purchase price of their Books at zero. (ASA Sections 1.44, 4.2(a)(i) and 4.2(b)(i)(1)) 17. Public Access Terminals. The Amended Settlement authorizes the Registry to agree to increase the number of public access terminals at a public library building. (ASA Section 4.8(a)(i)(3)) 18. Pictorial Works. The Amended Settlement no longer includes children's book illustrations in the definition of Inserts. (ASA Section 1.75) The Amended Settlement, however, does not change the inclusion of pictorial works, such as graphic novels and children's picture books, in the definition of Books and provides that the Amended Settlement only authorizes Google to display the pictorial images in such Books if a U.S. copyright owner of the pictorial image also is a Rightsholder of the Book. The Amended Settlement also clarifies that comic books are considered to be Periodicals and that Periodicals (as well as compilations of Periodicals) are not included in the definition of "Books," and thus are not in the Amended Settlement. (ASA Section 1.104) 19. Music Notation. The definition of Book was amended in the Amended Settlement to better achieve the parties' goal of excluding books that are primarily used to play music. (ASA Section 1.19) Also, "music notation" is no longer included in the definition of Inserts. (ASA Section 1.75) 20. Deadline to Claim Usage and Inclusion Fees. Usage Fees will now be held for Rightsholders who have not yet claimed their Books for at least ten years and Rightsholders will now be eligible for Inclusion Fees if they claim their Books or Inserts within ten years of the Effective Date, instead of five years, in both cases as had been provided in the Original Settlement. (Plan of Allocation Sections 1.1(c), 1.2(c) and 2.2) Your Rights Under the Amended Settlement Agreement Members of the Amended Settlement Class have the following options: If you… Then… Deadline Wish to remain in the Amended Settlement Class (if you did not previously opt out of the Original Settlement) You need not do anything at this time. N/A Wish to remain in the Amended Settlement Class and wish to be eligible to receive a Cash Payment for any Book or Insert scanned on or before May 5, 2009 but haven't yet claimed your Books and Inserts You must submit a claim by using the Claim Form, available at http://www.googlebooksettlement.com or from the Settlement Administrator. March 31, 2011 Have already claimed Books and Inserts using the Claim Form You need not take any additional steps at this time with respect to those Books and Inserts. N/A Opted out of the Original Settlement, and wish to remain opted out of the Amended Settlement You need not – and should not – opt out again. Your opting out of the Original Settlement will serve as an opt-out of the Amended Settlement as well. N/A Did not opt out of the Original Settlement but wish to opt out of the Amended Settlement You may do so by following the instructions in the original Notice and at http://www.googlebooksettlement.com. January 28, 2010 Opted out of the Original Settlement and wish to opt back in to the Amended Settlement You may do so by notifying the Settlement Administrator or Class Counsel or by filling out the "Opt-Back-In Form" at http://www.googlebooksettlement.com. January 28, 2010 Wish to file an objection to the terms of the Amended Settlement If you have not opted out, you may file an objection by following the instructions in the original Notice and at http://www.googlebooksettlement.com . At this time, you may only object to the provisions amending the Original Settlement. All objections filed in connection with the Original Settlement are preserved unless withdrawn and should not be refiled. January 28, 2010 Wish to appear and be heard at the Fairness Hearing and have not yet filed a Notice of Intent to Appear You must file a Notice of Intent to Appear by following the instructions in the original Notice and at http://www.googlebooksettlement.com. February 4, 2010 Rescheduled Date of the Fairness Hearing The Court will hold a Fairness Hearing on February 18, 2010 at 10 A.M. in Courtroom 11A of the United States District Court for the Southern District of New York, United States Courthouse, 500 Pearl Street, New York, NY 10007, to consider whether the Amended Settlement, as set forth in the ASA, is fair, adequate and reasonable. Please review the original Notice for further information concerning participation in the Fairness Hearing. If you have any questions concerning this Supplemental Notice or the Amended Settlement, please contact Class Counsel, or the Settlement Administrator, whose contact information may be found in the original Notice or at http://www.googlebooksettlement.com. You may also contact the Settlement Administrator at: Google Book Search Settlement Administrator c/o Rust Consulting, Inc. PO Box 9364 Minneapolis, MN 55440-9364 +1.612.359.8600 (Tolls may apply. Toll-free numbers are available at http://www.googlebooksettlement.com.)

