Shrilly

The Business Software Alliance (BSA) media release about its annual report on 'software piracy' claims that

Well over half the world’s personal computer users - 57 percent - admit they acquire pirated software, the Business Software Alliance reported today in the ninth-annual BSA Global Software Piracy Study. Some users say they pirate all or most of the time, according to the study. Others say they do it occasionally or rarely. The net effect fueled a global software piracy rate of 42 percent last year.

The commercial value of all this pirated software climbed from $58.8 billion in 2010 to $63.4 billion in 2011, a new record, propelled by PC shipments to emerging economies where piracy rates are highest.

“If 57 percent of consumers admitted they shoplift, authorities would react by increasing police patrols and penalties. Software piracy demands a similarly forceful response - concerted public education and vigorous law enforcement,” said BSA President and CEO Robert Holleyman.

Supposedly the "value of PC software theft" in Australia reached $793 million in 2011 and 23% of "new software installed on Australian personal computers was pirated".

The BSA promotes several 'key findings'-

• There is strong global support for IP rights and protections in principle, but a troubling lack of incentive for pirates to change their behavior in practice. Just 20 percent of frequent pirates in mature markets - and 15 percent in emerging markets - say the risk of getting caught is a reason not to do it.
• The most frequent software pirates are disproportionately young and male - and they are more than twice as likely to live in an emerging economy as they are to live in a mature one (38 percent to 15 percent).
• The most frequent software pirates also are the most voracious software users. They report installing 55 percent more software on their computers than do non-pirates. This gives them an outsized impact on the global piracy rate.
• Business decision makers admit to pirating software more frequently than other users - and they are more than twice as likely as others to say they buy software for one computer and then install it on additional machines in their offices.
• By its sheer scale, China has the most troubling piracy problem. China’s illegal software market was worth nearly $9 billion in 2011 versus a legal market of less than $3 billion, making its piracy rate 77 percent. Moreover, buyers in China spend just $8.89 per PC on legal software, less than a quarter of the amount buyers spend in other BRIC markets.

I'm pleased of course that there aren't hordes of female nonegarians in Bangladesh or Botswana busily engaging in "piracy" (and thence presumably graduating to illegal arms dealing, dope peddling, terrorism and other nastiness).

And of course -

IP theft is a global economic drain, stifling not only IT innovation, but job creation across all sectors of the economy ... Governments, especially in emerging markets where most of the theft is taking place, must take steps to modernize their IP laws and expand enforcement efforts to ensure that those who pirate software face real consequences.

HIV and patents

'An Issue of Life or Death' (UC Davis Legal Studies Research Paper Series No 297, 2012) by Madhavi Sunder comments that

Not too long ago, an HIV-positive diagnosis was tantamount to a death sentence — for people in the East and the West, in the South and the North. The drug companies that perfected the antiretroviral therapies invested princely sums to find these miracle cures. To justify their investment, they rely on the promise of a patent — the twenty-year exclusive right to make, use, and sell an invention that is novel, non-obvious, and useful. The patent allows the drug company to charge high sums for the medicine, and thereby recoup its enormous investments in scientists and drug trials, while also turning a profit for shareholders and investing in research toward future breakthrough drugs. Thus patents have saved countless lives, including Thembisa’s thus far. But this structure has its limits. Indeed, the evidence is mounting that in crucial ways patents fail to promote the health of people in the developing world, and in some cases in the developed world as well.

Sunder concludes -

Our theories of innovation and creativity matter. Our two-dimensional theory of intellectual-property-as-incentives has, in just several decades’ time, come to influence the way many scientists and artists alike engage the world. Standing in sharp relief from the public commitment and meaningful work of Salk sixty years ago, today many do not think twice about the claims from Big Pharma that they will not innovate at all, or worse still, that they will not share their drugs in markets like Thailand that issue compulsory licenses. We need to probe these incentive arguments on their own terms. In fact, the evidence shows that patents offer no incentive for developing drugs for neglected diseases that predominantly afflict the poor. Additionally, compulsory licenses in developing countries do little harm to innovation, because drug companies do not sell to those markets in the first place. But the problem lies much deeper than this. The legal philosopher Seana Shiffrin condemns a legal system that condones a situation where “talented people ransom their talents, withholding their creative products in order to demand greater compensation.” Shiffrin asks whether a legal system that acquiesces to such immoral demands is not itself unjust.

