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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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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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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ItemTheoretical Disagreement and the Semantic Sting(Oxford University Press (OUP), 2010)Scott Shapiro recently suggested that Ronald Dworkin's critique in Chapter 1 of Law's Empire represents the greatest threat currently facing legal positivism. Shapiro had in mind, not the semantic sting argument ('the SSA'), but rather what I call 'the argument from theoretical disagreement' (or 'the ATD'). I contend that Shapiro was right to focus on the ATD, but that even he underestimated just how serious a challenge it poses to positivism (and perhaps to other theories of law as well). The ATD, I argue, is an objection to any theory of law that denies that legal officials can engage in theoretical disagreement-that is, disagreement about the grounds of law. The SSA then seeks to explain why so many legal philosophers adopt such theories. I argue that the SSA is an implausible explanation of why many legal philosophers deny that theoretical disagreement exists, but that this does not undermine the ATD's contention that they are wrong to do so. Indeed, given the variety of forms that theoretical disagreement can take, Dworkin's positivist critics face a very significant challenge in seeking either to explain away the appearance of theoretical disagreement or to develop forms of positivism that can allow for such disagreement.
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ItemChanging work organisation and skill requirements(National Institute of Labour Studies Incorporated, 2009)This paper brings together all the case studies of work organisation and workplace change in Australian workplaces during the past decade, using these to assess exactly what we do and do not know about such change and its effects on skill requirements.
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ItemBeyond Reasonableness--A Rigorous Standard of Review for Article 15 Infringement(Indian Law Institute, 2008)
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ItemAudio-visual presentation of information for informed consent for participation in clinical trials(WILEY, 2008)BACKGROUND: Informed consent is a critical component of clinical research. Different methods of presenting information to potential participants of clinical trials may improve the informed consent process. Audio-visual interventions (presented for example on the Internet, DVD, or video cassette) are one such method. OBJECTIVES: To assess the effects of providing audio-visual information alone, or in conjunction with standard forms of information provision, to potential clinical trial participants in the informed consent process, in terms of their satisfaction, understanding and recall of information about the study, level of anxiety and their decision whether or not to participate. SEARCH STRATEGY: We searched: the Cochrane Consumers and Communication Review Group Specialised Register (searched 20 June 2006); the Cochrane Central Register of Controlled Trials (CENTRAL), The Cochrane Library, issue 2, 2006; MEDLINE (Ovid) (1966 to June week 1 2006); EMBASE (Ovid) (1988 to 2006 week 24); and other databases. We also searched reference lists of included studies and relevant review articles, and contacted study authors and experts. There were no language restrictions. SELECTION CRITERIA: Randomised and quasi-randomised controlled trials comparing audio-visual information alone, or in conjunction with standard forms of information provision (such as written or oral information as usually employed in the particular service setting), with standard forms of information provision alone, in the informed consent process for clinical trials. Trials involved individuals or their guardians asked to participate in a real (not hypothetical) clinical study. DATA COLLECTION AND ANALYSIS: Two authors independently assessed studies for inclusion and extracted data. Due to heterogeneity no meta-analysis was possible; we present the findings in a narrative review. MAIN RESULTS: We included 4 trials involving data from 511 people. Studies were set in the USA and Canada. Three were randomised controlled trials (RCTs) and the fourth a quasi-randomised trial. Their quality was mixed and results should be interpreted with caution. Considerable uncertainty remains about the effects of audio-visual interventions, compared with standard forms of information provision (such as written or oral information normally used in the particular setting), for use in the process of obtaining informed consent for clinical trials. Audio-visual interventions did not consistently increase participants' levels of knowledge/understanding (assessed in four studies), although one study showed better retention of knowledge amongst intervention recipients. An audio-visual intervention may transiently increase people's willingness to participate in trials (one study), but this was not sustained at two to four weeks post-intervention. Perceived worth of the trial did not appear to be influenced by an audio-visual intervention (one study), but another study suggested that the quality of information disclosed may be enhanced by an audio-visual intervention. Many relevant outcomes including harms were not measured. The heterogeneity in results may reflect the differences in intervention design, content and delivery, the populations studied and the diverse methods of outcome assessment in included studies. AUTHORS' CONCLUSIONS: The value of audio-visual interventions for people considering participating in clinical trials remains unclear. Evidence is mixed as to whether audio-visual interventions enhance people's knowledge of the trial they are considering entering, and/or the health condition the trial is designed to address; one study showed improved retention of knowledge amongst intervention recipients. The intervention may also have small positive effects on the quality of information disclosed, and may increase willingness to participate in the short-term; however the evidence is weak. There were no data for several primary outcomes, including harms. In the absence of clear results, triallists should continue to explore innovative methods of providing information to potential trial participants. Further research should take the form of high-quality randomised controlled trials, with clear reporting of methods. Studies should conduct content assessment of audio-visual and other innovative interventions for people of differing levels of understanding and education; also for different age and cultural groups. Researchers should assess systematically the effects of different intervention components and delivery characteristics, and should involve consumers in intervention development. Studies should assess additional outcomes relevant to individuals' decisional capacity, using validated tools, including satisfaction; anxiety; and adherence to the subsequent trial protocol.