Apple v Nokia Patent Infringement Claim

http://www.businessweek.com/technology/content/dec2009/tc20091212_551557.htm

Tasty Trade Mark Case - Maltesers infrngement case fails

http://www.abc.net.au/news/stories/2009/12/11/2768897.htm

more details here

http://www.hunthunt.com.au/PageSys/DocView.aspx?DocumentID=2258

Role reversal - Groogle plaintiff in a US Trade Mark action

http://www.theage.com.au/technology/technology-news/google-sues-workfromhome-scammers-20091209-kizn.html

Man behind CSIRO's WiFi patent

http://www.theage.com.au/technology/sci-tech/how-australias-top-scientist-earned-millions-from-wifi-20091207-kep4.html

'Predatory Pricing'

http://www.theage.com.au/technology/technology-news/dvd-stores-upset-by-price-war-20091204-kay9.html

This phrase sounds nasty and might appeal to journalists and small
traders, but of the limited facts in this story - none of the elements
required to establish this conduct are discussed.

Another Apple Trade Mark case in Australia

http://www.theage.com.au/technology/biz-tech/apple-trying-to-rip-out-our-core-macpro-boss-20091203-k7nr.html

Key lesson in this for business people (and business students soon to
be business people) - get registered.

Think Burger King.

eBay fined over listings for counterfeit goods in Europe again

http://www.managingip.com/Article/2349272/eBay-fined-in-France-again---updated.html

spammer fined

http://www.theage.com.au/technology/security/email-superspammer-fined-16m-20091201-k1sc.html

Another UGG boot decision

http://www.copyright.org.au/news/news_items/cases-news/2009-cases/u30018

Paper on commercial value of publicity rights

http://www.arentfox.com/email/obrien/Right%20of%20Publicity%20October%202009%20entertainmentandsports.pdf

Second post featuring Courtney Love for the year...sorry

Allegedly defaming via Twitter:

http://www.cnn.com/2009/TECH/11/17/law.technology/index.html

Murdoch's anti-Google hetoric again

http://www.theage.com.au/technology/biz-tech/google-says-murdoch-stories-can-be-taken-off-20091111-i7vu.html

Hugh Grant, Keira Knightley, Daniel Craig, plumbers and confidential information

http://www.theage.com.au/business/plungers-at-40-paces-as-former-ten-boss-sued-in-plumbing-war-20091106-i0lb.html

could this open the floodgates for s52 actions here in Australia....

http://news.ninemsn.com.au/world/925734/man-sues-lynx-after-failing-to-get-girl

Is it any wonder

that many in the media content consuming public have no qualms about
downloading unlicensed copies of music, movies etc ...

http://www.theage.com.au/lifestyle/people/studio-turns-dementor-over-harry-potter-party-20091027-hj3f.html

Very interesting story on a Patent Troll's earnings

http://thepriorart.typepad.com/the_prior_art/2009/10/how-much-money-a-patent-troll-makes-sp-technologies.html

Thanks to Eric Goldman for the pointer

Nokia allege Apple's iPhone infringes patents

http://www.theage.com.au/digital-life/mobiles/nokia-sues-apple-over-iphone-20091023-hbop.html

Jennifer Hawkins, swimwear and trade marks

http://news.ninemsn.com.au/article.aspx?id=871846

Apple v Woolworths

http://www.theage.com.au/business/apple-bites-over-woolworths-logo-20091005-ghzr.html

Pop Music Copyright again

http://www.theage.com.au/national/amazing-copyright-case-dismissed-by-the-federal-court-20091009-gptb.html

More famous musician IP action - this time from Marshall Mathers

http://www.theage.com.au/technology/biz-tech/eminem-publisher-takes-apple-to-court-over-rights-20090925-g4zl.html

The real fun of the rock and superstar's lifestyle

Copyright actions...

http://www.abc.net.au/news/stories/2009/09/16/2687956.htm

Thanks to my MBA student Eli for this tip

An interesting one for followers of Marketing Law

http://www.theage.com.au/digital-life/games/nirvana-members-dismayed-by-kurt-cobain-avatar-20090911-fkfr.html

Use of an animated likeness in a console game.

Guylian loses shape trademark battle after 7 years

a good summary here

http://www.freehills.com.au/5336.aspx

McKebab

Another Mc trademark issue....

Thanks to my student Alex for this pic of a shop he saw a couple of years ago in Bratislava.

A current McDonalds Trademark case from Malaysia

http://news.in.msn.com/international/article.aspx?cp-documentid=3206913

Thanks to Aamod, a former MBA student of mine for sending this one
through

Rock star comment on anti piracy proposals

http://www.theage.com.au/technology/technology-news/rock-stars-slam-disconnection-plan-for-pirates-20090907-fdtd.html

Copyright Essay Competition

A reminder that entries for the 2009 GC O'Donnell essay prize are due
by 30 September 2009. The prize of $3,500 is awarded to the author of
an unpublished essay displaying original thinking on a topic of the
author's choice regarding copyright and the protection of the
interests of authors.

