I've just given a 15 minute version of my rule of law argument at the State of Play VI conference in New York. The basic point was that we are still stuck in a false dichotomy between regulation and liberty for virtual communities. I argue that we need to take a closer look at the way in which governance takes place and the tensions that exist in virtual communities. I propose an evaluatory framework based upon the various ideals of the rule of law. It is the legitimacy that is most threatened by private governance, and it should be legitimacy that we seek to encourage and safeguard in the legal regimes that constrain governance.

You can grab the slides here in PDF or PPT.

[ insert obligatory Clash of the Titans headline, although this is more a David v Goliath story… ]

vs
Are these logos deceptively similar?

I was asked for a comment yesterday about a story that the Rugby Leage team the Gold Coast Titans have opposed the registration of a trademark by the Canterbury Titans, an under-14s Rugby Union team.

A quick search of the ATMOSS register shows that there are quite a few organisations using a name in the form ”<description> Titans”. I suggested that the word 'Titans' in this context is fairly generic, and that I couldn't see a high likelihood of confusion.

What makes this strange is that the Gold Coast team don't appear to mind people using their likeness:

We encourage lots of junior clubs to use the Titans name and colours . . . but we can't allow a business to register a trademark that is so similar to ours.

I see some generic similarity, in that both logos use the word 'titans' and both have a stylised helmet in the name. Beyond that, I'm not sure that Gold Coast have such a strong claim. What do you think?

Compare the image of the US Stone Oak Titans, which certainly seems very similar to the Gold Coast titans:

I'm not convinced that a Rugby fan is going to be confused by two teams, from two different codes, with two widely differing financial and skill bases, sharing the same fairly generic team name. If that's true, should the Gold Coast Titans have a legally enforceable right to prevent the U14 team from using the name 'Titans'?

[ Reposted from EFA site ]

Cory Doctorow is reporting that Australia is part of a group of countries that are opposing a treaty that would ensure that people with a print disability have greater access to published copyright material.

The draft treaty (MS Doc; Google cache here) includes several important clauses, including:

• an exception to copyright infringement for non-profit supply of accessible versions of works to which a person with a print disability already has access in a non-accessible form;

• a statutory licence for reasonable for-profit supply;

• an exception to anti-circumvention law to allow blind persons to break technological locks that make the work inaccessible; and

• most importantly, an exception that allows importing and exporting of accessible versions of copyright works, enabling them to be distributed to blind people in other countries.

Please help us ensure that people with a print disability have access to published copyright material in an accessible form by raising awareness and contacting the Attorney-General’s Department.

This is an important proposal before WIPO, and has the support of the World Blind Union as well as many other NGOs. Whilst some of the goals of the treaty may be implemented at a national level, WIPO support means that signatories will be prompted to amend their laws much quicker. WIPO support is also likely to be required in order to introduce the import/export exception, which is likely to significantly reduce the very significant overheads that countries face in digitising books and creating accessible versions of works.

Australia forms part of Group B, which opposes the treaty, and includes the US, Canada, New Zealand, the Vatican and Norway in opposing the treaty. We have not seen an official statement by the Attorney-General’s Department on whether Australia supports the treaty or not. We can hope that Australia is able to lead the way in expressing support and lobbying other countries in Group B to support the proposed treaty. The AGD has reportedly said that it will hold public consultations on the treaty - now is the time to write and ensure that our representatives know that Australians want improved access for blind people and those with other reading disabilities.

Cory Doctorow has asked us to

reblog, tweet, and spread the word, especially to government officials and activists who work on disabled rights. We know that WIPO negotiations can be overwhelmed by citizen activists — that’s how we killed the Broadcast Treaty negotiation a few years back — and with your help, we can make history, and create a world where copyright law protects the public interest.

Accordingly, please take the time to write to the Attorney-General’s Department and express your support for greater access to published material for people with a print disability. We at EFA strongly believe that it is simply not acceptable that blind people are denied access to published material to any greater extent than sighted people. The treaty that is being proposed greatly simplifies the responsibilities of countries worldwide to remove barriers to access for blind people and proposes to introduce a new exception making it easier for accessible copies of books to be distributed to where they are needed.

I, along with my colleagues Paul Harpur and Dilan Thampapillai, have previously written about the difficulty that blind users have accessing copyright material in Australia. Paul Harpur has been diligently following up this work with further research on how Australian universities can help blind students by providing clear text copies of printed material. In the paper we published, we noted the complicated and limited nature of Australia’s statutory licence and limited exceptions in favour of people with print disabilities. We argued for the establishment either of a government funded digital repository or for the creation of an exception in Australian copyright law to allow markets to provide accessible formats of works where publishers refused to do so. EFA reiterated these sentiments in our submission to the Digital Economy Future Directions paper.

More on Twitter: #sccr18.

Thanks to Gwen Hinze and the folks at the EFF for continuing to apply pressure for reading accessibility. See further: Reading Rights Coalition and Knowledge Economy International.

[ Reposted from the EFA site. ]

ContestedFooty.com, an AFL commentary blog run by some university students in Melbourne, has received a Cease & Desist letter from the AFL. The AFL allege that the blog infringes their intellectual property rights - both the trademarks and the copyright in the AFL and team logos and names.

