06 October 2012

Facebook CSR

A recent post highlighted questions about Facebook's unresponsiveness to suggestions by the Victorian Police that it remove offensive content. Removal is permissible under the social network service's terms & conditions. The Age reports that Police Chief Commissioner Ken Lay has
savaged Facebook, declaring that the social media giant has incited hatred and undermined the state's legal system by hosting pages that could prejudice the trial of the man who allegedly raped and murdered Jill Meagher. ...
Facebook's arguments about why it cannot remove the pages - some of which call for ___  to be executed - are "a nonsense", and that the company lacked a sense of social responsibility. 
The report indicates that
While it was reported earlier this week that Facebook had removed the pages, Mr Lay said this morning that it was actually the creator of the page who removed it.
"They've got a social responsibility, this mob," Mr Lay told 3AW. "If they're going to make a lot of money out of the community, they've got to invest in the community too, and that's to behave appropriately and ensure that Facebook doesn't incite hatred or doesn't act in a way that undermines the legal system.
"Basically they're telling us, well, give us a court order and we'll change our view. But that's just a nonsense to me. If every business behaved like that, we'd be in a sorry state in this community. "To me it's just a nonsense that someone who is sucking an enormous amount of money out of the community isn't prepared to invest in that community by helping it stay safe and act in an appropiate manner." 
The Chief Commissioner indicates that 'police, and state and federal politicians were working on ways to force Facebook to remove offensive pages when requested'.

03 October 2012

Bullies and Bodies

'Schools, Cyberbullies, and the Surveillance State' by Deborah Ahrens in American Criminal Law Review (2012) comments that
In recent years, parents, educators, and the media have expressed a rising concern about the prevalence of bullying in our schools. In particular, this concern has been brought to the forefront with the emergence of “cyberbullying” and “sexting”. In response to this perceived epidemic of poor student behavior, legislatures and school officials have adopted a variety of new laws and search policies. Most notably, they have adopted policies that give school officials the authority to search students’ electronic communication devices. This article narrates these developments, assesses their impact on the lives of students and the culture of our schools and then locates them in broader trends in schooling, parenting, and policing. More specifically, this article explores the degree to which our sharp spike in concern over traditional bullying, cyberbullying, and sexting, and our resort to the surveillance of student devices as a response to such a concern, reflects important lessons about our collective conception of student privacy, about the expectations that parents have of the role that school will play in their children’s lives, and about the transformation of public schools into public institutions focused on criminal law and criminal-law-like approaches to perceived social problems. When analyzed in cultural context, our schools’ initial response to concerns about cyberbullying and sexting is disquieting. Though understandable — indeed even predictable — the approaches we have thus far chosen do not reflect considered policy supported by empirical evidence, but, rather, one more step in the reorientation of American institutions generally, and public schools specifically, towards the reflexive adoption of surveillance and punishment as the response to any potentially serious problem.
'Anatomy's use of unclaimed bodies: Reasons Against Continued Dependence on an Ethically Dubious Practice' by D. Gareth Jones and Maja I. Whitaker in (2012) 25(2) Clinical Anatomy 246 comments that
The use of unclaimed bodies has been one of the distinguishing features of the anatomy profession since the passing of nineteenth century legislation aimed at solving the problem of grave robbing. Only in more recent years has the use of bequeathed bodies supplanted dependence upon unclaimed bodies in many (but not all) countries. We argue that this dependence has opened the profession to a range of questionable ethical practices. Starting with contraventions of the early Anatomy Acts, we trace the manner in which the legitimacy of using unclaimed bodies has exposed vulnerable groups to dissection without their consent. These groups have included the impoverished, the mentally ill, African Americans, slaves, and stigmatized groups during the Nazi era. Unfortunately, ethical constraints have not been imposed on the use of unclaimed bodies. The major public plastination exhibitions of recent years invite us to revisit these issues, even though some like Body Worlds claim to use bequeathed bodies. The widespread use of unclaimed bodies in institutional settings has lent to these public exhibitions a modicum of legitimacy that is needed even when donated bodies are employed. This is because the notion of donation has changed as demonstrated by consideration of the principles of beneficence and non-maleficence. We conclude that anatomists should cease using unclaimed bodies. Difficult as this will be in some cultures, the challenge for anatomists is to establish relationships of trust with their local communities and show how body donation can assist both the community and the profession.
The authors note that
A clear trend is emerging from the history of anatomy, whereby use of the bodies of criminals morphed into illegal grave robbing, and this in turn morphed into legal use of unclaimed bodies. The move to reliance on unclaimed bodies was devoid of serious ethical reflection concerning any justification for acting in this way, nor did it face up to any of its implications, such as the significance of these people when alive, let alone of their bodies after death. The result was that unclaimed bodies rapidly came to be recognized not only as a legitimate source of bodies for dissection, but also the normal source (Jones, in press). In other words, dependence upon unclaimed bodies became normalized within the world of anatomy; their legal legitimacy transitioned into their ethical legitimacy. 
Quite apart from any legal nicety, the bodies being used had one thing in common: they were the bodies of those regarded as having had little value during life. They were the bodies of the poor, the marginalized, and those disadvantaged on cultural and/or racial grounds. The powerful drive for dissection-based learning trumped most other considerations. At one stage this allowed anatomists to support grave robbing and even on occasion murder in the interests of anatomy and medicine (Dasgupta, 2004). If transitions of this magnitude elicit little ethical reflection, there is nothing to hinder further transitions from occurring—such as the bodies of the homeless, the illegal immigrant, or the political prisoner being funneled to anatomy departments. 
Even when such atrocities lay largely in the past, the uncritical acceptance of the legitimacy of using unclaimed bodies was only made possible by ignoring the cultural inequities of their societies. Sadly, anatomists by and large operated within a heuristic atmosphere in which their scientific and medical aspirations overruled a host of relevant social, economic, and moral considerations. They appear to have been content to reflect the social mores of the privileged strata they occupied within society, and they failed to look beyond their own immediate interests or those of their profession. 
The rationale behind the use of unclaimed bodies was that since burying them used the state’s resources, passing them on to medical schools for dissec- tion benefitted both the state and the medical school. An allied argument was that this would compensate society for the burden these people had been during their lives. The Washington Post in an 1887 editorial asked: ‘‘Why would those who have made war on society or have been a burden to it be permitted to say what shall be done with their remains? Why should they not be compelled to be of some use after death, having failed to be of value to the world during life’’ (quoted in Garment et al., 2007). 
A comparable argument today could support a willingness to use the bodies of those who have suffered from chronic medical conditions throughout their lives. Having been supported by the state’s resources throughout life, why not get something back by freely using their bodies after death? One would hope that anatomists would find such a rationale ethically objectionable. 
The primary concern of anatomists has been the education of medical students, and in some cases the commercial success of their medical schools (Savitt, 1982). It is this unbalanced emphasis on anatomical education that has proved so problematic, both in the early twentieth century and subsequently. 
Consequently, elements of the historical trends traced in the previous sections are also evident today. In one medical school in South Africa unclaimed bodies sourced from government mortuaries provided 77.8% of all bodies used for dissection between 1956 and 1996 (Labuschagne and Mathey, 2000). Almost all of the black and coloured (mixed heritage) bodies were received from government mortuaries (99% and 95.8%, respectively), whereas only 34.1% of the white bodies were unclaimed bodies. The practice continues across Africa today (Gangata et al., 2010). At one Nigerian medical school, for example, there were no bequests at all; all the cadavers were supplied from the state hospital as unclaimed bodies (presumably of homeless people), accident victims, or suspected bandits shot by police (Osuagwu et al., 2004). The situation is similar in Bangladesh (Chakraborty et al., 2010), Brazil (de Melo and Pinheiro, 2010), and India (Ajita and Singh, 2007). 
By comparison, the use of unclaimed bodies is much less frequent in the United States, but the prevalence of the presence of the bodies of the poor and blacks continues a historic inequity. This is not a marginal issue, since they still constitute the source of cadavers in about 20% of United States and Canadian medical schools (Dasgupta, 2004). Some states, including Maryland, Pennsylvania, North Carolina, Michigan, and Texas, automatically pass on unclaimed bodies to state anatomy boards (Dasgupta, 2004; Harrington and Sayre, 2006; Cunningham, 2009; Funk, 2010). For instance, in 2002, 40% of bodies used for study in Maryland were unclaimed bodies. The Maryland Body Donation Program has even boasted of making money for the state by charging medical schools a nominal fee for the cadavers provided (Cunningham, 2009). In some other states unclaimed bodies are accumulating in state mortuaries as more families find themselves unable to afford funerals and states cut funding for public burials (Funk, 2010). In contrast, medical schools in Kansas and Oregon have recently decided to refuse to accept unclaimed bodies despite their legality (Saker, 2009; Koranda, 2010). 
This raises the question of what qualifies as an unclaimed body in the United States. According to Coelho and Caplan (1997), this is usually the body of an individual who has died in a hospital or nursing home but which has not been claimed by family. Homeless or indigent people found on the street are rarely used these days, unlike the past, since these are no longer considered suitable for anatomical study. The result is that the number of unclaimed cadavers received by medical schools is relatively small (Davidson, 1995), although in some larger cities they may constitute a major source of cadavers for dissection. 
Anatomists should not hide behind the claim that the practices in which they engage are legal; for instance, they were legal in Nazi Germany. What should have been queried was whether practices considered legal are ethical by any generally accepted notion of what constitutes ethical practice. In other words, anatomists have a responsibility to be both ethically aware and ethically astute, and not blindly accept the standards imposed by their political masters (Jones, 2011a). However, when the use of unclaimed bodies is accepted, and when this is legal, there is little in place, beyond the moral char- acter of individual anatomists, to stem unethical practices. 
The use of unclaimed bodies does not, of course, lead inevitably to the ethical catastrophes encountered in the anatomical practices undertaken in Nazi Germany, but it may provide an environment that makes possible such activities. If anatomists had stipulated that they would limit their use of bodies to those bequeathed following free and fully informed consent, the consequences for the practice of anatomy would probably have been major. However, this was never tested.
The article is usefully read in conjunction with 'Dissecting the history of anatomy in the Third Reich — 1989–2010: A personal account' by William E. Seidelman in (2012) 194(3) Annals of Anatomy - Anatomischer Anzeiger 228
a personal narrative of involvement with the revelations of the use of anatomical and pathological specimens of victims of Nazi terror. The narrative documents responses to the question of the retention and use of anatomical and pathological specimens from victims of Nazi terror by leading academic and scientific institutions and organizations in Germany and Austria including the government of the Federal Republic of (West) Germany, the University of Tübingen, the University of Vienna, the Max Planck Society and the Anatomische Gesellschaft. It begins with the public revelations of 1989 and concludes with the September 2010 Symposium on the History of Anatomy during the Third Reich at the University of Würzburg. The narrative documents a 22-year transition in attitude and responses to the investigation and documentation of the history of anatomy and pathology during the Third Reich. The chronicle includes the 1989 proposed “Call for an International Commemoration” by the author, together with the bioethicist Professor Arthur Caplan, on the occasion of the planned burial of the misbegotten specimens and the responses to that proposal.