The winning entry is likely to exhibit original ideas on issues of
practical importance in copyright or on copyright theory. The
competition is open to anyone interested in copyright, including
authors, lawyers and students.
More information is available at http://www.copyright.org.au/essayprize

Qld Police collaborate with Nigerians to fight scammers

http://www.abc.net.au/pm/content/2009/s2670246.htm

Apparently a world first

A good current example of a s52 matter

From the free CCH Online service

http://www.cch.com.au/au/News/ShowNews.aspx?ID=32869&Type=F&TopicIDNews=7&CategoryIDNews=0&u_i=113362

A face case ...

Thanks to the IPKat for this one

http://ipkitten.blogspot.com/2009/08/choc-shock-as-ex-child-wins-face-off.html

reminiscent of Homer Simpson's Mr Sparkle

http://www.youtube.com/watch?v=VUNHwP2q7bA

Great Australian Story this week - David v Goliath patent battle

Watch it online:

http://www.abc.net.au/austory/

Being a grieving fan - not a defence to copyright infringement

http://www.theage.com.au/national/jackson-fan-fined-for-pirating-music-20090812-eibc.html

SOme more on Michael Jackson IP

http://www.google.com/hostednews/ap/article/ALeqM5gcgZSOHfS8E0D4mqmDq5hIN6X1NQD99RC7K80

Seems he never registered 'King of Pop'

Don't know if Snape was in on these seizures

http://www.theage.com.au/national/police-bust-harry-potter-piracy-ring-20090806-ea8s.html

Another click-fraud action against Google

Complaint can viewed here

http://www.scribd.com/doc/18065300/Price-v-Facebook-Complaint

Roger Gamble and I had a piece in The Age today

http://business.theage.com.au/business/consumer-rights-dont-check-out-in-shops-20090803-e78y.html

Some interesting findings that retail staff, including those who have
received training on consumer were less likely to undertstand and
correctly apply the law as 'average' consumers.

This is borne out anecdotally from the discussions with students -
many of whom work in retail and share experiences from their
workplaces that seem to align with our findings.

update in the Men at Work case

http://www.theage.com.au/national/men-at-work-one-step-closer-to-losing-royalties-20090730-e28k.html

More on real estate regulation

Estate agent conduct also in Graeme Samuel's sights

http://www.abc.net.au/news/stories/2009/07/19/2629940.htm

The full text of the bill is here

Essentially one of the proposals is that s new section 76E be inserted, providing for pecuniary penalties, for breaches of 'a provision of Division 1 of Part V (other than s52)'.

This means that breaches of the various specific false/misleading representation provisions (including 'aiding/abetting/inducing etc') in s53 would potentially give rise to substantial penalties.

This change obviously goes well beyond misconduct by real estate agents.

Real Estate Underquoting

Last year I conducted some research on behalf of the Victorian Department of Justice, Consumer Affairs Victoria.

The report from this research has recently been released and is available here:

Residential Property Advertising in Victoria

Some media coverage of enforcement actions by Consumer Affairs Victoria arising from alleged underquoting here:

http://www.news.com.au/business/money/story/0,28323,25851463-5013951,00.html

Google's Real Estate Advertising

Posts have been thin on the ground for the last three weeks, while I
have been teaching and traveling in Italy.

This story is an interesting one, the whole 'content from aggregators'
issue comes up again, intertwined with the bi-polar position that
Google (and other companies) seems to be in from time to time -
partner/provider on one hand and competitor on the other.

http://www.theage.com.au/technology/biz-tech/google-sparks-real-estate-listings-brawl-20090727-dy2n.html

Another sales promotion tool in the legal spotlight

http://www.theage.com.au/technology/biz-tech/officeworks-axes-cashback-offers-20090727-dy7h.html

Game Piracy Raids

http://www.theage.com.au/national/police-seize-7000-pirated-computer-games-in-raids-20090624-cw51.html

Spammer faces prison in US

Can't find a detailed report at the moment, but the plea seems to
relate to fraud, money laundering, rather than breaches of the US spam
legislation

http://news.theage.com.au/breaking-news-world/accused-us-spam-scammer-pleads-guilty-20090623-cuhr.html

More iconic music facing copyright challenge..

Men at Work's 'Down Under', now

'A whiter shade of pale'

http://news.bbc.co.uk/2/hi/entertainment/8012303.stm

more discussion on web content moving toward being charged for

http://business.theage.com.au/business/internet-free-ride-soon-over-20090612-c67w.html

Facebook landgrab - stake your claim

http://blog.facebook.com/blog.php?post=90316352130

No UDRP here.

No name-speculation - 'Once it's been selected, you won't be able to
change or transfer it'

IP owners can lodge a complaint here http://www.facebook.com/copyright.php?noncopyright_notice=1

General policy overview here http://www.facebook.com/copyright.php?

Google and the end of free online news

There have been a number of actions arising from Google's (and
other's) aggregation or other use of news providers contents, notably
the actions bought by Agence France Presse against Google, resulting
in a settlement and a licensing agreement between the parties in 2007.

