Melbourne Law School - Research Publications
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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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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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ItemReimagining Copyright's Duration(ANU Press, 2017)This collection’s foundational chapter revisited the vexed historical rationales for the grant of copyright. That uneasy juxtaposition of instrumentalist and naturalist motivations is perhaps most evident during debates about the duration of those rights. If we granted copyrights purely on instrumentalist grounds, we would grant the minimum we determined necessary to incentivise a socially optimal amount of creation. If we were driven exclusively by naturalist considerations, those rights would be perpetual.
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ItemWhat Can 100,000 Books Tell Us About the International Public Library e-Lending Landscape?(University of Borås, Sweden, 2019)Introduction. We investigated the relative availability of e-books to libraries for e-lending in five English-language countries & analysed their licence terms and prices. Method. We created a unique dataset recording author, publisher, price and terms for 100,000 titles and 388,045 e-lending licences across Australia, New Zealand, Canada, the United States and United Kingdom through the aggregator Overdrive. We developed new algorithms to estimate the original publication year for each title & to match titles across jurisdictions. Analysis. We examined the relationships between title price, age, terms, jurisdiction, publisher and publisher type using various statistical analyses and machine learning. Results. Price and licence differences across countries are largely attributable to the Big 5 publishers. Prices are largely independent of title age (unless the title is in the public domain) or the rights libraries obtain in exchange. Licence terms are not affected by age either, meaning that the most restrictive terms are often applied to older, less demanded books. Conclusions. By setting terms independent of titles' value to libraries, publishers may discourage libraries from adding older and less-demanded books to their collections. We will test this hypothesis in a follow-up library survey.
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ItemWe (Still) Need to Talk About Aereo: New Controversies and Unresolved Questions After the Supreme Court's Decision(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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ItemA New Copyright Bargain? Reclaiming Lost Culture and Getting Authors Paid(Columbia University Libraries and Columbia Law School, 2018)Copyright’s fundamental structure is based on outdated assumptions, including that marginal costs of copying and distribution are high, and registration systems necessarily onerous and expensive. International treaties embedded these assumptions into domestic laws worldwide, and for good reasons: when the Berne Convention prohibited formalities in 1908, it was a necessary response to compulsory registration systems that unfairly burdened authors. And, when those high marginal costs meant only the most popular works could be made enduringly available anyway, there was little downside in granting long terms that could outlast their owners’ interest: those less popular works were going to be lost regardless.
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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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ItemAsking the Right Questions in Copyright Cases: Lessons from Aereo and its International Brethren(Edward Elgar Publishing Ltd, 2018)This chapter addresses the implications of business models that fulfill demand for individual access to works in a manner which avoids liability for infringing the public performance and reproduction rights. The authors argue that the opportunistic engineering choices that obscure some courts’ perceptions of the impact on the on-demand access market risk removing evolving markets from the scope of copyright owners’ exclusive rights. Businesses that free-ride on copyrighted works also obtain an unfair competitive advantage over copyright licensees. The authors argue that liability should not turn on ancillary questions such as who did the act, whether unique copies were made, or the size of a transmission’s potential audience, because these bases for (or against) liability can be vulnerable to manipulation and exploitation. Instead asking the ‘right’ questions should lead to principled conclusions about the legal effects (if any) that should flow from distinctions between technological modes of exploitation.
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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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ItemOn Aereo and 'Avoision'(Copyright Society of Australia, 2014)Avoision describes conduct which seeks to exploit 'the differences between a law's goals and its self-defined limits' - a phenomenon particularly apparent in tax law. This short paper explains how the technology company Aereo utilised avoision strategies in an attempt to design its way out of liability under US copyright law. The authors argue that existing formulations encourage such strategies by applying differently depending on how the transaction is structured, resulting in a wasteful devotion of resources to hyper-technical compliance with the letter rather than meaning and purpose of the law.