Melbourne Law School - Research Publications
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ItemThe Responsibility to Protect: Inequities in International Aid Flows to Myanmar and the Democratic People's Republic of Korea and their Impact on Maternal and Child Health(Taylor and Francis Group, 2012)The Union of Myanmar and the Democratic People's Republic of Korea (DPRK) are the most disadvantaged aid recipients in Asia. In this paper we describe and analyse the inequities in international aid flows to these countries from a health equity and “responsibility to protect” perspective. Review of public health and health systems literature and examination of international aid flows reveals that countries with a comparable gross national income receive total aid flows 11 to 12 times larger than do Myanmar (Burma) and DPR Korea (North Korea). Although the issue of aid effectiveness in these governance contexts remains a significant challenge, there is nonetheless a joint national and international responsibility to protect women and children through the careful targeting of health humanitarian aid and development programs.
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ItemThe P2P wars: How code beat law(Institute of Electrical and Electronics Engineers (IEEE), 2012-05-01)
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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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ItemOn the (new) New Zealand graduated response law (and why it's unlikely to achieve its aims)(Swinburne University of Technology, 2012-01-01)In 2011 New Zealand controversially introduced a 'three strikes' graduated response law. Under this law, the holders of Internet service accounts which are detected as having infringed copyright via P2P file sharing technologies three times within a specified time period can be ordered by the Copyright Tribunal to pay content owners up to NZ$15,000. The law also provides for Internet access to be suspended, though these provisions are currently inactive pending determination of the efficacy of the financial penalty regime. This paper explores the contours of the NZ graduated response regime - and then outlines a number of technical and practical reasons why it's unlikely to achieve its aims.
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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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ItemPhysical World Assumptions and Software World Realities (and Why There are More P2P Software Providers Than Ever Before)(Columbia University Libraries and Columbia Law School, 2012)Rights holders have been successful in every major copyright action brought against peer-to-peer (P2P) software providers. By 2005, those behind Napster, Aimster, Grokster, Morpheus and Kazaa have each been held liable for their users’ infringements and effectively exited the market. But those successes did not result in any reduction in the availability of P2P file sharing software. In fact, the opposite occurred: soon after the U.S. Supreme Court ruled in favor of rights holders in Grokster, there was exponential growth in the number of P2P file sharing applications available. This Article argues that this came about because the pre-P2P and current U.S. secondary liability laws were and are based on a number of physical world assumptions that are simply not tenable in the software context. After identifying those assumptions, and contrasting them with the relevant software world realities, the Article demonstrates that the explosion in the number and availability of P2P apps can be traced directly to the Supreme Court’s failure to recognize the mismatch between the two paradigms.
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ItemThe Uncertainties, Baby: Hidden Perils of Australia's Authorisation Law(Thomson Reuters, 2009)As digital copying and online distribution become increasingly prevalent, the issue of when a technology provider can be held liable for its users’ infringements grows commensurately more important. In Australia, such liability is imposed through the tort of authorisation, which provides that a defendant will be liable if it “sanctioned, approved or countenanced” a third party infringement. Despite its significance however, some of the principal elements of the doctrine remain unclear. After tracing the origins and development of authorisation in Australia, the work explores the main uncertainties that plague the law today. With reference to the BitTorrent file sharing software, the work then explicitly highlights the ways in which those uncertainties may affect the provider of a useful technology that has both non-infringing and infringing uses. The underlying theme of the work is that, by failing to unequivocally dismiss the increasingly expansionist arguments that are being raised in this context, courts are inadvertently promulgating a de facto expansion of the Australian authorisation law. It concludes by arguing that, unless courts start concertedly addressing the law’s uncertainties and ambiguities, the law will continue to have a more dampening effect on technological innovation in Australia than courts or the legislature ever intended.
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ItemOptus v NRL: A Seismic Shift for Time Shifting in Australia(Sweet and Maxwell, 2012)In Optus v NRL, Australia’s Federal Court recently held that consumers had broad rights to “time shift” television programs, including via the use of remote recording and storage devices. The applicants were the AFL and the NRL, sporting organisations which had big plans for the monetisation of internet streaming rights, and Telstra, which had already paid some $153m for rights to several seasons of AFL games. This paper provides a detailed overview of the decision and the relevant law, and considers its likely significance for stakeholders including broadcasters, sports operators and other content owners, streaming providers and consumers.
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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.