We're Not In Kansas

'The Right to be Let Alone: The Kansas Right of Privacy' by J. Lyn Entrikin comments that -
In the early years of the twentieth century, Kansas was among the states that took the lead in recognizing a common law right of privacy. Since then, the Kansas courts have generally followed the Restatement (Second) of Torts in defining and recognizing actionable invasion of privacy claims. With limited exceptions, however, the Kansas Legislature has been slow to recognize or even limit the right of privacy by statutory enactment. And both the Kansas and federal courts have repeatedly recognized a variety of absolute and qualified defenses to Kansas common law privacy claims. The result is a well-established common law right of privacy, but with several traps for the unwary. What was a remarkably progressive approach in 1918 to the right of privacy has since evolved to become a relatively constrained set of privacy rights compared to the statutory and common law rights of privacy recognized by a majority of other states. 
In recent years the Kansas Legislature has enacted comprehensive criminal statutes prohibiting identity fraud, identity theft, breach of privacy, computer crime, and other privacy invasions. However, very few Kansas criminal statutes allow a victim of these crimes to pursue a private cause of action against the perpetrator. Moreover, the Kansas courts have been reluctant to recognize common law privacy claims on the basis of criminal statutes that do not explicitly authorize private causes of action. With respect to civil claims for invasion of privacy, the Kansas courts have been slow to recognize the significant implications associated with the rapidly developing computer and internet technology for the dissemination of private personal information. 
Part I of this article briefly addresses the history of the common law right of privacy in the United States. Part II discusses the evolution of the Kansas right of privacy, beginning with Kunz v. Allen, 172 P. 532 (Kan. 1918), the leading Kansas case. Part III addresses each of the four common law privacy claims as they have evolved in Kansas, together with the specific defenses the courts have recognized with respect to each variation. Part IV addresses available remedies and proof of damages. Part V addresses Kansas statutory enactments that may implicate the Kansas right of privacy. Part VI identifies unresolved issues, including some that other states have struggled to resolve but that Kansas courts have yet to address. Part VII concludes by urging Kansas courts and lawmakers to address the significant gaps and unresolved issues in Kansas privacy law.

Fair Game?

'Playing Away from Home: Sportspeople, Privacy and the Law' by David Rolph in 6 Australian and New Zealand Sports Law Journal (2011) 35-62 notes that
The private lives of sportspeople are of considerable interest to many media outlets and their audiences, yet sportspeople may not always be able to protect their privacy adequately by legal means. Focusing on Australian and United Kingdom law, this article examines how sportspeople can indirectly protect their privacy through defamation law. It also examines how breach of confidence and the proposed introduction of a statutory cause of action for invasion of privacy in Australia. Finally, it analyses the recent cases of Terry v Persons Unknown [2010] EWHC 119 (QB) and ‘the St Kilda schoolgirl scandal’ to explore the legal and practical difficulties sportspeople confront in protecting their privacy and managing their image.
In discussing recent developments Rolph notes that
As privacy law in Australia develops in whatever form it takes, sportspeople will confront ongoing difficulties protecting their privacy against media intrusion. For sportspeople who have long been prominent in their sporting careers and therefore of interest to the media, often in relation to non-sporting aspects of their lives, the prolonged media exposure may act to deprive them of expectations of privacy they might otherwise have enjoyed. For instance, in 2010, an escort, Jenny Thompson, gave an interview to the tabloid newspaper, The News of the World, about having sex with Premier League footballer, Wayne Rooney, while Rooney's wife, Coleen, was pregnant. Rooney reportedly considered seeking an injunction to restrain the interview being published but decided against it. The fact that, in 2004, Rooney had voluntarily discussed his use of prostitutes when he was "very young and immature", and, to a lesser extent, the fact that he and his wife sold the rights to their wedding photographs to a women's magazine for an estimated £2.5 million, would have weighed against the success of any application, as this prior media coverage, particularly the former, could be used as the basis of a defence of public interest by a media outlet. In order for sportspeople to maximise the possibility of protecting their privacy against media intrusion, they need not only to be vigilant but also consistent in their dealings with the media.
Interaction with the media can also present another difficulty. In Terry v Persons Unknown, the active "reputation management‟ engaged in on behalf of John Terry, the captain of the Chelsea and the English national soccer teams and 2009 Father of the Year, deprived him of his ability to protect his privacy. In late January 2010, Terry sought an injunction to restrain the publication of the fact of his extra-marital relationship with French model, Vanessa Perroncel; details of their relationship, including its consequences; material leading to the identification of Terry and Perroncel; and photographs evidencing or detailing these matters. Tugendhat J accepted that the information, if published and found to be false, was arguably defamatory. The evidence before the court indicated that Terry‟s solicitors and business partners met to discuss media interest in Terry‟s private life. The business partners arranged for Perroncel to sign a confidentiality agreement. Tugendhat J was concerned about this, as, unlike the solicitors, the business partners owed no duties to the court. His Lordship inferred that the business partners had a clear, commercial interest in protecting and enhancing Terry's reputation, particularly for the purposes of sponsorship. He also had reservations about whether the confidentiality agreement accurately reflected Perroncel's wishes, suggesting a power imbalance between Terry and Perroncel based on their relative public profiles, questioning whether the stated consideration of £1 was the only consideration provided and querying how Terry's business partners came to be talking to Perroncel in the first place. Tugendhat J was also concerned that Terry did not put on any evidence himself. This lack of evidence was apparently because Terry was busy. In his Lordship's words, "[r]espect for the dignity and autonomy of the individuals concerned requires that, if practicable they should speak for themselves". Given that the interest sought to be protected in the proceedings was Terry's personal privacy, this gap in the evidence was telling. It fortified Tugendhat J in his ultimate conclusion that Terry was principally concerned with his reputation, not his privacy. In his Lordship's view, Terry treated the legal proceedings in response to the allegations as "a business matter". Consequently, the restrictive approach to the grant of injunctions to restrain the publication of defamatory matter applied. The newspapers were at liberty to publish the allegations. Terry v Persons Unknown indicates that successful sportspeople, who rely upon professional services to create, maintain and protect their public profiles, need to take a different approach when engaging in litigation to protect their privacy. Given the highly personal nature of the interest involved, courts require sportspeople to demonstrate an active concern for their privacy, rather than devolving that responsibility to others.
When seeking to protect their personal privacy, sportspeople also confront real challenges from technology. This capacity and the inadequacy of current Australian laws to protect personal privacy were amply demonstrated by the experience of several prominent St Kilda footballers in late 2010. A seventeen year old girl uploaded naked photographs of Nick Riewoldt and Nick dal Santo to her Facebook page. She claimed that she had come to know the footballers when they visited her school, that a sexual relationship developed with one player, Sam Gilbert, and that she fell pregnant with his child, although the baby was stillborn. She claimed that she took the photographs herself in Melbourne but it was later revealed that they were taken by Gilbert on a team trip to Miami and that she had copied them from his laptop computer. Riewoldt had asked Gilbert to delete them immediately but Gilbert had not done so. The girl threatened to release further compromising photographs of other players from the Carlton and Sydney AFL clubs but this never transpired. The St Kilda Football Club and Gilbert commenced proceedings in the Federal Court of Australia against the girl. Marshall J ordered the girl to take down the photographs and not to post any further ones. However, by then, the photographs were widely circulating on the internet. The girl continued to make allegations via Twitter and Youtube. As a result of the publication of the photographs, Riewoldt was harassed when he went out in public. In January 2011, a settlement was reached whereby the girl agreed to comply with a court order that she delete the photographs and not repost them again in return for accommodation being provided for her for several months. The resolution of the Federal Court proceedings was not the end of the matter. The girl in question attended the St Kilda AFL team's training session, distributing leaflets and heckling players. In February 2011, she also claimed that a sexual relationship developed between her and player agent, Ricky Nixon, during which he supplied her with cocaine. Following an investigation, Nixon was banned by the AFL Players' Association's Agents Accreditation Board from acting as a player agent for two years. In March 2011, the girl gave an interview to 60 Minutes, as a result of which her identity became widely discussed in the traditional media (although it had been readily accessible on the internet from the outset). In the interview, Kim Duthie admitted that she had lied about her pregnancy. Duthie subsequently admitted that she lied about her involvement with Nixon but she may have been lying about her lying. At the time of writing, neither Riewoldt nor dal Santo has taken legal action in relation to the invasion of privacy. As a result of this affair, the AFL Players' Association called for the introduction of effective privacy laws, not only for players but for all individuals. The AFL also conducted a session for rookie players on how to use social media appropriately. This incident clearly demonstrates how vulnerable high-profile sportspeople are to having their privacy invaded and how inadequate existing legal protections are to provide them with a remedy.
Even if sportspeople have the benefit of court orders protecting their privacy, they may nevertheless find their private lives exposed by virtue of internet technologies. The recent experience of Manchester United footballer, Ryan Giggs, underscores this. Initially known by the pseudonym, 'CTB', Giggs obtained an interim injunction, preventing former Miss Wales and Big Brother contestant, Imogen Thomas, from giving an interview with The Sun newspaper about their relationship. Giggs suggested, and Eady J accepted as arguable, that Thomas was attempting to blackmail Giggs – an allegation rejected by those representing Thomas. Even though the court orders extended beyond traditional media, the social media platform, Twitter, allowed individuals to speculate as to the identity of 'CTB'. A large number of names were suggested, although Giggs‟ name predominated. So concerned was Giggs that he commenced proceedings against Twitter for breaching the injunction. Eady J refused to vary the injunction to allow Giggs to be identified on the basis that his identity had become public via Twitter. This was not the end of the matter. The Scottish newspaper, The Sunday Herald, acting on advice that an injunction issued by an English court was not binding in Scotland, published a front page photograph of Giggs with the word, 'CENSORED', written in a black bar across his eyes. Although it did not name Giggs, he was clearly identifiable. The newspaper contained substantial coverage of the case and explained why it had decided to disclose Giggs' identity: it was concerned with the pernicious effect of injunctions and superinjunctions on freedom of the press and open justice. As a result of its conduct, The Sunday Herald was threatened with contempt proceedings. Giggs' injunction was further subverted by John Hemming, a Liberal Democrat parliamentarian, who named Giggs as 'CTB' under parliamentary privilege in the House of Commons. Tugendhat J refused to vary the injunction to allow Giggs to be named on the basis that he had been named in parliamentary proceedings. However, the combined effect of these three forms of disclosure was that Giggs became widely known and reported in traditional media as 'CTB'. Newspapers speculated whether Giggs was "the new Tiger Woods" and whether his sponsorship deals were in jeopardy. The United Kingdom Attorney-General, Dominic Grieve QC warned that tweeters who breached injunctions in privacy cases were exposing themselves to punishment for contempt of court. Revelations about Giggs' private life continue to emerge, with the most recent, at the time of writing, being the allegation that Giggs had an eight year affair with his sister-in-law, as well as liaisons with his mistress' mother and a third, undisclosed lover.
Paradoxically, privacy protections are developing at the same time that internet technologies with the potential to subvert these protections are burgeoning. It may not be possible to protect privacy through absolute secrecy and prior restraint. For lawmakers and legal advisors, the experience of Ryan Giggs provides a salutary lesson. Whilst plaintiffs might prefer to avoid an invasion of privacy in the first place, the balance of competing interests might favour allowing media outlets to publish and then allow plaintiffs to sue for damages, mirroring defamation cases.