Does the 'atomisation' of news mean the beginning of the end for
online news as we know it?

http://www.theage.com.au/news/technology/biztech/atomic-answers-for-the-newspaper-of-the-future/2009/06/10/1244313187327.html

http://www.niemanlab.org/2009/06/charging-for-news-apis-recommendations/

Rupert Murdoch reportedly is quite enamored with the idea of not
giving away free news online anymore.

I read all my news online, and have noticed of late that the
advertising that supports this news delivery is becoming increasingly
invasive - don't know if this is down to a softening up of consumers,
in attempt to develop in us a wilingness to pay to have these
intrusions removed, or is just arising from attempts to develop
products that advertisers can be charged more for.

According to some research, users are becoming more accepting of over
content ads.

http://www.mediapost.com/publications/?fa=Articles.showArticle&art_aid=91554

What do Google and Tetris have in common?

Vadim Gerasimov

http://www.theage.com.au/news/digital-life/games/articles/tetris-inventor-teams-up-with-google-wave/2009/06/05/1243708614776.html

Textbook Piracy

Was just forwarded this link from a colleague - (thanks Rick):

http://www.timeshighereducation.co.uk/story.asp?storyCode=406080&sectioncode=26

Blog, Podcast, Vodcast and Wiki Copyright Guide for Australia

http://www.copyright.org.au/news/news_items/publications-news/2009-publications-news/blog-podcast-vodcast-and-wiki-copyright-guide-for-australia

The ARC Centre of Excellence for Creative Industries and Innovation
and Queensland University Faculty of Law have published 'Blog,
Podcast, Vodcast and Wiki Copyright Guide for Australia'. The guide is
available in printed form and online at:

http://cci.edu.au/content/blog-podcast-vodcast-and-wiki-copyright-guide-australia

Competition not substantially lessened by mobile merger

Some coverage here:

http://www.cch.com.au/au/News/ShowNews.aspx?ID=31371&Type=F&TopicIDNews=7&CategoryIDNews=0&u_i=113362

ACCC press release here:

http://www.accc.gov.au/content/index.phtml/itemId/874495/fromItemId/142

While this assessment of competition in a market was in a context of a
merger, the general approach adopted by the ACCC in looking at
competition in a market applies well in other competition law scenarios.

Two key factors in this case seem to have been;

that 'ongoing investments are needed to meet the increased customer
demand for bandwidth-hungry data services, including mobile broadband.
In this respect, the ACCC considers that mobile voice and data
services will continue to converge in the future'
'whether increased concentration in the mobile sector would result in
reduced pricing pressure for retail mobile telecommunications
services. It considered evidence which suggested that, individually,
without this merger, the parties would not sustain vigorous price
competition in the longer term'.

Google Wave

http://wave.google.com/

'a new tool for communication and collaboration on the web'

being slated as a project 'which seeks to overthrow email as the dominant mode of internet communication and replace it with a new hybrid'

http://www.theage.com.au/news/technology/web/look-out-outlook-googles-wave-is-coming/2009/05/29/1243456712775.html

not sure about everyone else, but for my money, the simplicity, ubiquity and accessibility of email will take some beating

sure, the world is becoming more 'always connected', but not needing to be connected and the asynchronous nature of email are two of the significant attributes of email

http://www.supermemo.com/articles/e-mail.htm

Keyword Trademark decision from Germany

http://austrotrabant.wordpress.com/2009/04/29/posterlounge-case/

Thanks to Maximilian Schubert for this one.

Alleged Google Killer

http://www.theage.com.au/news/technology/biztech/final-microsoft-bid-to-launch-google-killer/2009/05/27/1243456658546.html

time will tell

a guy who doesn't see anything good having come from the internet...

that would be Sony Pictures Entertainment chief executive officer Michael Lynton

http://www.huffingtonpost.com/michael-lynton/guardrails-for-the-intern_b_207459.html

World Intellectual Property Court...

desirable?
feasible?
politically acceptable?

http://jiplp.oxfordjournals.org/cgi/content/full/4/6/379

Twitter Squatting

http://www.abc.net.au/news/stories/2009/05/20/2575847.htm

There might be better names to twittersquat than the NSW Police?

Domain name loss for Apple iPhone and iPod designer Jonathon Ives

http://www.out-law.com/page-10004

sound trademark case

We don't see many of these - I'm not sure if we have ever had an
infringement action for a sound mark in Australia.

http://blogs.sfweekly.com/thesnitch/2009/05/duck_duck_suit_one_sf_duck_tou.php

More changes to Google AdWords Policy

In the US, from June 2009, Google will permit the use of another's trademark in the text of AdWords ads, in certain circumstances.