A one-size-fits-all patent system for drugs in the developing world is unjust on additional grounds, beyond incentives. Patents that impede access to the poor thwart both local democracy and human development. Nations must have the freedom to democratically construct patent policies to meet their humanitarian needs. For centuries countries had this freedom — nations from Germany to Switzerland took advantage of their freedom to ignore patents and copy freely knowledge that came from other parts of the globe. Indeed, the self-determination to construct one’s own patent law reflects more than a simple utilitarian calculus to promote indigenous innovation. Patent policy affects the ability of a country to stand on its own two feet, independent of foreign knowledge and industry.

Economists call the millions of people who need a drug but cannot afford it “dead weight loss.” But the millions who die needlessly because of the patent system — a number that some scholars calculate as nine million in the developing world annually — are more than an inefficiency in the system. This loss of human lives fundamentally thwarts human development at the most basic level. Furthermore, lack of access to essential medicines is patently unjust because it is preventable. Wholly unlike physical property, which will naturally lose its value if overrun by large numbers, the unique property of knowledge is that its value is not diminished by greater use — far from it, the knowledge value only grows as it is used by more people, in additional, different ways. As Thomas Jefferson wrote so eloquently centuries ago, “He who receives an idea from me, receives instruction himself without lessening mine, as he who lights his taper at mine, receives light without darkening me.” We must both adopt alternative mechanisms for developing and distributing medicines to the poor (including prizes), and fully support the use of compulsory licenses by developing countries to treat their sick poor. Patent law cannot draw the line at rectifying market failure. Our law must contend with moral failure as well.

Autos

From an item by Peter Ling on 'sex and the automobile in 39(11) History Today (2012) -

By combining mobility and privacy, the automobile offered young Americans in the 1920s a 'getaway' vehicle from parental supervision. Consequently, students of American courtship attributed the rise of dating to the automobile's arrival. Dr Evelyn Duvall in a 1956 textbook for teenagers, for instance, declared simply that the car had changed courtship.

To understand the automobile's contribution to this change, however, one should first clarify the nature of earlier courtship practices. The convention of calling was not universal practice in late nineteenth-century America. It was a bourgeois custom based on the concerns and capabilities of the middle classes. As a courtship ritual, calling involved three of the pillars of bourgeois life: the family, respectability, and in particular, privacy. The focal point of calling was gaining admittance into the private family sphere of the home which was the central expression of bourgeois status. Although privacy itself had only become a realistic possibility in the eighteenth century, thereafter it had rapidly established itself as a necessity for the affluent and an aspiration for the poor. A badge of respectability, privacy was profoundly important to the nineteenth-century bourgeois family whose individual members each pined for rooms of their own. Only affluence afforded such spaciousness and so the separate parlour in which callers applied for admission into the bosom of the family was itself a status symbol. As guardians of the home, women were the chief arbiters of who could call and who would never be invited. Daughters could invite male suitors to call but there remained a parental veto on who would be received. In this way, family honour and essential privacy could be preserved. However, parental oversight always threatened to infringe the maturing offspring's right to privacy. To uphold their own notions of honour and ethics, Peter Gay points out, parents went to extraordinary lengths. They would 'open their children's letters, oversee their reading, chaperone their visitors, (even) inspect their underwear'. To the dismay of the younger generation, bourgeois parents failed to respect the principle of privacy they preached.

For the mass of working-class Americans, such privacy was very remote from the daily reality of overcrowding. Cramped lodging houses made the social niceties of 'calling' ludicrously impractical. Of course, a large proportion of the American working class was either immigrant or the children of immigrants and so tried to continue in the New World their traditional practices of chaperonage and female seclusion. However, as social workers like Jane Addams noted, the need for everyone to earn money in impoverished working-class households made such customs hard to maintain, while crowded living conditions, simultaneously prevented the adoption of bourgeois habits. The working classes consequently pioneered dating as an expedient born of the opportunities offered and the comforts denied to them. Forced out onto the streets, Addams warned, working-class youth was highly susceptible to the enticements of commercialised entertainment.

Phone privileges

In Rich v Scaife [2012] VSCA 92 the Victorian Court of Appeal has found that the withdrawal of telephone privileges from prisoner Hugo Rich was contrary to law.

 Rich was prevented from calling his wife on a designated number after he allegedly used a diverter to call another person.