The Victorian Women's Trust has released A Switch In Time: Restoring respect to Australian politics [PDF] by Mary Crooks, regarding civil culture.

It argues that -
Australians live in a robust and enduring representative democracy. 
We are free to debate ideas and express dissenting views without being coerced, or in danger of being placed under house arrest or even worse. We can assemble in the streets and protest about issues without fear of violence. Any citizen may stand for office and we have the right to vote for people to represent us in all three levels of government – federal, state and local. We accept, maybe grudgingly, the responsibility of paying tax. We embrace the concept of a ‘fair go’ and have applied this over the decades in shaping our institutions, welfare systems and political discourse. Mostly, we see ourselves as standing for equality between people. 
The idea of the common good appeals: we acknowledge that our shared responsibility as citizens in a democracy is to debate with tolerance, directly and through our elected representatives, the best means to create opportunities, regulations and services that meet the basic needs of the population and sustain the environment. There is a general understanding of the principle of the separation of powers, with government, the judiciary and the public service working independently as part of an integrated system. 
We install governments in the expectation that each will serve its full term and act in accordance with its mandate to implement policies that advance the common good. We recognise the importance of our governments being transparent and accountable. At the same time, we see them as having a critical role in promoting fairness, social cohesion, economic prosperity and the protection of the most vulnerable. We assume that our print and electronic media seek to act impartially, adhering to their codes of practice by observing independence and truthfulness in reporting on policy and politics. 
A stable, robust, healthy democracy such as the one we have created in Australia does not of itself possess magical safeguards or protections. These lie with every one of us. As citizens, it is up to us to nourish and sustain our democracy and to this end we empower our elected representatives to maintain and extend what we see as necessary democratic standards. It is also up to us to be on the alert for the emergence of system ‘faults’ that require attention and threats that could result in the erosion and weakening of our democratic institutions and political culture. We need to be prepared to stand up and take action when we sense that a situation is developing which, unchecked, will lead to serious strains within our democracy. Nationally, we are now at such a point. Prepared to toss aside respect for democratic principles, sections of our politics, business community and media persist with the claim that the current minority government ‘lacks legitimacy’. Almost every day, we hear and read of calls for a ‘fresh’ election. What is the basis for this, considering that our minority government is legitimate, is constitutionally valid and accords with the central provisions of our Westminster system? The fact that the current minority government was formed between a major party, a small number of Independent members of parliament and an Australian Greens Party member does not compromise its legitimacy. Constitutionally, these members have the same status as those who belong to the major parties. 
The ‘tear-down’ mentality that attacks this legitimacy presents significant risks for our democracy. It undermines the pivotal Westminster principle, that a government is legitimate if it can command a majority in the lower house. The frequent calls for a new election override another key democratic principle, that a government should be able to serve a full term. If elections are called at any time and for any reason, government becomes unstable, with little appetite for boldness, reform and carrying through of the will of the people. Instability can make a government particularly vulnerable to the undue influence of powerful lobbies and vested interests.
Crooks notes gendered attacks on Julia Gillard, such as those by Alan Jones, and comments -
… we are witnessing a gender-based undermining of a prime minister which reflects a lack of respect for her, the office she holds, and for women generally. That we have Julia Gillard as prime minister for the first time in our nation’s history should be a cause for celebrating an important advance for women as well as for signposting a new level of political maturity in our democratic society. 
Levelling constructive criticism of government policies and decisions where it is deserved is one thing. Relentless, gendered attack such as has dogged the prime minister since her election is another. 
The ‘tear-down’ mentality towards the legitimate minority government, the gendered criticism of the prime minister and the disrespect shown for her office are aggressively promoted by sections of the Australian media in ways that reflect an unhealthy concentration of media ownership. We are told ad nauseam that the prime minister ‘has no authority’; that her leadership is ‘tainted’ because she ‘assassinated’ Kevin Rudd; and that she has ‘breached the trust of the public’ by legislating for a carbon price, as if this is the first time that a leader’s commitment has ever altered. 
Hate and vitriol directed toward our prime minister are given undue airplay by radio presenters who deny any complicity. And in the absence of adequate constraints, social media is facilitating an unprecedented level of abusive language and misogynistic attitudes that fly in the face of personal accountability and a basic civility. The sexism and misogyny directed at the current prime minister are not just about Julia Gillard – this deep prejudice reveals attitudes and beliefs about the role, capacity and place of all women and girls. It would seem that women are not after all political equals in Australian society. An even more disturbing aspect is that a great many of the attacks amount to ugly and violent abuse of a kind and level not previously seen in this country. And what does this abuse aim to achieve or contribute? Nothing – it is just ugly and violent.

The Natural Law of Orcs

'The Renaissance of Natural Law: Tolkien, Fantasy, and Video Games' by Edward Castronova  considers  the moral systems that designers create inside video games -
There’s much similarity across games, despite wide differences in narratives, backgrounds, target demographics, and mechanics. Using the terms of Dungeons & Dragons morality, most games have three moral factions: Lawful Good, Chaotic Good, and Chaotic Evil. Players usually get to choose between Lawful or Chaotic Good, while the AI plays Chaotic Evil. 
Now, why does this pattern appear so frequently? I’ll argue it has something to do with Natural Law. Natural Law derives moral judgment from the notion that any reasonably well‐formed human mind can discern what the purpose or end of an item is: What it’s for. It’s a common‐sense morality, which may or may not work well in advanced bioethics but suits the moral world of video games perfectly, where bad guys are really easy to identify but the players fight back and forth about whether to be a rule‐following hero of light or a renegade, rebellious, dark angel. That law/chaos tension is also an aspect of Natural Law. 
As for how Natural law got into games, the path seems to run through JRR Tolkien – devout Roman Catholic and therefore no stranger to the teachings of Aquinas. From Aquinas to Tolkien to D&D to modern video games, the LG/CG/CE triangle persists as a simple moral world, but one that, judging from player numbers, people very earnestly want to live in. Is this in itself a good thing? Since we’re talking Natural Law, let’s conclude by asking – what is the purpose of fantasy? Does this usage suit fantasy’s purpose?


