Melbourne Law School - Research Publications

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    The 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
    Grundy, J ; Bowen, K ; Annear, P ; Biggs, B-A (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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    Social Media and Court Communication
    BLACKHAM, A ; WIlliams, G (Sweet and Maxwell, 2015)
    Courts have traditionally relied on the delivery of judicial decisions as their sole means of direct communication with the general public. Over time this reliance is shifting, including through the willingness of courts to have their proceedings televised. Courts have also sought to have greater influence on how others communicate about and report their decisions, such as by employing public information officers to prepare press releases on court activities and liaise with the media. Most recently, judges and courts have taken their engagement with the public one step further by experimenting with the use of social media. Social media such as Twitter or Facebook provide a new means by which courts can enhance their openness and accessibility. However, such technologies also come with a fresh set of challenges. In particular, unlike television or media reporting, social media is designed to foster dialogue and ongoing interaction between participants. This needs to be carefully considered, as the use of social media has the potential to affect not only the processes by which courts communicate, but also the nature and substance of court proceedings. While this latter effect could be positive, injudicious use of social media could compromise a court’s ability to operate with independence and integrity. Drawing on a case study of social media use by courts in three common law jurisdictions (the United Kingdom, Australia and the United States of America), this paper considers the extent to which direct communication processes via social media may further the underlying objectives of court communication and enhance the courts’ constitutional role. It considers the opportunities and challenges posed by such media for courts, and how the inherent limits and constraints of social media may affect the nature of court communication. We assess the extent to which courts should make greater use of social media to enhance their existing communication processes and consider whether additional safeguards should be adopted to ensure the use of social media does not detrimentally impact upon the judicial system.
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    The P2P wars: How code beat law
    Giblin, R (Institute of Electrical and Electronics Engineers (IEEE), 2012-05-01)
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    A Bit Liable: A Guide to Navigating the US Secondary Liability Patchwork
    Giblin, R (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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    On the (new) New Zealand graduated response law (and why it's unlikely to achieve its aims)
    Giblin, R (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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    We (Still) Need to Talk About Aereo: New Controversies and Unresolved Questions After the Supreme Court's Decision
    Giblin, R ; Ginsburg, J (Columbia University Libraries and Columbia Law School, 2015)
    Recent judicial interpretations of U.S. copyright law have prompted businesses to design technologies in ways that enable the making and transmission of copies of works to consumers while falling outside the scope of the owner’s exclusive rights. The archetypal example was Aereo, Inc.’s system for providing online access to broadcast television. Aereo allowed users to tune into individual antennae to stream near-live TV to themselves, online. If this activity fell within the scope of the exclusive right of public performance, then it required the permission of right holders. The “Transmit Clause” of the U.S. Copyright Act’s definition of “to perform publicly” brings within the scope of the public performance right: [T]ransmitting or otherwise communicating a performance or display of the work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. Holdings from the Second Circuit that the relevant performance was the specific transmission from each copy, and that those performances could not be public if made to only a single user, gave Aereo a blueprint for avoiding liability. It took up the invitation by designing a system incorporating thousands of dime-sized antennas. By temporarily assigning one to each user, from which she could access only the signals she could freely pick up from her own rooftop, Aereo’s service enabled individual copies to be made of each program and then transmitted on request to the user. Since each transmission was directed only to the single requesting user, Aereo argued it could not be considered made “to the public.”
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    Kazaa Goes the Way of Grokster? Authorisation of Copyright Infringement Via Peer-To-Peer Networks in Australia
    Giblin, R ; Davison, M (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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    On Sony, StreamCast and Smoking Guns
    Giblin, R (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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    Physical World Assumptions and Software World Realities (and Why There are More P2P Software Providers Than Ever Before)
    Giblin, R (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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    The Uncertainties, Baby: Hidden Perils of Australia's Authorisation Law
    Giblin, R (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.