The Court considered whether -

• permission to speak by telephone from the Metropolitan Remand Centre to a nominated person on a designated telephone number is a ‘privilege’ within the meaning of s 48 of the Corrections Act 1986 (Vic) 
• withdrawal of permission to speak to the nominated person on the designated telephone number amounted to ‘withdrawal’ of privilege within the meaning of s 50 or s 54A of the Corrections Act
• use of a telephone diverter to speak to someone other than the nominated person amounts to the prison offence of acting contrary to good order, management or security of prison within the meaning of Reg 44(1)(o) of the Corrections Regulations 1998 
• a prison officer is empowered to withdraw privilege otherwise than in accordance with s 50 or 54A of the Act.

The Court found that Rich's alleged conduct amounted to a prison offence and should have been investigated under Corrections Act 1986 (Vic) s 50 before a decision to withdraw his call privileges could be made.

The Court stated that -

The appeal has taken an inordinate time to come to hearing. Principally, that is due to the fact that the appellant is self-represented and is serving a lengthy sentence of imprisonment. He does not have the capacity to prosecute the appeal with the diligence ordinarily expected of litigants. But there are also indications that he did not receive the level of co-operation from prison authorities that one might have hoped. Ultimately, the matter was listed on 9 March 2012 for the appellant to show cause why the appeal should not be dismissed for want of prosecution. After hearing argument that day, the court made directions to enable the appellant to obtain access to legal resources which he considered were necessary in order to prepare the appeal for hearing. Then, when the matter returned to court a week later, the court made orders that the matter be fixed for hearing to be heard as a matter of priority on 4 May 2012, with the appellant to file a written argument by 16 April 2012 and the respondent to file his written response by 16 April 2012.

Narco

The Australian Crime Commission (now badged with the tagline "Unite The Fight Against Nationally Significant Crime") has released its Illicit Drug Data Report 2010-11, promoted as

recognised as one of the most valuable tools for law enforcement agencies, policy and decision makers, research bodies and other stakeholders in developing strategies to combat the threat posed by illicit drugs. It provides a statistical overview of illicit drug arrests and seizures as well as profiling the current situation, national impact and the emerging trends and threats of illicit drugs in Australia. ... This is the only report of its type in Australia and provides an important evidence base to assist decision-makers in developing strategies to combat the threat posed by illicit drugs.

The report - fodder for journalists and criminology students - indicates that 9.3 tonnes of illicit drugs were seized nationally in 2010–11 (a 19% increase on the preceding year) and that the number of national illicit drug seizures also increased to 69,595 in 2010–11 (the highest reported in the last decade). There were 84 738 illicit drug related arrests, the second highest reported in the last decade.

The ACC claims that -

• National cannabis arrests have accounted for over two-thirds of all drug related arrests in the last decade. Cocaine related arrests have accounted for less than 1.5% of all illicit drug related arrests in the last decade. The number of ATS (excluding MDMA) detections at the Australian border increased by 60% in 2010–11 and is the highest recorded in the last decade. 
• Cannabis remains the dominant illicit drug in Australia in terms of arrests, seizures and use. Cannabis and steroids both reported the highest number of arrests in the last decade. 
• In 2010–11, Victoria continued to report the highest proportion of ATS and heroin and other opiod related arrests. In South Australia and the Northern Territory, over 90% of drug arrests were related to cannabis. In the Australian Capital Territory, 4% of all illicit drug arrests were related to cocaine, the highest proportion reported by any state or territory in 2010–11. In Tasmania, 23% of all illicit drug arrests were related to ‘other and unknown’, the highest proportion reported by any state or territory in 2010–11. 
• Profiling of heroin seizures at the Australian border indicate that South-East Asia accounted for the greatest proportion of bulk weight analysed, increasing from 48.2% in 2009 to 93.3% in 2010. 
• The weight of national heroin and other opioids seizures increased by 428% in 2010–11 and is the highest in the last decade. The weight of national cocaine seizures increased by 67.7% in 2010–11 and is the third highest recorded in the last decade. 
• In 2010–11, a record 703 clandestine laboratories were detected in Australia, with Queensland continuing to report the highest number of detections.

Suppression

SSRN has noted 'Open Justice, the Media and Identifying Children Involved in Criminal Proceedings', an article by Sharon Rodrick from 15 Media and Arts Law Review (2010) 409 -

 The purpose of this article is to formulate an appropriate response to the issue of child identification in criminal contexts, in light of the dialogue that is taking place regarding the adoption of a nationally consistent approach. In the first part of this article, I explore the policy considerations for and against identifying child victims and offenders, and conclude that the arguments in favour of suppressing a child’s identity generally outweigh the arguments in favour of publishing a child’s identity. In the second part of the article, I critically examine the options for a national standard.I do so by critiquing the approaches currently taken in the Northern Territory, Victoria and New South Wales, being representative of the most disparate range of alternatives. 

