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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ItemRewinding Sony: An Inducement Theory of Secondary Liability(Sweet and Maxwell, 2005)Discusses the US Supreme Court ruling in Metro - Goldwyn - Mayer Studios Inc v. Grokster Ltd, which preserved the technology protecting rule established by its earlier decision in Sony Corp of America v. Universal City Studios Inc but failed to clarify its application to peer to peer (P2P) technologies. Reviews the operation of the Sony rule on vicarious and contributory liability in copyright cases, its application in subsequent case law, the Grokster judgment's likely impact on the Sony principles and the remaining areas of uncertainty regarding the revised test to be met by P2P companies seeking to escape secondary liability for inducement of copyright infringement. Reflects on the likely effects of the Grokster ruling for future technologies.
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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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ItemNo Preview AvailableContempt of Parliament in Victoria(Adelaide Law Review Association, 2005)The wide powers of State Parliaments to punish members and outsiders vary from State to State. Authorities on contempt of Parliament have compared the different jurisdictions, but there has been no specific study of contempt of the Victorian Parliament. Its powers are different from those of the Commonwealth, New South Wales and Tasmanian parliaments, and it has a distinctive record of little-known contempt cases. This article provides an overview of the Victorian Parliament’s powers and the way they have been used.
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ItemThe doctrine of 'strict compliance' in the Italian legal system(The University of Arizona, 2005)In recent years, courts all over the world have been called upon more and more often to resolve disputes involving transactions made through letters of credit. This paper analyzes the doctrine of strict compliance in letters of credit in the Italian legal system in light of some decisions issued by Italian courts over the past fifty years. It is not the intent of this paper to explain in detail the "technical" function of letters of credit, since the mechanism underlying this trade tool is already known: the buyer of merchandise asks a bank (issuing bank) to issue a letter of credit payable to the seller of the merchandise (beneficiary) upon presentation of certain documents tendered by the seller to the issuing bank. In international transactions, a separate bank often confirms the obligation at the beneficiary's place of business (confirming bank). When the required documents, complying on their face with the conditions of the credit, are tendered, the bank honors its undertaking. Due to its characteristics, the letter of credit is used for the most part among merchants residing in different countries.
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ItemNo Preview AvailablePrinciples of Contract Law(Lawbook Co, 2005)
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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.