Google will 'use multiple criteria to determine whether an ad with a given term in its text adheres to [their] policy. [They] permit a trademarked term to be used in the ad text of ads that appear to be submitted by resellers; informational sites; the makers or resellers of components or parts for the goods and services related to the trademark term; or compatible components or parts for the goods and services related to the trademark term. The product or services from resellers must be on the ad's landing page and must be clearly available for purchase.'

https://adwords.google.com/support/bin/answer.py?answer=145407

another case about Google AdWords and registered trade marks - from the UK

In this instance, as has been the case in some other AdWords actions, the search provider (Google) has not been the defendant.

http://www.bailii.org/ew/cases/EWHC/Ch/2009/1095.html

Interflora v 'Marks & Sparks'

Once again, another good summary on IPKat.com

http://ipkitten.blogspot.com/2009/05/interflora-v-m-s-another-adword.html

eBay liability for TM infringing items in Europe

eBay successfully defends trademark action by L'Oreal over allegedly
counterfeit items sold on eBay

http://www.reuters.com/article/internetNews/idUSTRE54L2N320090522?feedType=RSS&feedName=internetNews&rpc=22&sp=true

The full decision is at http://www.bailii.org/ew/cases/EWHC/Ch/2009/1094.html

As IPKat.com points out, there are a number of European decisions on this issue, with three decisions in favour of eBay (UK, France and Belgium), one decision in favour of L'Oréal (Germany) and one decision (from Spain) still outstanding.

Google turnover to hit the big 1B?

http://www.theage.com.au/news/technology/biztech/google-on-target-to-crack-1b-in-revenue/2009/05/20/1242498841271.html

Some great research from Nicholas Weston

http://www.australiantrademarkslawblog.com/2009/05/articles/miscellaneous-intellectual-pro/annual-nicholas-weston-tattooed-brands-global-survey-2009-results/

sucks sites

Some key points to help in determining whether 'sucks' sites might
withstand legal challenges.

A local example of such a site can be seen at http://
www.connexsux.com/ (the target in case being Melbourne's suburban
railway operator, Connex)

Both the sources below present this information from the perspective
of a 'sucks' site creator, but the points are raised may also be of
value to organisations targeted by such sites.

From EFF and Eric Goldman.

http://www.eff.org/wp/gripe-or-parody-sites

http://blog.ericgoldman.org/archives/2009/05/effs_guide_to_g.htm

Microsoft Contextual Advertising network moves from beta

http://advertising.microsoft.com/search-advertising/content-advertising

Content Ads is Microsoft's keyword-targeted advertising service competing with Google's AdSense network and other providers.

Google's latest algorithm application

http://online.wsj.com/article/SB124269038041932531.html

Pre-emptive identification of employees likely to leave - is this sounding a bit like the movie Minority Report?

Further to my recent posts on the Buzzle/Apple litigation

I stumbled accross this material associated with the documentary that
ran on the ABC

http://www.abc.net.au/tv/goingpublic/

Twitter for jurors....

http://www.abc.net.au/news/stories/2009/03/18/2520009.htm

Finally - response to conduct by high cost SMS service providers

HTTP://acma.gov.au/WEB/STANDARD/pc=PC_311730

http://www.commsalliance.com.au/documents/codes/C637

The offensive conduct of these so called 'premium' providers - even
that label is totally off the mark - has been a particular bug bear of
mine for some time.

It is extremely unfortunate that the regulators, ACMA and for that
matter, the ACCC and/or state consumer protection bodies have taken so
long to react to this insidious conduct.

It will be interesting to see how well this code and statutory
provisions are monitored and enforced.

The providers behind this conduct should be fundamentally more
accessible and susceptible to regulatory measures and sanctions than
spammers, a bit of late night TV watching and reading of the right
print media by ACMA monitors will go a long way to dealing with the
problem.

These measures are a good start, but a few specific issues stood out
based on my quick review

- the advertising to under 15 year olds - difficult to define in
practice
- the 'Premium' SMS barring rule - the option for customers to bar
premium SMS messages by July 2010 - should be the default setting on
mobile phones/mobile networks - many mobile carriers have their
customers services barred from international calls - requiring an 'opt
in' to access these services - a similar approach would work well in
regard to the ability to receive these 'premium' text messages.
- the enhanced 'double opt-in' procedure should require full
disclosure of all costs and opt out details

Now we just need some action on the conduct of the mobile phone
companies

- use of the word 'caps' for products that are anything but, and;

- advertising 'included calls' as meaningless dollar amounts, rather
than actual minutes (as is the practice elsewhere - such as the USA).

Google amends trademarks as keywords policy in some markets

http://searchengineland.com/google-adwords-opens-up-trademarked-bidding-to-most-countries-18628

For a list of countries where Google will not investigate complaints
by trademark owners over the use of trademarks as keywords, see

https://adwords.google.com/support/bin/answer.py?answer=144298

So, in Australia Google seems to have retained the policy that
'advertisers might not be allowed to use certain trademarks as
keywords or as ad text per the request of the trademark owner'.