SSRN has also released Moira Paterson's 2010 'Freedom of Information: Taking Account of the Circumstances of Individual Applicants' -

An important feature of Freedom of Information (FOI) legislation is that it provides universal rights of access. Individuals are able to request access to documents as of right and cannot be required to justify or provide reasons for seeking access to documents and they are not subject to any restrictions on what they can do with any documents provided to them. It follows therefore that it is generally inappropriate to consider an applicant’s identity or motives in making access decisions. However, there are a number of circumstances where an applicant’s identity or motives should logically make a difference as to whether they should be granted access. This article is concerned with the extent to which the circumstances of individual applicants can and should be taken into account in the operation of the UK FOI legislation, and draws on Australian case law to suggest a possible alternative to the current approach taken in the United Kingdom.

Liability

'First Amendment Protection for Search Engine Search Results' by Eugene Volokh & Donald Falk is a White Paper commissioned by Google. The authors comment that -

Once, the leading sources to which people turned for useful information were newspapers, guidebooks, and encyclopedias. Today, these sources also include search engine results, which people use (along with other sources) to learn about news, local institutions, products, services, and many other matters. Then and now, the First Amendment has protected all these forms of speech from government attempts to regulate what they present or how they present it. And this First Amendment protection has applied even when the regulations were motivated by a concern about what some people see as “fairness.” 

Google, Microsoft’s Bing, Yahoo! Search, and other search engines are speakers. First, they sometimes convey information that the search engine company has itself prepared or compiled (such as information about places appearing in Google Places). Second, they direct users to material created by others, by referencing the titles of Web pages that the search engines judge to be most responsive to the query, coupled with short excerpts from each page. Such reporting about others’ speech is itself constitutionally protected speech. 

Third, and most valuably, search engines select and sort the results in a way that is aimed at giving users what the search engine companies see as the most helpful and useful information. (That is how each search engine company tries to keep users coming back to it rather than to its competitors.) This selection and sorting is a mix of science and art: It uses sophisticated computerized algorithms, but those algorithms themselves inherently incorporate the search engine company engineers’ judgments about what material users are most likely to find responsive to their queries. 

In this respect, each search engine’s editorial judgment is much like many other familiar editorial judgments made by newspapers, guidebooks, and Web sites. All these speakers must decide: Out of the thousands of possible items that could be included, which to include, and how to arrange those that are included? Such editorial judgments may differ in certain ways: For example, a newspaper also includes the materials that its editors have selected and arranged, while the speech of DrudgeReport.com or a search engine consists almost entirely of the selected and arranged links to others’ material. But the judgments are all, at their core, editorial judgments about what users are likely to find interesting and valuable. And all these exercises of editorial judgment are fully protected by the First Amendment.

Copyright Fixes

'Protecting State Secrets as Intellectual Property: A Strategy for Prosecuting WikiLeaks' by James Freedman in (2012) 48(1) Stanford Journal of International Law 185 argues - in my opinion unpersuasively - for use of copyright law in dealing with Wikileaks.

Freedman comments that

Criminal statutes generally deployed against those who leak classified government documents — such as the Espionage Act of 1917 — are ill-equipped to go after third-party international distribution organizations like WikiLeaks. One potential tool that could be used to prosecute WikiLeaks is copyright law. The use of copyright law in this context is rarely mentioned, and when it is, the approach is largely derided by experts, who decry it as contrary to the purposes of copyright. Using copyright to protect state secrets, however, particularly if done through suit in a foreign court, escapes a number of the impediments to a WikiLeaks prosecution, such as the limited scope of narrowly tailored U.S. criminal statutes or the need to apply U.S. law extraterritorially and extradite defendants. Admittedly, using copyright law for these purposes presents its own set of problems, perhaps most intractable under U.S. law, but still significant in the case of suits brought in a foreign court under foreign law. This Note will explore these difficulties, such as the government works issue, potential fair use or fair dealing defenses, as well as various non-legal obstacles to success, eventually reaching the conclusion that prosecuting WikiLeaks internationally for copyright violations is potentially more viable than any of the methods of criminal prosecution heretofore explored publicly by government attorneys and legal scholars.