This appears to be another example of Australia's trademark laws being used to stifle legitimate commentary and critique. There certainly does not appear to be any source of confusion as to whether the bloggers are officially sanctioned by the AFL or the teams in question. The bloggers are not trading off the AFL's reputation, or representing some false connection with the league. Certainly the trademarks do not appear to be used as trademarks; the marks are plastered on the guernseys of the players - it's hard to show a picture of an AFL player without also showing the marks.

As for the copyright claims, these seem even weaker. We do have fair dealing for criticism and review and for the reporting of news, defences which the bloggers would seem to fit within without trouble. The bloggers say that their photos are original and that they're not reusing unlicensed photos.

If the AFL's demands are respected, this imposes a substantial chilling effect on speech. At its limits, it means that all commentary on AFL must either (a) not refer to specific teams or show pictures of players; or (b) negotiate (and pay for) a licence from the AFL - presumably also opening the possibility that the AFL will dictate the terms or even content of the commentary.

Luckily, sport plays a much bigger role in the Australian psyche than that. It is likely that the claims being made by the AFL are somewhat inflated at best. We hope that the operators of ContestedFooty.com are able to respond to the AFL and continue providing valuable critical commentary.

This cautionary tale, however, shows the importance of reasonable intellectual property laws. Nobody wants a situation where fans are unable to talk about their favourite sports, but our current laws encourage trademark owners to make these sorts of claims. Unfortunately, when made against bloggers and students, contesting these claims often becomes prohibitively expensive. I believe that both copyright and trademark law need to be simplified to provide clear space for this type of commentary, allowing bloggers and others to stand up for their rights.

[ Reposted from the EFA site. ]

Today EFA's hosting provider received a Final Link Deletion Notice from ACMA, requiring us to remove a link to a page that contains images of aborted foetuses from our website. We have complied with this notice because it exposes our host to fines of up to $11,000 per day that we do not remove the link.

The ACMA advises that the page we linked to has been classified by the Classification Board as being R18+ content. A summary of the classification decision is available at the OFLC site, classification Number 56671019. The description of the content we received was that it contained “gratuitous, exploitative and offensive depictions of violence, which have a very high degree of impact.”

In our original post, we explained that we were concerned that the ACMA blacklist included not just child sexual abuse material, but also political speech. We believe that the page we linked to, hosted at AbortionTV.com, was political speech. It is a set of images of aborted foetuses, designed to shock, aimed at furthering the organisation's messages that women should not terminate pregnancies and that abortion should be criminalised.

Our linking to the AbortionTV page, however, was not to support this message. We used the page as an example of over-blocking of political speech by the current and proposed censorship regimes. We are extremely concerned that Australian websites are currently being required to remove links to what we believe is legitimate political speech, even where that speech is offensive. We are also extremely concerned that, if the Government's plan for mandatory ISP filtering goes ahead, such websites will be blocked without any transparency or avenue for review.

We believe that linking to the blocked page was essential to communicate our message. We believe that Australia's current and proposed censorship regimes result in the illegitimate blocking of political speech. To illustrate this point, we need to link to what we believe to be an example of a page that has been illegitimately blocked.

Linking to the actual blocked page is important. We could have described the content of the page, but we believe that this would not have been sufficient to let Australians make up their own mind about whether the current or proposed censorship regimes are appropriate. We responded directly to comments by the Minister and others in the current debate that material on the ACMA blacklist is 'illegal' material, and that the proposed filter will not block any political speech. The images on the linked page, being R18+ rated political speech, clearly demonstrate that both of these claims are false. While they may be offensive, they are political in nature and they are certainly not illegal to possess. No amount of textual description would have been as effective at demonstrating this point.

We believe we may have a colourable claim under the implied freedom of political communication. Clause 121(1) of Schedule 7 of the Broadcasting Services Act 1992 (Cth) (BSA) explicitly provides that the takedown scheme “does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.”

The High Court considered the scope of the implied guarantee of political speech in a series of cases in the 1990s. The test developed in Lange v ABC means that laws that laws that “effectively burden freedom of communication about governmental or political matters, either in its terms, operation or effect” must be “reasonably appropriate and adapted to serve a legitimate end”, the fulfillment of which is compatible with the constitution.

It is apparent that Schedule 7 of the BSA “effectively burden[s] freedom of communication about governmental or political matters”, as demonstrated by this takedown notice. We might be able to assume that Schedule 7 of the BSA generally serves a legitimate purpose. However, whether it is 'reasonably appropriate and adapted' to that purpose is not clear. In Levy v Victoria, a restriction on protests against duck hunting was appropriate because it was adapted to avoid physical harm to members of the public in hunting areas. This is not such a case. Any potential harm of somebody finding the publicly available R18+ rated images through a link on our website would seem to be far outweighed by the detrimental effect that the takedown notice has on our ability to engage in informed debate about the legitimate scope of our current and proposed censorship regimes.

All this is complicated by the fact that EFA cannot directly appeal this decision. Because EFA does not host its own websites, our provider is the “links service provider” within the meaning of Schedule 7. Under cl 113(5), an application can be made for a review to the Administrative Appeals Tribunal, but it “may only be made by the links service provider concerned” (cl 113(6)).

We are currently investigating potential means of appealing this decision. As Colin already mentioned, this is certainly a worrying example of the dangers of Australia's current and proposed censorship regimes.