'The Anatomy of Insurance Anti-Discrimination Laws' (U of Michigan Law & Econ Research Paper No. 12-017) by Ronen Avraham, Kyle Logue & Daniel Schwarcz notes that
Insurance companies are in the business of discrimination. Insurers attempt to classify insureds into separate risk pools based on their differences in risk profiles, first, so that they can charge different premiums to the different groups based on their risk and, second, to incentivize risk reduction by insureds. This is why we let insurers discriminate. There are, however, limits to how much discrimination, or the types of discrimination, we will allow even insurers to engage in. But what exactly are those limits, and how are they justified? To answer this question, rather than starting with top-down grand normative theories, this Article takes a bottom-up approach and explores the state laws that govern this question in the first place. The Article makes use of a unique hand-collected dataset of laws regulating insurer risk classification in all 51 jurisdictions. Among our findings are that state insurance anti-discrimination laws vary a great deal, in substance and in the intensity of regulation, across lines of insurance, across policyholder characteristics, and across states. The Article also finds that, contrary to expectations, a surprising number of jurisdictions do not have any laws restricting insurers’ ability to discriminate on the basis of race, ethnicity, or religion. In addition, the Article finds that much of the cross-line variation in state insurance regulations can be explained in terms of adverse selection. Specifically, we show that in the lines of insurance where concerns about adverse selection are strong, states allow insurers more leeway in discriminating among insureds. The Article’s primary contribution is descriptive; however, it has potential normative implications as well.
The authors comment that
This article takes a different approach to exploring insurance discrimination. Rather than starting with top-down grand normative theories, it takes a bottom-up approach and explores the state laws that govern this question in the first place. This is much harder than it initially sounds, which may be why we are the first to undertake the task. States’ regulation of insurers’ risk classification practices is remarkably multi-faceted and variable. In fact, it varies along at least four core dimensions. First, risk classification regulation often varies across insurance lines. For instance, a state may prohibit automobile insurers from taking into account age in discriminating among policyholders, while explicitly permit life insurers to do so. Second, state laws may vary across different policyholder characteristics: whereas automobile insurers may be permitted to take into account gender in classifying policyholders, they may be prohibited from taking into account race or national origin. Third, the intensity of state risk classification regulation is quite heterogeneous: such laws may simply require an actuarial justification for discriminating on the basis of a characteristic, or it might categorically prohibit insurers from using that characteristic. Finally, risk classification laws differ dramatically by state. To capture these details, we use a unique hand-collected dataset of state laws on the regulation of insurer risk classification. Since the law in this area is determined primarily at the state level, we identified and analyzed the relevant state statutes and regulations in all 50 states (and Washington DC) and coded those laws for five different lines of insurance and for nine different characteristics. Once we had completed a thorough search and coding of the existing state statutory and regulatory law, we went back to every state and looked for any court decision or administrative ruling that interpreted the relevant statutory or regulatory language to determine whether the initial code assigned to that law, for a given line or characteristic, should be adjusted. The result is the first ever database of insurance anti-discrimination laws in the U.S. 
We then investigate the laws. Our empirical results are summarized below through numerous graphs and pictures that are hard to distill in just few words. But they show, for example, that state laws regulating risk-classification practices in the auto and property/casualty insurance lines are the most restrictive. By contrast, the least restrictive state regulations apply to disability andlife insurance, which means that they permit the highest amount of discrimination or risk- classification for those lines of insurance. We also document more specific cross-line variations. For example, forty-eight of the fifty-one jurisdictions (as well as the federal government) completely prohibit the use of genetic endowment for health insurance, even though in the other four lines of insurance genetic endowment is among the least restricted characteristics. And while race, ethnicity, and religion are the most intensely restricted characteristics in every line of insurance, we find, contrary to conventional wisdom, that a surprising number of jurisdictions do not, in fact, have any laws restricting insurers’ capacity to discriminate on the basis of these characteristics. 
Having mapped out these complexities, we analyze the results based on the various explanatory factors that are emphasized in the extant theoretical literature. Our goal in doing so is to provide a descriptive, bottom-up understanding, of the reasons and possible justification for the pattern of state laws that we observe. By doing so, we are able to solve several puzzles regarding variations in anti-discrimination insurance laws which look initially as unsolvable. Why is gender more strongly restricted in auto, disability, and property/casualty insurance than it is in health and life insurance? Or, as was just mentioned above, why do states prohibit the use of genetic endowment for health insurance, but permit it in the other four lines of insurance? 
Surprisingly, we find that concerns about adverse selection can explain and justify a large part of the cross-line variations that are embedded in state insurance regulation. In particular, we show that in lines where concerns about adverse selection are strong, states allow insurers to discriminate (in fact, to classify) among the insureds. By contrast, where concerns about adverse selection are weak, insurers are more like to be prohibited from engaging in such discrimination. A more diverse set of factors is needed to explain cross-characteristic variation in state laws. 
While the article’s contribution is primarily descriptive, it also has various potential normative implications as well. Among other things, it reveals potentially troubling cross-state variation in the regulation of insurance discrimination. For instance, twenty-one jurisdictions permit using gender in life insurance compared with twenty jurisdictions that strongly limit it; one state, North Carolina, goes as far as to prohibit it. And, as was mentioned above, state laws are also inconsistent about seemingly settled questions, such as the use of race, national origin, and religion. Yet, one would expect to see all states following roughly the same normative commitment. Discrimination is such a loaded and litigated concept in the U.S., as reflected in various landmark Supreme Court cases and federal antidiscrimination laws, that one would expect to see all states striking the balance between permissive classification and prohibited discrimination at roughly the same point. But they don’t. Perhaps this suggests that a federal legal response may in some cases be called for. Or, alternatively, perhaps it suggests that norms are doing some of the work that state insurance anti-discrimination statutes are not—especially in such areas as race, ethnicity, and religion. 
The Article proceeds as follows. Part I describes the various factors we extracted from the voluminous literature on discrimination. This literature review is the first to systematically integrate scholarship published in insurance economics journals with the insights of legal academics. It distills from these literatures twelve different factors that may shape the normative case for laws restricting insurers’ capacity to discriminate among different policyholders. Part II presents our empirical results, documenting fifty-one anti-discrimination insurance law regimes with respect to nine different characteristics (race, ethnicity, religion, gender, age, credit score, sexual orientation, genetic endowment and zip code) in five difference insurance lines (life, health, homeowners, automobile and disability). Finally, Part III attempts to explain cross-line and cross-characteristic variations using the factors we identified in Part I.

US Droit de suite and Antiquities

The US Copyright Office, ie the registration arm of the Library of Congress, is conducting an inquiry into the droit de suite (aka the resale royalty right).

The droit is in place in Australia (and in Europe) but so far has underwhelmed most stakeholders.

The Office's notice comments that -
Under the Copyright Act (the “Act”), 17 U.S.C. 101 et seq., visual artists, like other authors, are provided a bundle of exclusive rights, including rights to reproduce, distribute and create adaptations of their works. These rights, however, do not affect the disposition of the original work of authorship. Instead, the first sale doctrine, codified in 17 U.S.C. § 109, generally permits the lawful owner of a copyrighted work “to sell or otherwise dispose of the possession of that copy” and to “display that copy publicly ...” without the authorization of the creator. 
For many works, such as books, musical works and sound recordings, this system provides substantial economic benefits and incentives for creators. A question is whether the system is as advantageous for certain artists of visual works. For some artwork, where the primary financial benefit may be through the sale of the original work rather than multiple copies, the creator may receive less financial benefit from the work than do subsequent collectors or other downstream entities that are able to take advantage of the increase in the value of the artwork over time. A resale royalty right is one way by which to address this perceived inequity by allowing artists to receive additional compensation from later sales of the original work of art. Some foreign countries have experience with this approach. 
The Copyright Office has been asked by Congress to review how the current copyright legal system affects and supports visual artists; and how a federal resale royalty right for visual artists would affect current and future practices of groups or individuals involved in the creation, licensing, sale, exhibition, dissemination, and preservation of works of visual art.
In Australia the Federal Magistrates Court in BC Galleries (Vic) Pty Ltd v Commonwealth of Australia [2012] FMCA 742 has considered a challenge to the seizure and forfeiture under the Protection of Moveable Cultural Heritage Act 1986 (Cth) of items believed to be illegally exported protected objects of a foreign country that had been imported into Australia.

BC successfully argued that the Commonwealth bore the onus of proof to show that
  • each of the objects seized was a protected object of a foreign country, ie “an object forming part of the moveable cultural heritage of a foreign country” (with the 1986 Australian statute reflecting the 1970 UNESCO Convention on the means of prohibiting the illicit import, export and transfer of ownership of cultural property)
  • the object had been exported from the relevant foreign country;
  • the law of the relevant foreign country relating to cultural property prohibited the export; and
  • the object had been imported into Australia.
The Court held that some of the items were likely to be fakes and that the Commonwealth had not established beyond the balance of probabilities that others had left China since November 1982 when the Act came into operation.