He concludes that

Admittedly, there is no easy course through the thicket of domestic and international laws and treaties standing in the way of a United States prosecution of WikiLeaks. The chance for success by pursuing a copyright case abroad, however, is far greater than many commentators have acknowledged. The difficulties are not insurmountable; there is a strong case to be made that the full publication of thousands upon thousands of works of expression was not required to fulfill the organization’s journalistic mission, even if the leaking of general classified information was necessary. And the leeway provided by fair use is not enough to offset the immense difficulties posed by issues of extraterritorial application of U.S. law, potentially inapplicable statutes, the strong protections of the U.S. constitution, and, perhaps most importantly, the limitations and challenges of extradition. As a result of the foregoing analysis, copyright emerges as a method worth considering in the coming months and years, to address an issue that does not appear to be going away any time soon. 

Phillip J. Crowley, former U.S. Assistant Secretary of State for Public Affairs, cast doubt on any WikiLeaks prosecution by the government: “I do not see WikiLeaks as journalism. It is a source of information. That said, it is hard to distinguish what WikiLeaks did from what the New York Times did. That’s why the focus is rightly on Bradley Manning.” He also said that “[t]he Manning prosecution, done right (his pre-trial treatment included), and improved data security are the proper responses to [WikiLeaks].” 

Crowley may well be right that deterring the source of leaks through prosecution of initial leakers, and preventing leaks from occurring in the first place by improving security protocols, are the most effective methods available to protect state secrets going forward. Nevertheless, simultaneously deterring and hindering the operations of organizations, like WikiLeaks, that publish leaked documents may provide an additional benefit. 

Crowley’s statement equating the actions of WikiLeaks to those of the New York Times may hold some force when considering prosecution under the Espionage Act of 1917 or similar criminal statutes in the United States. But under an intellectual property regime, the actions of those two organizations are of a substantially differing nature — WikiLeaks, by publishing all of the documents at issue in their entirety, is capturing the very expression copyright laws seek to protect. Furthermore, the New York Times undoubtedly falls into the category of “the press,” and appears to publish only the facts, choice quotes, and those particular documents necessary to fulfill its journalistic mission. Arguments exist on both sides as to whether WikiLeaks should benefit from the heightened protections afforded to journalists under many national laws. For instance, Crowley admits, “I do not see WikiLeaks as journalism.”

Despite the myriad difficulties presented throughout this Note in relation to the government pursuing legal action against WikiLeaks and similar organizations using intellectual property laws, the option may indeed provide an additional tool for deterrence and punishment of offenders. Whether this course is worth pursuing—normatively or practically — will of course be left up to the political and policy judgments of government actors and the risk-benefit analyses of their advisors.

Recently as of this writing, the Justice Department said its investigation of WikiLeaks is “ongoing.” Whether the investigation will culminate in the extradition and prosecution of WikiLeaks leaders under U.S. law such as the Espionage Act, whether it will result in a criminal prosecution brought by a foreign nation, or whether the U.S. will choose to employ foreign intellectual property laws against the organization, remains uncertain. Perhaps the investigation will merely drag on for some time until it ultimately, and quietly, draws to a close. Regardless, the events at issue have provided an opportunity for us to consider this novel and perhaps impracticable—but nevertheless fascinating—potential use of international intellectual property law.

'Managing Peer-to-Peer Traffic with Digital Fingerprinting and Digital Watermarking' by Ke Steven Wan in (2012) 41(3) Southwestern University Law Review 331 goes back to the future of ECMS, proposing

 the joint use of digital fingerprinting and digital watermarking to solve the long-standing P2P infringement issue, while the graduated response system is becoming popular. The war on P2P is essentially about the control over content rather than revenue. The graduated response system will aggravate the misuse of the notice-and-takedown procedure and strengthen the content industry’s control over content. Digital fingerprinting and digital watermarking, on the other hand, enable conduit ISPs to deter P2P infringement neutrally and should be given more attention. [The] Article proceeds in six parts. 

Part II introduces the three grounds for third-party liability: contributory liability, vicarious liability, and inducement. 

