Melbourne Law School - Research Publications
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ItemA Bit Liable: A Guide to Navigating the US Secondary Liability Patchwork(Santa Clara University School of Law, 2008)In terms of scholarly and media attention, copyright's secondary liability doctrines long played a bit-part alongside direct liability's leading lady. But since peer-to-peer (P2P) file sharing providers began facilitating billions of copyright infringements a decade ago, those unassuming doctrines have been forced into starring roles. This article shines a spotlight on U.S. secondary liability law ten years after it first took center stage, highlighting the myriad uncertainties and controversies that now plague its operation. These uncertainties are illustrated with detailed reference to the hypothetical secondary liability of BitTorrent Inc., the original and as-yet unlitigated provider of the world's most dominant P2P file-sharing tool. This work argues that the rhetoric underpinning the existing secondary liability law is strongly protective of technology, but that the breadth and depth of the uncertainties surrounding its proper application effectively abrogates those protections by stealth.
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ItemKazaa Goes the Way of Grokster? Authorisation of Copyright Infringement Via Peer-To-Peer Networks in Australia(Thomson Reuters, 2006)In Universal Music Australia v Sharman License Holdings (2005) 65 IPR 289 an Australian Federal Court suggested for the first time that it is acceptable to prohibit the continued distribution of a product on the grounds that after its sale it is capable of being used by its purchaser to infringe copyright, even though it may also have non-infringing uses. The decision, currently on appeal to the Full Court, raises important questions about the scope and meaning of the concept of “authorisation” under Australian law. The most important question is whether or not some degree or control is necessary to support a finding of authorisation. This article comprehensively explains the decision and argues that the Full Court could usefully draw upon some aspects of the United States approach to answer the questions raised.
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ItemOn Sony, StreamCast and Smoking Guns(Sweet and Maxwell, 2007)In 2005 the US Supreme Court remanded the landmark Grokster P2P file - sharing case to the California District Court for adjudication. This article looks closely at that remand decision, and the reasoning behind the district court's decision to hold the defendant liable for inducement. It also considers whether the 1984 Supreme Court judgment in Sony Corp of America v. Universal City Studios Inc. would be decided differently if it were it to be decided under today's law. In so doing, it highlights some of the most significant differences between the Grokster Court's two concurrences.
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ItemAvoiding conflict: What do adolescents with disordered eating say about their mothers in music therapy?(SAGE Publications, 2008-06-01)Music therapy is an integral part of the inpatient treatment programme for young women with disordered eating at the Royal Children's Hospital in Melbourne. As part of ongoing clinical audit activities, an investigation was undertaken to analyse retrospectively the lyrics of young women who had participated in the music therapy programme. The¬¬¬¬¬¬ purpose was to monitor and improve local clinical practice and clarify the specific contribution of music therapy to the diagnosis of anorexia nervosa. Results highlighted the role of mothers in the experiences of the young participants, with references to this relationship exceeding those to any other relationships. These findings are discussed in conjunction with an abandoned study where parental consent was not forthcoming for participation in a group music therapy research project. This article promotes a continuing awareness of the importance of the mother-daughter relationship in the treatment of eating disorders.
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ItemNo Preview AvailableTHE BRUMMAGEM COUP THE START OF SELF-GOVERNMENT IN VICTORIA(ROYAL HISTORICAL SOC VICTORIA, 2006-11)
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ItemProtection of Employees in a Transmission of Business: What is Left in the Wake of Work Choices and Subsequent Statutory Amendments(Centre for Employment and Labour Relations Law, 2007)Regulation of the employment relationship in the context of a transmission of business has undergone substantial revision as a result of the Workplace Relations Amendment (WorkChoices) Act 2005 (Cth), and more recently, the Workplace Relations Amendment (A Stronger Safety Net) Act 2007 (Cth). The first part of this paper reviews the statutory treatment of transmission of business in the past and considers the traditional justification for regulatory intervention in this area. The focus then turns to a detailed examination of the new statutory provisions and analyses the possible impetus for the changes, as well as identifying potential shortcomings. Finally, it looks at recent amendments relating to the application of duress in connection with Australian Workplace Agreements. It is argued that, despite the growing body of case law in this area, statutory intervention was necessary in order to ensure that, in a transmission of business, the obligations of employers were clearly prescribed and the market position of employees was properly protected.
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ItemBeyond Reasonableness--A Rigorous Standard of Review for Article 15 Infringement(Indian Law Institute, 2008)
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ItemContracts between patients and healthcare practitioners for improving patients' adherence to treatment, prevention and health promotion activities(WILEY, 2007)BACKGROUND: Contracts are a verbal or written agreement that a patient makes with themselves, with healthcare practitioners, or with carers, where participants commit to a set of behaviours related to the care of a patient. Contracts aim to improve the patients' adherence to treatment or health promotion programmes. OBJECTIVES: To assess the effects of contracts between patients and healthcare practitioners on patients' adherence to treatment, prevention and health promotion activities, the stated health or behaviour aims in the contract, patient satisfaction or other relevant outcomes, including health practitioner behaviour and views, health status, reported harms, costs, or denial of treatment as a result of the contract. SEARCH STRATEGY: We searched: the Cochrane Consumers and Communication Review Group's Specialised Register (in May 2004); the Cochrane Central Register of Controlled Trials (CENTRAL), (The Cochrane Library 2004, issue 1); MEDLINE 1966 to May 2004); EMBASE (1980 to May 2004); PsycINFO (1966 to May 2004); CINAHL (1982 to May 2004); Dissertation Abstracts. A: Humanities and Social Sciences (1966 to May 2004); Sociological Abstracts (1963 to May 2004); UK National Research Register (2000 to May 2004); and C2-SPECTR, Campbell Collaboration (1950 to May 2004). SELECTION CRITERIA: We included randomised controlled trials comparing the effects of contracts between healthcare practitioners and patients or their carers on patient adherence, applied to diagnostic procedures, therapeutic regimens or any health promotion or illness prevention initiative for patients. Contracts had to specify at least one activity to be observed and a commitment of adherence to it. We included trials comparing contracts with routine care or any other intervention. DATA COLLECTION AND ANALYSIS: Selection and quality assessment of trials were conducted independently by two review authors; single data extraction was checked by a statistician. We present the data as a narrative summary, given the wide range of interventions, participants, settings and outcomes, grouped by the health problem being addressed. MAIN RESULTS: We included thirty trials, all conducted in high income countries, involving 4691 participants. Median sample size per group was 21. We examined the quality of each trial against eight standard criteria, and all trials were inadequate in relation to three or more of these standards. Trials evaluated contracts in addiction (10 trials), hypertension (4 trials), weight control (3 trials) and a variety of other areas (13 trials). Sixteen trials reported at least one outcome that showed statistically significant differences favouring the contracts group, five trials reported at least one outcome that showed differences favouring the control group and 26 trials reported at least one outcome without differences between groups. Effects on adherence were not detected when measured over longer periods. AUTHORS' CONCLUSIONS: There is limited evidence that contracts can potentially contribute to improving adherence, but there is insufficient evidence from large, good quality studies to routinely recommend contracts for improving adherence to treatment or preventive health regimens.