Google Trademark class action

http://blog.ericgoldman.org/archives/2009/05/google_hit_with.htm

Thanks for the info Eric.

the envelope being pushed

http://www.theage.com.au/news/technology/web/google-digging-deeper-to-improve-search-results/2009/05/13/1241894017304.html

Having settled the BookSearch matter and facing actions over it's
aggregation of online news, Google keeps challenging copyright in a
search context.

allegedly more 'professional' bloggers than lawyers in the US ;-(

http://online.wsj.com/article/SB124026415808636575.html?mod=dist_smartbrief

reminds me of The Simpsons episode where Lionel Hutz poses the
question 'imagine a world without lawyers' - followed by vision of a
world full of happy people all getting on

maybe the lawyer jokes will taper off and we'll have blogger jokes
instead?

What market are we in...

http://www.theage.com.au/news/technology/biztech/google-enduring-trial-by-fire/2009/05/11/1241893888218.html

Another perfect example for students of the critical role definition
of market plays in competition law.

Criminal provisions equivalent to s52 Trade Practices Act

http://www.theage.com.au/news/technology/biztech/accc-powerless-to-clip-dodos-wings/2009/05/08/1241727582476.html

Graeme Samuel thinks it's a good idea.

I think this is a valid point - there are grounds for criminal
sanctions for certain misleading and deceptive and misleading conduct
under s 75AZC - but no general ground akin to s52.

Although from the article above, it seems the alleged Dodo
misrepresentations relate to price and would, on the face of it,
likely be caught by s75AZC(1)(g), covering conduct that amounts to a
false or misleading representation about the price of goods or services.

Maximum 10,000 penalty unit ($1,100,000) for a breach of these
provisions.

What do Tacos and Apple computers have in common

http://news.zdnet.com/2100-9595_22-282396.html

reminiscent of the Taco Bell and Burger King trademark cases

More on the Buzzle hangover

http://www.macobserver.com/article/2005/09/12.14.shtml

some interesting comments posted

Ghosts of times past

http://www.theage.com.au/news/technology/biztech/the-puzzle-of-buzzle-was-apple-in-control/2009/05/06/1241289241873.html

I spent almost ten years as General Manager of one of the firms that
went into the Buzzle debacle.

Now a legal academic - with some teaching in corporations and research in insolvency law.

New worlds and old ones colliding ;-)

I had no idea Princess Mary of Denmark (as she now is) was involved in the episode.

Does that make me connected to royalty?

Here is the court details for today if anyone in Sydney is keen to have
a sticky beak

JUSTICE WHITE - COURT 12C, QUEENS SQUARE, 10:00am
006768/04
BUZZLE OPERATIONS PTY LTD (IN LIQ) & 1 ORS

v

APPLE COMPUTER AUSTRALIA PTY LTD & 9 ORS

Not sure how far they will get with the argument that Apple's Finance
Director, Jim Likidis, was a shadow director of Buzzle.

Interesting case to follow - I'll be trying to get some more details.

The Iced VoVo Dough Vo battle ends peacefully

http://business.theage.com.au/business/krispy-kreme-backs-down-on-vovo-booboo-20090430-ao18.html

Haven't seen any reports of any 'settlement' details - but for all the
coverage over this - both parties probably saw some spikes in sales.

Here's a pic I grabbed tonight at the KK shop at Chadstone - while
their product is still around.

Channel 9 news first with this story!

This story didn't seem to get a big run on the Yahoo 7 news site oddly enough ;-)

http://news.ninemsn.com.au/entertainment/808044/court-finds-seven-network-breached-laws

The ACCC website article on the decision is here.

High Court held 4:1 that as the broadcaster had entered an arrangement with the third party and endorsed or adopted the misleading representations of that third party in its publication, the publisher was liable for misrepresentations in the content and was not able to rely on the publisher’s defence (Trade Practices Act Section 65A) in relation to stories that were broadcast on the Today Tonight show.

The full High Court decision is here.

Australian Bill of Rights conference coming up in August

http://www.adelaide.edu.au/lawandreligion/conference_2009/

Any students looking for part time work

Netspace are currently hiring Customer Service Staff

http://www.netspace.net.au/careers/

applications can be sent to david.winbanks [at] staff.netspace.net.au

BRW's listing (alphabetically - not ranking) of Australian MBA Courses

http://member.afraccess.com/media?id=PDF://1224553657296&filename=200892111493080918list.pdf

Google: Best Australian Workplace

http://brw.com.au/viewer.aspx?ATL://1240885229164

How about the supply/demand curve for employment there - reportedly
20,000 applications for 100 jobs.