Part III briefly reviews the war on P2P. It discusses the inadequate protection afforded by the Digital Millennium Copyright Act (“DMCA”) and copyright owners’ private attempts to thwart P2P infringement, such as massive lawsuits, DRM, and the graduated response system. It analyzes the drawbacks of the notice-and-takedown procedure and proposes modifications to § 512 of the DMCA. This Part also proposes the “filter-counter notification-notice with a bond” procedure to mitigate the misuse of a § 512 notice. Lawmakers should probably substitute the John Doe litigation for the subpoena power and the policy of terminating repeat infringers. If filters are installed, litigation should only be used against intentional and outrageous infringers such as those circumventing filters and uploading copyrighted works. 

Part IV discusses whether failure to filter should be considered as a factor of inducement. It also analyzes the desirability of imposing a duty to filter. 

Part V explores the cheapest cost avoider test and concludes that online copyright infringement is a joint-care, unilateral accident, where copyright owners and ISPs should cooperate to reduce the monitoring cost. This part also analyzes the costs and benefits of encryption in P2P. This Part proposes that ISPs should be allowed to assert an affirmative defense that they have installed filters to prevent copyright infringement. 

Part VI discusses the possible criticism of the cheapest cost avoider test. 

Part VII reviews the history of formalities, critically examines Professor Lawrence Lessig’s proposal of more formalities and proposes a watermarking regime. To reduce the distortionary effects on subscribers, an ISP can design a pay-per-download plan for subscribers who download watermarked works.

Spooks

Posts in this blog sporadically highlight legal questions about parapsychology. 'From Beyond the Grave: The Legal Regulation of Mediumship' by Steve Greenfield, Guy Osborn Stephanie Roberts in (2012) 8(1) International Journal of Law in Context 97-114, comments that -

In recent years there has been an increased interest in mediumship. This has been part of a broader fascination with paranormal issues that has been fostered by new modes of dissemination and communication. This article focuses upon attempts made by the criminal law to regulate mediums, and, in particular, the disjunction between the ‘genuine medium’ and the ‘vulnerable consumer’. It charts historical approaches of the law and provides a critique of the current legal landscape, including the new regulatory framework under the Unfair Commercial Practice Regulations 2008, and the possibility of an action under the Fraud Act 2006. It concludes that the law has continually struggled to adequately deal with this phenomenon, and that the current regime is likely to prove similarly ineffective given the fundamental conceptual legal problem of proving what may be un-provable.

The authors conclude that -

The notion of what is covered by mediumship has expanded, and there is now a vast range of services on offer. As noted above, this ranges from a one-to-one consultation, through live shows, to a host of television programmes. These last groups, designed purely for entertainment, are the most regulated, primarily by OFCOM, yet it is the one-to-one readings where the consumer is most vulnerable and perhaps most problematic. This practice, of providing one-to-one readings, has been criticised for its lack of objective proof but, in addition, those who seek out such readings are enthused to believe. This is illustrated by the sceptic James Randi, who analysed the tape of a 'successful' reading provided to him by a well-known medium, Maureen Flynn. The client had professed himself happy with the outcome and accuracy of the medium's statements. After his highly critical analysis, Randi (1991, p. 58) noted: 'spectators are seldom able to recall what actually took place or was said to them, and even when correctly informed later will not be swayed in their firmly held convictions, no matter how hard the evidence'. Herein lies the problem: whatever the objective accuracy of the outcome, the consumer may believe it to be true. Interestingly, given this relational nexus, it is unlikely that, even if a right of direct redress for the consumer existed, such an action would be brought – the sitter has already bought in to the idea and would be unlikely to bring an action. 

Given this situation, it is unsurprising that legal regulation of the practice is so fraught with problems. Regulating the provision of services can be done in two distinct ways. In the first, services may only be provided by a trader whose qualifications, and status, is objectively verified. A good example of this would be the CORGI gas registration safety scheme. Second, and far more usual, protective legislation is directed at the quality of the services or products provided. Herein lies the problem with regulating mediums. To accept and derogate powers to a regulatory body is for the state to take a view that the practice exists, despite some psychological evidence to the contrary. Similarly, to address the problem through the quality of the service requires analysis of outcomes. Given the often common belief system enjoyed by reader and sitter, this is problematic. It is suggested that despite the welcome given by sceptics, and the fears of the spiritualist community, little is likely to happen and the impotence of the FMA will continue. Trading Standards Officers with limited resources will have to prioritise work, and seeking to prosecute 'the unknown' is unlikely to be prioritised, especially given the general problems with local government enforceability. If Trading Standards do have limited resources, they may be more inclined to persuade the police and Crown Prosecution Service to bring a prosecution under the Fraud Act rather than the regulations. If the police and CPS are reluctant to do this, given the difficulties of prosecution as discussed above, this may lead to an impasse if the police and CPS prefer Trading Standards to act under the regulations. Neither of these procedures appears to provide an easy solution to the problem of fraudulent mediums, but this situation may be made more difficult by both sides being unwilling to act under either scheme. 

