Melbourne Law School - Research Publications
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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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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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ItemLeft Out in the Cold: Homelessness and Anti-Discrimination Law(Council of Homeless Persons, 2005)Anti-discrimination legislation has long been accepted as an integral part of Australian law and culture. However, the current legal framework at both Commonwealth and State levels fails to adequately protect people who are homeless, unemployed or in receipt of social security benefits. (1) This omission in the law masks the fact that discrimination against these groups is deeply ingrained and currently lawful. Not only does this seem to indicate a lack of awareness on the part of the legislature, it also seems to demonstrate ignorance of the fact that homeless people, although impoverished, possess basic human rights.
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ItemThe Schiavo and Korp cases: Conceptualising end-of-life decision making(Law Book Co., 2005)An incompetent, terminally ill patient can be viewed in two ways – as a person who is dying, when futile, life-prolonging treatment can be lawfully withdrawn; or a person with a disability, for whom a guardian must be appointed to decide about treatment. Terri Schiavo’s husband took the first view and her parents the second. Maria Korp was regarded as dying when treatment was withdrawn. The difference in conceptualising a patient’s situation is critical. Where a patient is dying, treatment can be lawfully withdrawn whatever the view of the relatives; they cannot require treatment to be continued. Where a patient has a disability and a surrogate decision maker is appointed, the focus is on what the patient would have wanted in such circumstances, so that the surrogate can act in accordance with the patient’s wishes. That deflects attention from the fundamental legal principle that whatever a patient or the relatives want, they are not legally entitled to demand treatment that doctors consider futile in the circumstances.
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ItemPriggish, Pitiless, and Punitive or Proud, Passionate, and Purposeful? Dichotomies, Sexual Harassment, and "Victim-Feminism"(UNIV TORONTO PRESS INC, 2005)Australia's version of the popular genre of the "victim-feminism" debate played out via a case of sexual harassment in a university college, in which two young women alleged that they had been sexually harassed by the master [chief executive officer] of their college. This event became much more than a matter of parochial interest when one of Australia's best-known novelists decided to write a book about it. The book generated enormous media attention, though this was often very polarized and not very useful in furthering our understanding of sexual harassment. However, there was some interesting debate in the wake of the book that did manage to transcend the dichotomy of "power" versus "powerlessness." La version australienne du débat populaire du « féminisme de victimisation » s'est déroulée par le biais d'un cas de harcèlement sexuel dans un collège universitaire, dans lequel deux jeunes femmes ont allégué avoir été harcelées sexuellement par le maître [p. d.g.] de leur collège. Cet événement a eu une portée qui déborde largement son lieu d'origine lorsque l'une des romancières les plus connues en Australie a décidé d'écrire un livre à ce sujet. Le livre a été trèsmédiatisé, bien que les reportages aient été souvent très polarisés et sans grande utilité pour approfondir notre compréhension du harcèlement sexuel. Il y a eu, néanmoins, dans la foulée de la publication du livre, un débat intéressant qui a réussi à transcender la dichotomie du « pouvoir » face à « l'impuissance ».
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ItemDISQUALIFICATION OF MEMBERS OF PARLIAMENT IN VICTORIA(MONASH UNIV, FAC LAW, 2005)Laws restricting eligibility for membership apply to all Australian parliaments, but their meaning and effect are often uncertain. The laws governing membership of the Parliament of Victoria are particularly archaic and confused. Successive amendments have been poorly integrated, creating awkward problems of interpretation. Most of the grounds of disqualification were originally derived from British models, but some have remained in Victorian law long after their abolition in the United Kingdom. Questions about their effect arise regularly, but few cases reach the courts, partly because of limitations on justiciability. This article explores the Victorian disqualifications, considering in particular the position of government office-holders and government contractors, and avenues for raising disqualification questions.
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ItemThe cinematics of jurisprudence: Scenes of "Law's moving image"(University of California Press, 2005)
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ItemAttribution of profits to branches of international banks: The OECD discussion drafts(York University, 2005)
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