It ruled that the Commonwealth had failed to establish on the balance of probabilities that any of the seized objects were liable to forfeiture under the provisions of the Act. An order was accordingly made for the return of the objects to the gallery.

02 October 2012

Fifty Shades of Purple

The 'Whiskas Purple' colour trade mark dispute has been noted in this blog (here and here) as a point of reference for understanding the Australian 'Cadbury's Purple' litigation, in which chocolate group Cadbury Schweppes sought to restrict competitor Darrell Lea from using a particular shade of purple to identify the favourite food of PhD candidates and intellectual property students. Birss J, in the UK High Court, yesterday reached a sensible decision in a similar dispute between Cadbury and Nestlé over purople as a colour trade mark.

In Société des Produits Nestlé S.A. v Cadbury UK Limited [2012] EWHC 2637 (Ch) the Court rejected claims by Nestlé and found that Cadbury could maintain a specific shade of purple as its trade mark for particular chocolates.
Since single colours per se are, as a matter of European law, capable of being signs within Art. 2 (i.e. they are capable of being a sign, capable of being represented graphically and capable of distinguishing) then, to paraphrase a little the words Cadbury have used in the description of the mark, in my judgment the colour purple (Pantone 2685C) applied to the whole visible surface, or being the predominant colour applied to the whole visible surface, of the packaging of chocolate, is capable of being a sign within Art. 2. The answer to the question I posed at the outset is clear on the basis of the current state of European law. 
Since on the evidence the public associate the colour purple itself with Cadbury's chocolate, Cadbury are entitled to a registered trade mark for that colour on the relevant goods and that is the mark they have applied for.
Cadbury has used purple in some of its packaging for many years, with its Dairy Milk product so branded since 1914. In 2004 it applied for registration of a UK trade mark; the point of application No. 2 376 879 "was to register the colour purple as a trade mark for chocolate". The UK trade mark Examiner objected to the application on the grounds that the trade mark was devoid of distinctive character, distinctiveness being a prerequisite for registration of marks under Australian and UK law. The application was however accepted in May 2008 after Cadbury filed evidence of distinctiveness acquired through use of the mark, ie consumers had over the years come to associate purple with Cadbury's chocolates.

In August 2008 Société des Produits Nestlé, the Swiss-based food giant, opposed the Application. That opposition was considered and in October last year a delegate of the Registrar of Trade Marks found for Cadbury, allowing the application. The finding involved amendment of the specification of goods covered by the mark, ie "Chocolate in bar and tablet form; chocolate for eating; drinking chocolate; preparations for making drinking chocolate". Nestlé appealed the decision.

The Court noted that
Nestlé does not challenge the important findings that the mark applied for is in fact distinctive (subject to a point on categories of goods). The mark is capable of distinguishing the goods of one entity from those of another. However that does not mean that Cadbury necessarily must win. The main part of Nestlé's appeal is a point of principle. The argument is that the mark applied for is not a sign capable of being represented graphically and as such is not registerable as a trade mark. This point has a number of detailed facets which I will address below. Two secondary points are taken on the specification of goods (on the inclusion of plain chocolate and on the term "chocolate for eating"). Before me Cadbury supports the decision below. It submits the appeal should be dismissed. By its Respondent's Notice Cadbury argues that it would not obtain an unfair competitive advantage by registration of the mark.
Birss J went on to comment that
Before getting into the decided cases it may be noted that the potential problems arising from applications of this kind are not hard to see. Conventional trade marks such as trade names ("Cadbury") or logos (such as a glass and a half of milk on a bar of Cadbury's Dairy Milk) do not give rise to the same conceptual problems as what have been called "exotic" trade marks such as smells, colours per se and other things. The attraction of a trade mark registration is that provided it is used and the fees are paid, it gives a perpetual monopoly. The problem is the same as the attraction but from the other perspective. Unless the registration of trade marks is kept firmly in its proper sphere, it is capable of creating perpetual unjustified monopolies in areas it should not. This is not a new problem. In his judgment in British Sugar v James Robertson [1996] RPC 281, which related to whether the word "treat" was a valid trade mark Jacob J (as he then was) started his judgment with the well known passage from the judgment of Cozens-Hardy MR in 1909:
Wealthy traders are habitually eager to enclose part of the great common of the English language and to exclude the general public of the present day and of the future from access to the enclosure.
What was said a century ago about the great common of the English language might be said today about the world's great common of the visible electromagnetic spectrum. In that sense the case before me is really very simple. Can Cadbury, even if they have shown that the public associate the colour purple with Cadbury's chocolate, obtain a trade mark registration for that colour per se?
The mark does not give Cadbury ownership of all shades of purple or comprehensive rights regarding the use of purple for anything that is edible. Cadbury will not be confiscating purple jumpers or declaring war on purple prose. 

Silicon Rights

'Extending Legal Rights To Social Robots' by Kate Darling
explores the human tendency to anthropomorphize social robots. It suggests that projecting emotions onto robotic companions could induce the desire to protect them, similar to our eagerness to protect animals that we care about. The practice of assigning rights to non-human entities is not new. Given societal demand, laws protecting social robots could fit into our current legal system parallel to animal abuse laws. While the nature of this analysis is descriptive, it aims to provide a basis for normative discussion. 
This Article recognizes that legal discourse involving science-fictional scenarios of robots with human-like cognition or emotion is premature. It argues, however, that current technology and foreseeable future developments may warrant a different approach to “robot rights”. It seems timely to consider the societal implications of anthropomorphism and how they could be addressed by our legal system.zzzzzzz 
Darling comments that
 Assuming there is societal demand, one argument in favor of granting rights to social robots sees the purpose of law as a social contract. We construct behavioral rules that most of us agree on, and we hold everyone to the agreement. In theory, the interest of the majority prevails in democratic societies, and the law is tailored to reflect social norms and preferences. If this is the purpose of the legal system, then societal desire for robot rights should be taken into account and translated to law. There is also the view, however, that laws should be used to govern behavior for the greater good of society. In other words, laws should be used to influence people’s preferences, rather than the other way around. In this case, the question of whether we should extend legal rights to social robots becomes more complex. The costs and benefits to society as a whole must be weighed. 
Whether or not one believes that the majority makes the best decisions for society in general, and even if one believes in a natural rights theory of higher truths, there could be reasons to support accommodating societal preferences. Legislatively ignoring that people feel strongly about an issue can lead to discontent and even a lack of compliance with the law as people attempt to take “justice” into their own hands. Depending on the circumstances, this could cause more problems than would simply legislating the social demand. This is not to say that denying robots rights would lead to anarchy. But if there is an easy way to adjust the law to best reflect people’s preferences, it may be worth doing so for this utilitarian reason. 
Another benefit to protecting social robots could be the above-mentioned effect of promoting socially desirable behavior. The Kantian philosophical argument for preventing cruelty to animals is that our actions towards non-humans reflect our morality — if we treat animals in inhumane ways, we become inhumane persons. This logically extends to the treatment of robotic companions. Granting them protection may encourage us and our children to behave in a way that we generally regard as morally correct, or at least in a way that makes our cohabitation more agreeable or efficient. 
There could, however, also be costs to legally protecting social robots. It is subject to debate whether extending rights to robotic companions would promote socially desirable values. Some argue that the development and dissemination of such technology encourages a society that no longer differentiates between real and fake, thereby potentially undermining values we may want to preserve. Another cost could be the danger of commercial or other exploitation of our emotional bonds to social robots. While these issues must be addressed in light of modern technology whether there is legal protection for social robots or not, they are worth considering here — in particular because a change in law could accelerate development and commercial distribution of social robots (for example by increasing their market value). 
Depending on its implementation, legal intervention could also cause the opposite effect on social robot technology by distorting market incentives, changing prices, and reducing not only the commercial production of social robots, but also potentially desirable robotics research and development in general. There could be other, indirect economic costs that arise due to the introduction of new laws, especially since they would interfere with people’s property rights. Furthermore, there are direct costs associated with establishing and enforcing the law. 
Some practical difficulties could include defining “social robot” in legal terms, especially in light of rapidly changing technology. The extent of protection would need to be clearly established, raising questions as to what constitutes “death”, what constitutes “mistreatment”, and so forth. Many of these issues could be resolved analogous to animal abuse laws, but there are likely to be some difficult edge cases. Summing up, the question of whether we should legally protect robotic companions is by no means simple. However, whether or not we end up deciding to extend second-order rights to robots, it seems timely to begin thinking about potential ways to address the general implications of anthropomorphism.