It appears that, at least for now, there is little likelihood of any significant change, and the possibility of a major rise in prosecutions is remote. As we have charted above, the regulation of the area has been attempted via a number of different approaches, none of which has proved satisfactory. The Fraud Act is fraught with difficulties, given that the prosecution have to prove the fraud beyond all reasonable doubt. Even the consumer regulations, whilst potentially more useful for the vulnerable consumer given that the burden of proof is reversed, are problematic, as the likelihood of a consumer actually bringing an action is small, since they have already bought into the idea and believe or want to believe that what the medium is saying is true. What we have is an area that has been subject to much legal regulation, which has proved manifestly ineffective. It seems unlikely that adequate legislation can be framed to deal with what is unknown or unprovable.

Trespass

In Johnson v Buchanan & Anor [2012] VSC 195 the Victorian Supreme Court (Bell J) has refused to reverse a decision of the Victorian Magistrates Court dismissing a charge for a dog attack offence.

The Court found that a man, who placed his arm over his neighbour's fence, had been bitten by his neighbour's dog by reason of an act of trespass which served as an adequate defence for the offence of dog attack.

The judgment indicates that -

Robert Stanley Ellis lived next door to Christopher John Gerald Buchanan in Oak Park. Their properties were separated along the side boundary at the front by a chest-high fence. Mr Buchanan kept a non-dangerous dog in his secure front yard. The dog was too small for its snout or paws to reach the top of that fence. 

One day Mr Ellis was talking to his son in the driveway of his home. He leaned on and allowed his arm partially to protrude over the fence. As the arm went down, it was bitten by the dog, causing Mr Ellis serious injuries. 

Glenn Johnson is an authorised prosecution officer with the Moreland City Council. He charged Mr Buchanan, as the owner of the dog, with a dog attack offence under the Domestic Animals Act 1994 (Vic) s 29(4). That the victim was trespassing is a defence.

The charge was heard in the Magistrates’ Court of Victoria at Broadmeadows. Mr Buchanan admitted owning the dog, the bite to Mr Ellis and the serious injury which it caused. He relied on the defence that the bite occurred because Mr Ellis was trespassing on his premises by allowing his arm partially to protrude over the fence. The magistrate upheld that defence and dismissed the charge. 

In this application for judicial review, Mr Johnson contends the magistrate erred in law on the face of the record by dismissing the charge when there was no or only a technical trespass.

The magistrate noted Simpson v Bannerman [1932] HCA 43; (1932) 47 CLR 378 but dismissed the charge on the ground that the incident occurred because the victim was trespassing on the defendant’s premises and therefore the defence in s 29(9)(b) applied.

I am satisfied also that [Mr] Ellis’s actions at law can constitute a trespass if he intruded or encroached into the property and space occupied by this dog.  

I am satisfied that Mr Ellis did in fact invade the dog’s space, given (a) his testimony that his arm partially went over the fence and, secondly, independently, independent evidence given by Thompson on behalf of the prosecution who conducted his own test in relation to this dog and his evidence about where the dog’s paws and snout could reach or could not reach.  

In those circumstances the defence provided by subsection (9) of section 29 under this particular Act is open to the defence.

The dog was not proved to have a propensity to bite. the magistrate distinguished Simpson on the ground that it was a civil and not a criminal case.

The Supreme Court referred to Rigg v Alietti [1982] WAR 203, Wilkins v Manning 13 WN (NSW) 220 and Trethowan v Capron [1961] VicRp 73; [1961] VR 460. 


Bell J commented that the provisions of Part 3 of the Dangerous Animals Act 1994 (Vic) -

balance the rights of dog (and cat) owners with the rights to personal security and quiet enjoyment of the general community. The private right to own and keep dogs (including guard dogs) is not disturbed but is made subject to provisions relating to the control of dangerous dogs (div 3), menacing dogs (div 3A), restricted breed dogs (div 3B) and the powers and duties of local councils (div 4). Dogs on private property without permission are liable to be seized (s 23(1)). To allow a dog to be at large (s 24(1) and (2)) or in a place prohibited by a local council (s 26(1)) is an offence. So is keeping a dog that is, or allowing one to be, a nuisance (s 32(1)). It is in this regulatory and protective context that the legislation, in that part, has provisions for criminal offences and civil liability in relation to dog attack (s 29). 