Fresh trade marks in meta tags case

http://blog.ericgoldman.org/archives/2009/04/promatek_redux.htm

Thanks Eric

Google facing new issues over BookSearch

After having just settled the BookSearch matters, Google is now facing
an anti-trust inquiry.

http://www.nytimes.com/2009/04/29/technology/internet/29google.html?_r=2&hp

some popular press on AdWords

http://www.theage.com.au/news/technology/biztech/beginners-guide-to-google-adwords/2009/04/27/1240684398708.html

no mention of use of others trade marks

Law Week in Victoria

http://www.liv.asn.au/events/lawweek/

Law Week is a national annual event that aims to promote greater
understanding within the community of the law, the legal system and
the legal profession. Coordinated by Victoria Law Foundation and supported by the LIV, Law Week reaches out to members of our community with FREE events from exploring the art and architecture of Melbourne's grand legal precinct, to learning about human rights or finding out about local laws affecting you and your neighbours.

In 2009 Law Week takes on the theme of 'Law at Work' focusing on the
many roles within the law. 'Law at Work' offers an opportunity to:

• Meet people who work in law
• Understand the many areas of law
• Explore the range of services available
• Focus on law in the workplace: equal opportunity, anti-
discrimination, dispute settlement, occupational health and safety

Environmental impact of spam

http://www.theage.com.au/news/technology/security/stop-the-spam-and-save-the-planet/2009/04/25/1240684317710.html

Full report can be downloaded here: http://resources.mcafee.com/content/NACarbonFootprintSpam

Krispy Kreme v Arnotts

http://www.abc.net.au/news/stories/2009/04/24/2551747.htm

Is it just me - or is most of the food related IP litigation around
products that are contributing negatively to the obesity epidemic:

eg

Krispy v Arnotts
Kettle Chip
Solo
Twisties
The purple saga

'Common sense' on Google Street View in UK

http://www.ico.gov.uk/upload/documents/pressreleases/2009/google_streetview_220409_v2.pdf

the Street View angst in the UK is in the context of what the
national media outlet describes as a 'surveillance society' with reportedly more than 4 million CCTV cameras (no doubt many more
in 2009 - this is a 2006 figure)

Less Sweat, More Tears? High Court decision in IceTV v Nine

http://www.austlii.edu.au/au/cases/cth/high_ct/2009/14.html

Still making my way through the detail, but essentially this decision,
in favour of IceTV, has significantly changed the Australian position
on what compilation material will be protected by copyright.

The IceTV decisions makes Australian law more consistent with the US
and Europe positions.

Some links to comments at http://www.freedomtodiffer.com/

Online comments - public or private - interesting article on The Age today

http://www.theage.com.au/articles/2009/04/17/1239475038317.html

Fwd: Marketing Law

A useful practical illustration of Copyright being a 'bundle of rights'

http://www.digisteps.com/youtube/youtube-user-options-audio-mute-policy/390

Why such low uptake of new technology by academics...

I've often heard from credible sources, including senior staff at
Monash and elsewhere, that Academia is an aging profession, my
anecdotal experience supports this view.

I'm one of the youngest in my department, one of the most technology
literate - given the experiences I've had trying to get a simple
podcast on the iTunes store over the last week or two, the answer to
the question contained in the topic is clear.

I've resolved this year to integrate technology more into my teaching
and research networking.

Improving the regularity and relevance of posts here is part of this
Web 2.0 mindset.

As part of this resolve, I decided to get a podcast series
established. Peter Wagstaff, a colleague in the Department of Marketing at Monash, has had a
great podcast going for some time, and generally been a bit of a shining beacon for 'new'
technology use at Monash. It was this example in part, that had been
nudging me along for some time.

Well I've finally got the PodLaw.net podcast series live on iTunes -
but what a trauma it was.

I gullibly thought using Apple's GarageBand software to create the
podcast, Apple's iWeb software to get it on the web and Apple's iTunes
Store to get it visible to podcast seekers on the web, would make the
process fairly straightforward.

These three steps went from amazingly easy and fun in step one to
sheer, time wasting frustration in step 3. As a long time Mac guy, I
have to presumable the process was not worse than using a disparate
collection of software and online tools to undertake the exercise.

Anyway, I googled for hours to try and find the solutions to the two
major hurdles, so will set out the solutions below in the hope they
might save others my from enduring my grief.

Major issue 1

Tossed up whether to use Dreamweaver, which I have some years
experience with at a basic level, or Apple iWeb - basic and somewhat
restricted, and not an application I've used much. I actually tried
both and decided that it was the effort getting my head around iWeb,
despite some shortcomings. I figured with the RSS, iTunes integration
etc this would save time over the long term.

It certainly did not in the short term!

I didn't want to use Apple's MobileMe hosting/cloud service (formerly
known as .Mac) - but rather use my own hosting account, that I use for
my other sites http://www.lawfacts.net and http://www.buslawforum.com.