'From Betamax to YouTube: How Sony Corporation of America v. Universal City Studios, Inc. Could Still Be a Standard for New Technology' by Veronica Corsaro in (2012) 64(2) Federal Communications Law Journal 449-475 concludes
Legal approaches to new media, such as peer-to-peer networks and Internet forums of user-generated content, have been largely inconsistent. The passage of the DMCA in 1998 did not entirely address the dilemma facing courts, copyright owners, and website operators and maintainers: balancing the practical realities of the Internet against the rights of copyright owners. Legislation and case law have reflected the general sentiment that peer-to-peer networks like Napster and Grokster were primarily the domain of infringers encouraged by those who produced their software. This resulted in lawsuits that stretched the applications of direct and secondary (particularly vicarious) copyright liability. Websites that host user-generated content have received some immunity from liability in the form of Section 512 of the DMCA, but with notable exceptions, including those that strongly echo the language of vicarious liability. With the case law concerning these exceptions and their impact on Section 512 immunity still unsettled, the most practical way to view the exceptions would be to assess them through a lens that deals honestly with the continuing issues of large scale Internet infringement but also addresses the complications of pursuing copyright ownership online. 
The DMCA liability exceptions evoke the two prongs of vicarious liability—financial benefit and ability to control the infringing activity. Though courts have consistently applied (if not stated) a higher bar for websites in what may constitute financial benefit, they have also noted the suggestions of vicarious liability in the statute, even though this is against its legislative history. Even prior to the passage of the DMCA, courts were hesitant in applying direct and secondary liability to ISPs and site managers for infringements committed by users. But it is also true that the differences between user-generated content sites and peer-to-peer networks are narrow. They both derive revenue from advertising and subscriptions, and they both rely on the content of their users in order to operate. While the Supreme Court had clear evidence of Grokster’s desire to acquire copyright protected works in order to maintain its user base,157 it could certainly be argued that YouTube similarly benefits from those who post and view copyrighted material on its site. Though the courts have interpreted the Section 512 exceptions to indicate that the financial benefit a site or business receives must be “directly attributable to the infringement”— meaning the lines drawn between the specific infringement and a financial benefit are clear—this may simply not be workable for copyright owners, even in the face of flagrant, widespread infringement. The more practical solution, though rejected by the Ninth Circuit in Ellison,158 may be to instead assess how substantially a site’s income is the result of its technology being used for a “legitimate business” purpose or is simply the product of the attraction of infringing works. Or, to reprise the standard of Sony, the primary inquiry should be whether the nature of the forum for user-generated content is one with a substantially noninfringing purpose.


'Region Codes and the Territorial Mess' by Peter Yu in 30 Cardozo Arts & Entertainment Law Journal (2012) 187-264 comments that
 Tourists, frequent travelers, and foreign film aficionados hate DVD region codes with a passion. Written for the 30th Anniversary Symposium of the Cardozo Arts & Entertainment Law Journal, this article critically examines the expediency of using region-based restrictions to protect copyrighted media content. 
The article begins by closely examining four justifications for the deployment of DVD region codes: sequential release; price discrimination; distribution and licensing agreements; and censorship ratings and regulatory standards. It also identifies four areas in which DVD region codes have created unintended consequences: consumption, competition, cultural rights, and censorship. 
The article then advances three proposals to address the shortcomings of DVD region codes: the voluntary removal of these codes; the provision of affordable multiregion players; and the introduction of a right to circumvent. It concludes by warning that, with the proliferation of streaming platforms, device-embedded applications, and cloud computing, region-based restrictions could have a more significant impact on consumers in the near future.
Yu states that
Intellectual property rights are territorial by nature. Copyright holders cannot yet obtain unitary protection throughout the world. Instead, they obtain rights in Australia, Brazil, China, France, South Africa, and the United States. What type of rights they obtain, how strong these rights will be, and whether the rights will be effectively enforced depend largely on the intellectual property system each individual country has put in place. It is therefore no surprise that copyright holders seeking to protect their works in multiple markets remain frustrated by the “territorial mess” created by national divergences in laws, policies, and institutions, not to mention the additional differences in market capacities and consumer expectations. 
Although countries have occasionally enforced laws extraterritorially to abate this “territorial mess,” especially in situations involving the Internet, a less intrusive approach is to harmonize the laws of different countries. Since the nineteenth century, sovereign governments have worked with each other to address cross-border challenges by establishing international intellectual property agreements. 
These agreements ranged from the Paris, Berne, and Rome Conventions to the Agreement on Trade-Related Aspects ofIntellectual Property Rights  (“TRIPS Agreement”) of the World Trade Organization (“WTO”) to the 1996 Internet Treaties of the World Intellectual Property Organization (“WIPO”). 
While territorial challenges posed by national borders continue to exist and remain quite significant, rapid globalization, the increased mobilization of goods and people, and the arrival of the Internet and new communications technologies have further exacerbated these challenges. In the mid-1990s, the popularization of the Internet led commentators and netizens to question the success and appropriateness of using existing laws and regulations to govern the borderless Cyberspace. In A Declaration of the Independence of Cyberspace, for example, John Perry Barlow provocatively declared:
Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. 
We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear. 
By now, it is quite clear that Cyberspace, though borderless, is far from unregulable. As Lawrence Lessig, Joel Reidenberg, Tim Wu, and many others have reminded us, code can become law. By manipulating or regulating code, countries have successfully fortified borders to assert their longstanding, and often much-needed, sovereign control. After all, political scientists Robert Keohane and Joseph Nye have noted, “information does not flow in a vacuum, but in political space that is already occupied.” Notwithstanding its regulability, the borderless Cyberspace continues to pose major challenges to the enforcement of intellectual property rights. To alleviate these challenges, the House and the Senate introduced, respectively, bills to enact the Stop Online Piracy Act  (“SOPA”) and the PROTECT IP Act (“PIPA”). These proposed statutes seek to target “rogue” websites that facilitate online piracy and counterfeiting. At the international level, the United States, Japan, members of the European Union, and other like-minded countries also aggressively pushed for the adoption of the Anti-Counterfeiting Trade Agreement (“ACTA”). As of this writing, the United States is busy negotiating the Trans-Pacific Partnership Agreement, which isanticipated to include intellectual property provisions pertaining to cross-border enforcement. 
Because David Levine’s article [PDF] and the attendant commentaries in this Symposium already cover many of these issues, this Article focuses on an issue commentators have somewhat ignored: the deployment of region-based restrictions to protect copyrighted content. These restrictions show that, while technology undoubtedly has exacerbated challenges posed by territorial boundaries, rights holders, with the help of national governments, have also successfully co-opted technology to strengthen the protection of their copyrighted content. 
A leading example of such technology is the use of region codes by the movie, software, and game industries to protect content stored on digital video discs (“DVDs”)—or what the home electronics industry has now rebranded as “digital versatile discs.” Designed as technological protection measures, DVD region codes direct machines to allow access to the protected content only if the product was coded to be played in the authorized geographic region. The playback control mechanism initiated by these region codes can be found on both DVD players and computers containing DVD-ROM drives. Although a number of legal commentators have briefly analyzed DVD region codes in the context of digital rights management, very few have examinedthe expediency of using region-based restrictions to protect media content. This Article seeks to fill this void by critically evaluating the use of such restrictions to protect intellectual property rights. 
Part I of this Article provides a historical background of DVD region codes and a brief overview of the technology involved. Part II advances four justifications for the deployment of DVD region codes. This Part critically evaluates the strengths and weaknesses of these justifications. Part III identifies four areas in which DVD region codes have created unintended consequences: consumption, competition, cultural rights, and censorship. Part IV advances three modest proposals to address the shortcomings of DVD region codes. Specifically, this Part discusses (1) the voluntary removal of these codes; (2) the provision of affordable multiregion players; and (3) the introduction of a right to circumvent. Part V concludes with an explanation of why a better and deeper understanding of region-based restrictions is both timely and important. By linking DVD region codes to streaming platforms, device-embedded applications, cloud computing, and other emergent technologies, this Part warns that the impact of region-based restrictions on consumers is likely to increase in the near future.
A useful comment on Yu's article is provided by Molly Land's 'Region Codes and Human Rights' [PDF] in the same issue of the journal.

A Modest Proposal

After noting that Bryce Courtenay has accepted an honorary doctorate from the University of Canberra in "recognition of his outstanding success as an author and contributions to the community" I offer a modest proposal, with apologies to Jonathan Swift.

(Dean Swift of course gets an honorary doctorate in economics for his outstanding contribution to the Irish food problem. Regrettably he is otherwise detained and will not be collecting the doctorate in person.)

If we're awarding honorary doctorates for 'outstanding success as an author' - success presumably measured in sales figures and audience recognition - why not revamp the Olympics and abandon any pretence of achievement. Gold medals for all! A gold medal - or two - to everyone on The Footy Show. A silver to every sponsor. Bronze to every couch potato in the land.

If honorary doctorates are a popularity contest we can presumably expect to see an award to moppet Bindi Irwin "for contributions to zoology". One to Lara Bingle … for being Lara Bingle! One to Shane Warne. One to Molly Meldrum. Two to Colleen McCullough, Mr Courtenay's peer, for "outstanding success as an author" and as an historian. A batch to JK Rowling. One to Gina Rinehart for "outstanding success" in dispute resolution. One each to Kyle Sandilands and Alan Jones for contributions to discourse and national harmony. One to John Laws for poetry. A posthumous doctorate to Pro Hart. One to Tony Mokbel for services to the Australian television industry; another for innovation in overseas travel. One of course to Gary Ablett for physics. The Wiggles already have honorary doctorates from the Australian Catholic University (2006, "for contributing to early childhood education") but UC could award a doctorate - let's not be squeamish about legal personhood - to Humphrey B Bear, Big Bird, Oscar The Grouch and Homer Simpson, all of whom have the magic audience recognition. Tom Lehrer, of course, as an exponent of legal realism.

