Thursday, 3 April 2008

Internet Piracy, Contraband and Counterfeit Products

Data Recovery is likely to show some level of copyright violation in nearly all Australian Companies
In Moorhouse v. University of New South Wales, a writer initiated a “test case” asserting copyright infringement against the University of New South Wales. The University had provided a photocopier for the function of allowing photocopying works held by the university’s library. A chapter of the plaintiff’s manuscript was copied by means of the photocopier. The library had taken rudimentary provisions to control the unauthorised copying. No monitoring of the use of the photocopier was made. Further, he sign located on the photocopier was unclear and was determined by the Court to not be “adequate”. The Australian High Court held that, whilst the University had not directly infringed the plaintiff’s copyright, the University had sanctioned infringements of copyright in that the library had provided a boundless incitement for its patrons to duplicate material in the library.

In July 1997, the Attorney-General published a discussion paper that proposed a new broad-based technology-neutral diffusion right as well as a right of making available to the public. This provides the position where direct infringement by users of a peer-to-peer (P2P) file-sharing network would be covered in Australian law in a manner comparable to the US position in both Napster and Grokster.
[1976] R.P.C. 151.

This is similar to the findings in RCA Corp. v. John Fairfax & Sons Ltd [1982] R.P.C. 91 at 100 in which the court stated that “[A] person may be said to authorize another to commit an infringement if he or she has some form of control over the other at the time of infringement or, if there is no such control, if a person is responsible for placing in the hands of another materials which by their nature are almost inevitably to be used for the purpose of infringement.” [1976] R.P.C. 151 “[A] person who has under his control the means by which an infringement of copyright may be committed - such as a photocopying machine - and who makes it available to other persons knowing, or having reason to suspect, that it is likely to be used for the purpose of committing an infringement, and omitting to take reasonable steps to limit use to legitimate purposes, would authorize any infringement that resulted from its use”.

See the Attorney-General’s Discussion Paper, “Copyright and the Digital Agenda”, July 1997 at 71 for more details. The goal of this paper was to indicate the method by which Australia could implement the international copyright standards agreed at the December 1996 WIPO meeting.

A&M Records Inc v Napster, Inc 114 F Supp 2d 896 (ND Cal 2000) & A&M Records Inc v Napster, Inc 239 F 3d 1004 (9th Cir 2001); Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd No.s CV-01-08541-SVW, CV-01-09923-SVW (CD Cal, 25 April 2003) ('Grokster') (available at www.cacd.uscourts.gov) & Grokster Nos CV-01-08541-SVW, CV-01-09923-SVW (CD Cal, 25 April 2003), 21-2.

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