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ItemInterventions for Improving Communication with Children and Adolescents about their Cancer(Cochrane Collaboration, 2008)BACKGROUND: Communication with children and adolescents with cancer about their disease and treatment and the implications of these is an important aspect of good quality care. It is often poorly performed in practice. Various interventions have been developed that aim to enhance communication involving children or adolescents with cancer. OBJECTIVES: To assess the effects of interventions for improving communication with children and/or adolescents about their cancer, its treatment and their implications, updating the 2003 version of this review. SEARCH STRATEGY: In April 2006 we updated searches of the following sources: CENTRAL (The Cochrane Library, issue 1 2006); MEDLINE (Ovid), (2003 to March week 5 2006); EMBASE (Ovid) (2003 to 2006 week 13); PsycINFO (Ovid) (2003 to March week 5 2006); CINAHL (Ovid) (2003 to March week 5 2006); ERIC (CSA) (earliest to 2006); Sociological Abstracts (CSA) (earliest to 2006); Dissertation Abstracts: (2002 to 6 April 2006).In 2003 we conducted searches of CENTRAL; MEDLINE, EMBASE, PsycINFO, CINAHL, ERIC, Sociological Abstracts and Dissertation Abstracts.For the initial (2001) publication of this review we also searched the following databases: PsycLIT; Cancerlit; Sociofile; Health Management Information Consortium; ASSIA; LISA; PAIS; Information Science Abstracts; JICST; Pascal; Linguistics and Language Behavior Abstracts; Mental Health Abstracts; AMED; MANTIS.We also searched the bibliographies of studies assessed for inclusion, and contacted experts in the field. SELECTION CRITERIA: Randomised and non-randomised controlled trials, and before and after studies, evaluating the effects of interventions for improving communication with children and/or adolescents about their cancer, treatment and related issues. DATA COLLECTION AND ANALYSIS: Data relating to the interventions, populations and outcomes studied and the design and methodological quality of included studies were extracted by one review author and checked by another review author. We present a narrative summary of the results. MAIN RESULTS: One new study met the criteria for inclusion; in total we have included ten studies involving 438 participants. Studies were diverse in terms of the interventions evaluated, study designs used, types of people who participated and the outcomes measured.One study of a computer-assisted education programme reported improvements in knowledge and understanding about blood counts and cancer symptoms. One study of a CD-ROM about leukaemia reported an improvement in children's feelings of control over their health. One study of art therapy as support for children during painful procedures reported an increase in positive, collaborative behaviour. Two out of two studies of school reintegration programs reported improvements in some aspects of psychosocial wellbeing (one in anxiety and one in depression), social wellbeing (two in social competence and one in social support) and behavioural problems; and one reported improvements in physical competence. One newly-identified study of a multifaceted interactive intervention reported a reduction in distress (as measured by heart rate) related to radiation therapy.Two studies of group therapy, one of planned play and story telling, and one of a self-care coping intervention, found no significant effects on the psychological or clinical outcomes measured. AUTHORS' CONCLUSIONS: Interventions to enhance communication involving children and adolescents with cancer have not been widely or rigorously assessed. The weak evidence that exists suggests that some children and adolescents with cancer may derive some benefit from specific information-giving programs, from support before and during particular procedures, and from interventions that aim to facilitate their reintegration into school and social activities. More research is needed to investigate the effects of these and other related interventions.