One of the annoyances of the iWeb (a commonly held one based on my
efforts to find a solution) is that it creates a subdirectory when it
creates a site, so my site become www.podlaw.net/podlaw/ - with
directories below this also added. This meant that uploading files (I
used Dreamweaver but other FTP programmes would be the same) was a
hassle and the links for the RSS needed to iTunes were wrong. This
issue was also manifest in redirects set on my server not working. I
tried quite a few workarounds for this, eventually to solve the iWeb
additional directory dilemma.

Here's what worked for me

-created a new directory on my server podlaw.net/PodLaw

set the site name in iWeb to this same name ie PodLaw - top left red

and white could icon, or site name in site tab in the inspector in
iWeb 08
-saved site from iWeb into a folder on my Mac with the same name ie
PodLaw
-set Dreamweaver to upload the entire site to this PodLaw directory
-once uploaded with Dreamweaver (or other FTP client), copied the
index.html file from the podlaw.net/PodLaw directory on the server to
the root (public_html) directory on the server (I used my web based
cpanel to do this). This file was created by iWeb. I left a copy of
this file in the podlaw.net/PodLaw directory - not sure if it needed
there - but it was all working so I left it there.
-opened this index.html file in the root (public_html) directory and
changed the redirect URL from PodCast/PodCast.html to www.podlaw.net/PodLaw/PodCast/PodCast.html

So my non MobileMe hosted, iWeb created podcast was visible at http://www.podlaw.net
, the RSS link in the browser address bar was working, the subscribe
button was opening the podcast in iTunes, with correct artwork and
episodes - all issues overcome.

Major issue 2

Submitting to iTunes store

Finding the link to do this once on the iTunes Store was hard
-clicked Podcasts, towards the top on left side of iTunes window
-clicked Podcast Directory toward the bottom right of the iTunes window
-scrolled to bottom, bottom left box headed 'Learn More', clicked link
to submit podcast
- pasted the URL that I get when I click RSS button at podlaw.net (in
my case this was feed://www.podlaw.net/PodLaw/PodCast/rss.xml)
-CRITICAL - the iWeb templates have a title placeholder text box on
their podcast pages - this text box MUST contain the name of your
podcast (or at least not be empty), otherwise the error "We require
that feeds include a title" will appear - I made this text white on my
page - so it is not visible.

Hope this will prove useful to anyone wanting to 'try this at home'.

Microsoft patent case doesn't go their way

http://www.theage.com.au/news/technology/biztech/microsoft-ordered-to-pay-550m-in-patent-case/2009/04/09/1239222965335.html

New law journal ranking list - what where they thinking...

Despite now having a A ranked publication under my belt, I must air my
astonishment at the 'Australian' Research Council law journal ranking
list finally released last week, adding my feeble voice to the likes
of Justice Young of the NSW Court Appeal, who spoke candidly about it
in the last issue of the ALJ.

I note that the list is no longer available on the website as of
today, in it's place is what must surely be biggest understatement
since federation

'The ARC is aware of issues with the HCA lists'

Another attempt at specific keyword/trademark legislation

Eric Goldman, one of the planet's best (in terms of quality and
quantity) bloggers on search law, has recently posted on the US state
of Utah's latest attempt to legislate on the use others trademarks as
keywords.

http://blog.ericgoldman.org/archives/2009/03/utah_trying_to.htm

As Eric points out, seem the proposal largely mirrors the existing
policy that Google and other search providers already have in place.

CSIRO v HP WLAN patent settlement

http://www.theage.com.au/news/technology/biztech/csiro-cashes-in-on-patent-claim/2009/04/01/1238261630683.html

There's research and there's research

Discussion have been had frequently by academics and researchers who
might wonder about the relative importance and/or utility of their work.

Here's what I consider some really interesting research results from
Deakin University

http://www.theage.com.au/national/sonar-science-uncovers-grim-wartime-secret-20090331-9ib0.html

Is this more or less interesting than my work on say, Voluntary
Administrators reports.....

Better get in before it is year between blogs :-(

Life has been hectic on a number of fronts - a lot has transpired
since August including some extended leave, that was occupied with an
amazing trip to Hawaii, Canada, Seattle, Las Vegas, Utah, New Orleans
and San Diego late last year.

A good experience today with my iPhone (and I've got to say there are
plenty of less than good experience with this particular gadget - er I
mean tool').

Anyway I had just downloaded the free Griffin iTalk app a few days ago
- quite fortuitously as it happens. The radio mic was missing from
the lecture theatre today as I set out to give a Trademarks lecture in
my Marketing Law undergrad unit - so thought - I'll try the iPhone/
iTalk solution - it all worked well I'm pleased to report - I've
transferred it to my Mac and downsized for loading onto the university
server. Four and a half stars - syncing through iTunes without the
need for additional syncing software would get it the other half a star.