Universities should, in my opinion, restrict their higher degrees to signal academic excellence rather than, in the words of Jacques Barzun, engaging in a degree inflation that marks "its possibly justified admiration of a business or political career". That inflation - or the opportunism of particular institutions - is evident in honorary doctorates awarded to Robert Mugabe, Joh Bjelke-Petersen, Mike Tyson (1989, Doctorate in Humane Letters in 1989 from Central Ohio State University), George Foreman (Houston Graduate School of Theology), members of glitter band Slade (University of Wolverhampton),  Dannii Minogue, Kylie Minogue, Shane Warne, Yusuf Islam (aka Cat Stevens) (Exeter University, Doctor of Laws degree), James Garner (University of Oklahoma, Doctorate of Humane Letters), JK Rowling (2006, Aberdeen University, Doctorate of laws) and guitarist Brian May (Exeter University, Doctorate of Sciences for his interest in astronomy and physics). Kermit the Frog received a doctorate of amphibious letters from Southampton College at Long Island University in 1996

Courtenay announced that 'this generation' is the brightest and most intelligent the world has ever seen. The basis for that statement is unclear. There's something disturbing about a 'generation' - or a culture - that apparently needs such affirmation and doesn't critique the feelgood.


'Censorship V3.1' (Arizona Legal Studies Discussion Paper No. 12-28) by Derek Bambauer comments that
Internet censorship has evolved. In Version 1.0, censorship was impossible; in Version 2.0, it was a characteristic of repressive regimes; and in Version 3.0, it spread to democracies who desired to use technology to restrain unwanted information. Its latest iteration, Version 3.1, involves near-ubiquitous censorship by democratic and authoritarian countries alike. 
This Article argues that the new censorship model involves four changes: a shift in implementation to private parties; a hybrid approach mixing promotion of favored viewpoints with suppression of disfavored ones; a blend of formal mandates with informal pressures; and a framing of censorship using uncontroversial labels. It suggests a set of responses to censorship that cabin its abuses and push it towards more legitimate methods: focusing on governmental restrictions, insisting on labeling censorship as such, supporting distributed Internet governance, demanding a default right of access to information, and addressing corporate involvement.

01 October 2012

Patent Abolitionism

'The Case Against Patents' (Federal Reserve Bank of St. Louis Working Paper 2012-035A) by Michele Boldrin and David Levine argues [PDF] that the US should abandon the patent system.

The authors comment that
The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity, unless the latter is identified with the number of patents awarded – which, as evidence shows, has no correlation with measured productivity. This is at the root of the “patent puzzle”: in spite of the enormeous increase in the number of patents and in the strength of their legal protection we have neither seen a dramatic acceleration in the rate of technological progress nor a major increase in the levels of R&D expenditure – in addition to the discussion in this paper, see Lerner [2009] and literature therein. As we shall see, there is strong evidence, instead, that patents have many negative consequences. Both of these observations, the evidence in support of which has grown steadily over time, are consistent with theories of innovation that emphasize competition and first-mover advantage as the main drivers of innovation and directly contradict “Schumpeterian” theories postulating that government granted monopolies are crucial in order to provide incentives for innovation. The differing predictive and explanatory powers of the two alternative classes of models persist when attention is shifted to the historical evidence on the life-cycle of industries. The initial eruption of small and large innovations leading to the creation of a new industry – from chemicals to cars, from radio and TV to personal computers and investment banking – is seldom, if ever, born out of patent protection and is, instead, the fruits of highly competitive-cooperative environments. It is only after the initial stages of explosive innovation and rampant growth end that mature industries turn toward the legal protection of patents, usually because their internal grow potential diminishes and the industry structure become concentrated. 
A closer look at the historical and international evidence suggests that while weak patent systems may mildly increase innovation with limited side-effects, strong patent systems retard innovation with many negative side-effects. Both theoretically and empirically, the political economy of government operated patent systems indicates that weak legislation will generally evolve into a strong protection and that the political demand for stronger patent protection comes from old and stagnant industries and firms, not from new and innovative ones. Hence the best solution is to abolish patents entirely through strong constitutional measures and to find other legislative instruments, less open to lobbying and rent-seeking, to foster innovation whenever there is clear evidence that laissez-faire under-supplies it.
They conclude -
In 1958 the distinguished economist Fritz Machlup in a report to Congress famously said
If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it.
One might imagine that if it would be irresponsible to recommend abolishing it, it would be even more irresponsible to further extend it. Moreover, one might hope that if it is indeed worth preserving such a large government intrusion into private activity that that during the intervening six decades evidence would emerge that patents do indeed serve the desired purpose of encouraging innovation. Sadly the story of the past six decades is the opposite. In new industries such as biotechnology and software where innovation was thriving in the absence of patents – patents have been introduced. Given this continued extension has there been a substantial increase in innovation in recent years? On the contary, it is apparent that the recent explosion of patents in the U.S., the E.U. and Japan, has not brought about anything comparable in terms of useful innovations and aggregate productivity. 
The software industry is an important case in point. In a dramatic example of judge-made law, in the early 1990s sofware patents became possible for the first time. Bessen and Meurer in a large body of empirical work studied the consequences of this unnatural experiment, culminating their [2009] book entitled Patent Failure the title of which summarizes how effective software patents have been for promoting the common good. With six decades of further study since Machlup’s report failing to find evidence that patents do promote the common good, it is surely time to reconsider his recommendation that it would be irresponsible to abolish the patent system. On the contrary: a system that at one time served to limit the power of royalty to reward favored individuals with monopolies has become with the passage of time a system that serves primarily to encourage failing monopolists to inhibit competition by blocking innovation. 
Abolishing patents may seem “pie-in-the-sky” and there are certainly many interim measures that can be taken to mitigate the damage: properly interpreting obviousness, requiring genuine disclosure of working methods and an independent invention defense against patent infringement are useful and – among economists – relatively uncontroversial measures. But why use a band-aid to staunch a major wound? Economists fought for decades – and ultimately with great success – to abolish trade restrictions. It will not escape the careful reader that patents are very much akin to trade restrictions as they prevent the free entry of competitors in national markets, thereby reducing the growth of productive capacity and slowing down economic growth. The same way that trade restrictions were progressively reduced until reaching (almost complete) abolition, a similar (albeit, hopefully less slow) approach should be adopted to “get rid” of patents. Moreover the nature of patents as time-limited makes it relatively easy to phase them out by phasing in ever shorter patent durations. This conservative approach has also the advantage that if reducing patent terms indeed has a catastrophic effect on innovation the process can easily be reversed. 
There are of course many transitional issues to be worked out. This is particularly the case with respect to pharmaceutical products where patents are only one piece of a complicated regulatory jungle including the approval process and the market exclusivity protections all of which would need to be adjusted as patents are phased out. Because policy proposals are better digested and metabolized when served in the form of small pills, here is our list of small reforms that could be easily implemented. 
(1) Stop the rising tide that, since the early 1980s, is both extending the set of “things” that can be patented and shifting the legal and judicial balance more and more in favor of patent’s holders. 
(2) Because competition fosters productivity growth, anti-trust and competition policies should be seen as a key tool to foster innovation. This is of particular relevance for high tech sectors, from software to bioengineering, to medical products and pharmaceuticals. 
(3) Free trade is a key part of competition policies hence the role that WTO-WIPO-TRIPS play should be redefined to move away from the current neo-mercantilist approach toward free trade in goods and ideas. The aim here should be that of stopping the policy of exporting our intellectual policy laws towards other countries while adopting a policy of exporting free trade and competition in innovation. This seems an urgent goal because, within a couple of decades, the “balance of trade in ideas” between US+EU and Asia may easily reverse. At that point the temptation to engage in “mercantilism of ideas” may well affect the now developing Asian countries, leading to a general increase in IP protection worldwide. 
(4) Cross industry variation in the importance of patents suggests we may want to start tailoring patent’s length and breadth to different sectorial needs. Substantial empirical work needs to be done to implement this properly, even if there already exists a vast legal literature pointing in this direction. 
(5) Reversing the burden of proof: patents should be allowed only when monopoly power is justified by evidence about fixed costs and actual lack of appropriability. The operational model should be that of “regulated utilities”: patents to be awarded only when strictly needed on economic grounds. This requires reforming the USPO, which is urgently needed in any case. 
(6) Prizes and competition. An interesting approach is that of operating to change the role that the NSF and the NIH play in fostering innovation. The basic goal, in this case, is that of reversing the principle according to which federally financed investigation can lead to private patents. As a first step we would advocating going back to the old rule according to which the results of federally subsidized research cannot lead to the creation of new private monopolies but should be available to all market participants. This reform would be particularly useful for the pharmaceutical industry. 
(7) With regards to the latter, we advocate reforming pharmaceutical regulation to either treat stage II and III clinical trials as public goods (to be financed by NIH on a competitive basis) or by allowing the commercialization (at regulated prices equal to the economic costs) of drugs that satisfy the FDA requirements for safety even if they do not yet satisfy the current, over-demanding, requisites for proving efficacy. It is ensuring the efficacy—not the safety—of drugs that is most expensive, time- consuming and difficult. All the usual mechanisms of ensuring the safety of drugs would remain firmly in place. While pharmaceutical companies would be requested to sell new drugs at “economic cost” until efficacy is proved, they could start selling at market prices after that. In this way, companies would face strong incentives to conduct or fund appropriate efficacy studies where they deem the potential market for such drugs to be large enough to bear the additional costs. At the same time this “progressive” approval  system would give cures for rare diseases the fighting chance they currently do not have. This solution would substantially reduce the risks and cost of developing new drugs. 
(8) If this progressive approval approach works for rare diseases, there is no reason is should not be adopted across the board. The current system favors a small number of blockbuster drugs that can be sold to millions of patients. The coming revolution in medicine will rely on carefully targeting hundreds or even thousands of drugs to the correct patients. But lawmakers must first usher in a new system that makes developing these precision treatments possible. The regulation reform we are suggesting would be a first important step to achieve such goal. 
The aim of policy, in general, should be that of slowly but surely decreasing the strength of intellectual property interventions but the final goal cannot be anything short of abolition. Once again, if at the times of Machlup one could still nurture doubts and wonder if the system could not be reformed in a credible and stable form, in 2012 one must ask: is not six decades of failure enough time? Is it not time to take seriously the idea of patent abolition and begin the discussion of these transitional issues?

Facing Justice

The preceding post commented on questions of hatred, trolling, emulation and responsibility. It is thus interesting to read that "Facebook is refusing a Victoria Police request to remove sites inciting hatred and violence in response to the death of Jill Meagher".

SBS reports that
Social media giant Facebook is refusing to shut down sites inciting hatred and violence against the man charged with the murder of Melbourne woman Jill Meagher. 
Victoria Police has asked Facebook to cancel about six sites but Deputy Commissioner Tim Cartwright says the social media network operator has declined. 
"(It's) pretty disappointing, some of those sites are inciting hatred and really quite disgusting in the sorts of messages they're portraying," Mr Cartwright told reporters on Monday. 
"The fact is a man's been arrested, we have a good, fair legal process in this state, we need to let it run the course." Mr Cartwright said some of the comments posted were "pretty vile", and there was a risk posting such material in the public domain could affect the trial of the accused. "At the very least they're trying to incite hatred and violence." … 
 A number of hate pages directed at the suspect have also been set up, with one attracting 44,000 likes. …
Victoria Police have ... issued a call for calm, asking people to refrain from posting "inappropriate comments that might jeopardise a successful prosecution". 
Chief Commissioner Ken Lay said police were working through their options following Facebook's refusal to remove the sites. "It is disappointing, and when you see the hatred that's incited by some of these sites, it is very much the antithesis of what we saw yesterday with 30,000 people taking to the streets saying 'let's try and make this a safer and fairer community'," he told Fairfax Radio on Monday.
"We've all got a social responsibility and Facebook is part of our community, and I would've thought it would only have been reasonable."
Facebook does not appear to explained why it has not suppressed the pages. It is capable of turning those pages off: the corporation has the technical ability and the authorisation to do so under its terms & conditions. An apparent decision not to "play nice" with the Police is unwise; it's the sort of corporate self-involvement or indifference that encourages greater regulation.

In a media statement on Friday the Police commented that
Victoria Police has been overwhelmed by the enormity of the public support for this investigation expressed through social media. 
Whilst the widespread willingness to assist has been most welcome, I must now ask that members of the social media community refrain from posting inappropriate comments that might jeopardise a successful prosecution. 
Legislation dictates that nothing should be published that might prejudice the trial of an accused after they have been arrested or charged. That point has now been reached and as Jill's husband rightly pointed out this morning, restraint must be exercised so that the judicial process can run its course.

Toxic tonsils

In a liberal democratic state voters get the politicians that they ask for. On occasion those leaders are the ones that they deserve, rather than the ones that they need. They are deserved because voters have failed to exercise responsibility in condemning, shunning or otherwise indicating their disquiet about statements that are false, simplistic or foster hatred. As a society we cannot credibly condemn online trolling - speech that aims to hurt, vilify, offend - while remaining silent about expressions that denigrate groups of Australians on the basis of ethno-religious affiliation, that endorse ongoing civil disability for gay Australians or that signal the vilification of politicians is quite acceptable.

Australian media figure Alan Jones  - unsuccessful political candidate, owner of a set of 'golden tonsils', strident critic of media regulation - has now clumsily resiled from his claim that the Prime Minister’s father died of shame, a shame attributable to what Mr Jones appears to regard as repeated and egregious lies by Ms Gillard. His reported defence is that his claim was “black parody”, that it was made at "a private function" and that he had simply been repeating what he had heard at a lunch.

That claim was made at a dinner of the University of Sydney student Liberal Club, where Mr Jones was an honoured guest. Many of the listeners at that dinner will go on to become members of Australia’s elite: barristers, company directors, judges, academics, corporate analysts, members of parliament. It is disappointing that the Club has not disavowed the statement by Mr Jones, rather than tweeting approval with the words "Brilliant speech by Alan Jones last night. Its no wonder he's the nation's most influential broadcaster!". It is disappointing that its members - and the politicians in attendance - did not signal their contempt by politely walking out of the event or turning their backs on the speaker. (We presumably cannot expect the decorous young ladies and gentlemen to voice their disquiet by throwing their bread rolls at the podium or dousing the speaker in chocolate mousse.)

The Jones claim is disquieting because it is outside acceptable public discourse. The families of politicians – and of judges, senior officials and magnates – have traditionally been out of bounds. Those people haven’t chosen positions of power and may lack much scope to respond. They should be left alone. If we allow vilifiers to paint a target on their foreheads some aspiring politicians will choose not to expose themselves or their families in a shooting gallery. We will all be worse off from that.

The claim – and the implicit endorsement by members of the Club – is disquieting because it signals to trolls that anything goes. It signals that causing pain will be greeted with applause rather than a cold shower of condemnation. It also signals that making an outrageous statement to encourage attention (even notoriety and fear) is acceptable.

We could of course declare open season on anyone, even high profile journalists such as Mr Jones whose life has been marked by controversy and on occasion scarred by innuendo, highlighted in for example Jonestown: The Power and The Myth of Alan Jones by Chris Masters (Sydney: Allen & Unwin 2006) and Cash For Comment: The Seduction of Journo Culture (Sydney: Pluto Press Australia 2000) by Rob Johnson.

We do not need to declare open season. We should resist what appears to be the message from Mr Jones that anything is acceptable if you have a microphone and few inhibitions about being hateful. A feature of populist discourse over at least fifty years is the claim that Australian judges are unelected and unrepresentative legislators. The willingness of politicians and voters to embrace shockjocks such as Mr Jones [PDF] means that those figures serve as unelected legislators. They should behave responsibly if they wish to be regarded as more than entertainers. They should thus not expect to justify expressions of hatred by claiming that they are the victims of "widespread efforts by the Julia Gillard Government and Julia Gillard herself to silence or punish anyone who dares to articulate one political certainty - that this may be the worst and least trustworthy government in Australian history". They similarly should not disregard the law.

We should be wary of members of a fourth estate who channel hatred and whose view of ethics is illustrated by involvement in the ‘cash for comments’ affair (ie money secretly paid to influence editorial opinion) or in condemnation by Australian courts for disregard of court orders. We should be wary of echoes of Jones' misogyny - claims that "women are wrecking the joint" - evident in for example Larry Pickering's gibe that "Alan Jones’ suggestion of taking this excuse for a woman out to sea in a boat, putting her in a sack with a few Besser blocks and dumping her overboard, is starting to look an appealing solution".

Other than morbid curiosity there is no reason for the Australian public to know whether Mr Gillard died happily or otherwise, immensely proud of being the father of the first female prime minister or not. The Gillards’ privacy should be respected. We do not need to know whether the Jones family is proud of their boy or saddened by his venom. In a civil society we do not need to know and need not speculate. We should however condemn Mr Jones for his claim. It should not be laughed off as ‘just Alan being Alan’, because that implies a double standard for people who have ready access to a microphone and insufficient inhibitions about causing pain.

If you are silent about Mr Jones, and unfussed about his reception by elite students, you cannot conscientiously condemn the nasty teenagers who gain pleasure from lighting flamewars in online fora or the disturbed misogynists and homophobes who recurrently appear in TheConversation and Whirlpool (aka Whingepool).

The ‘I heard it at lunch’ excuse offered by Mr Jones is not one that is recognized in Australian law and has not, for example, been used successfully in defamation law. ‘Black parody’ may well be permissible under the implied freedom of political communication recognized by the High Court as a foundation of liberal democracy. It is unlikely however that the Court is going to be enthusiastic about an ‘anything goes and anyone is a target’ philosophy. It is also unlikely to encourage egregiously offensive letters, such as those sent by Sheik Haron to families mourning the death of members of the Australian Defence Forces. (Private hatespeech cannot persuasively claim the protection of political communication that is voiced to the world at large.)

The law welcomes the robust criticism and difference that is both inevitable and desirable in a liberal democratic state. As an indication of social values it should not, however, dignify hatred. We do not need to hear that Mr Abbott, Mr Turnbull, Ms Gillard, Mr Brown, Mr Rudd or even Mr Jones should be placed in a sack for dumping in the ocean like an unwanted cat. We do not need the denigration of gay people - and of their families - implicit in recent statements by Jim Wallace and Cory Bernardi.

Malicious claims by Mr Jones about family life are not needed for a vibrant democracy. What is needed is a loud condemnation by society of expressions of hatred, misogyny and hurt. If we are silent we’ll get what we deserve.