Section 29 makes provision for situations in a descending hierarchy of seriousness. By s 29(1) and (2), the person in apparent control or the owner of a dangerous dog which attacks or bites a person is guilty of an offence punishable by imprisonment or heavy fine, unless it is a guard dog guarding non-residential premises. By s 29(3) and (4), where a non-dangerous dog attacks or bites a person causing serious injury, the same persons are guilty of an offence punishable by moderate fine or, by s 29(5) and (6), by lesser fine if the injury is not serious. By s 29(7) and (8), the same persons are guilty of an offence punishable by lesser fine again where the dog rushes or chases any person. 

... s 29(9)(b) creates a defence where ‘the incident occurred because ... a person was trespassing on the premises on which the dog was kept’. The defence is available in respect of all the offences specified in s 29. As the defence applies if the incident occurred ‘because’ of the circumstances specified in s 29(a)-(d), there must be a causal relationship between those circumstances and the attack or other criminalised conduct.

... 29(11) gives the court a power to award compensation for any damage caused by the conduct of the dog where the person is found guilty of an offence. The power is enlivened by a finding of guilt; it is therefore not necessary for the person to be convicted or penalised. The provision does not create a general cause of action to obtain compensation for damage caused by dog attack or confer a power on the court to award compensation in proceedings generally. As the power to award compensation is confined to cases where the person has been found guilty of an offence, it does not apply where the person is found not guilty by reason of the trespassing defence.

Bell J went on to find that -

In my view, the magistrate did not err in law in dismissing the charge against the defendant on the basis of the trespass defence in s 29(9)(b) of the Domestic Animals Act. His Honour did not err in interpreting and applying that provision.

On the unchallenged findings which the magistrate made, the victim allowed his arm to go over the chest-high dividing fence and down into the defendant’s premises when he was leaning on that fence. The victim’s action was casual and inadvertent, but it was conscious and voluntary. The incursion was very minor, but even minor physical incursions into someone else’s property amount to trespass, unless authorised. It was not contended the victim had express or implied permission to do what he did. The incursion was into the defendant’s airspace, but that too is a trespass. The incursion of the victim’s arm into the defendant’s premises did not cause the defendant any damage, but damage is not an element of the tort of negligence. Applying the common law principles which govern the situation, the magistrate did not err in deciding that the victim had trespassed on the defendant’s premises.

Neither did the magistrate err in law in deciding that the victim was bitten because he was trespassing on the premises. The defendant kept the dog in the secure front yard of his home. On the found facts, the dog was too small to reach the top of the dividing fence with its snout or its paws. The defendant was bitten when he allowed his arm to go over and down into the defendant’s premises when he was leaning on the fence. On those facts and on the proper interpretation of the statutory provisions, the magistrate was entitled to find that there existed the necessary causal link between the bite and the trespass and to conclude that the charge must be dismissed because the defence applied.

Voting

From 'The Voting Rights Ratchet: Rowe v. Electoral Commissioner' (University of Queensland TC Beirne School of Law Research Paper No. 12-3)  by Graeme  Orr -

 In Rowe v Electoral Commissioner, the Australian High Court struck down an early cut-off date for voter registration. This commentary situates the decision in the history of the electoral writ and roll closure, and parses the various judgments from an election law perspective. The Court’s decision is not a radical one, but an example of the recent flowering of constitutionalism in electoral law, since the Court recognised an implied universal suffrage in the Australian Constitution. The case represents, like the prisoner voting case of Roach before it, an example of constitutional ratcheting, informed by an underlying conceit that the court is merely protecting against legislative back-sliding, rather than offering a litigational sword to those who want to expand the franchise and political rights.

Orr comments that -

In Westminster tradition, the ability to vote was fundamental to parliamentary democracy, yet simultaneously a privilege regulated by Parliament. While the trend to liberalise the franchise seems, in retrospect, an inexorable tide, significant forces were arrayed on all sides of what the Victorian era knew simply as the “reform” debate. Conservatives saw voting less as a right than a responsibility. It was to be restricted to those responsible for – and given independent status by – landholdings. The democratic instincts of the Chartists held greater sway in Australia, where women won the vote for national elections as early as 1902, 16 years before British suffragettes. Yet Australia was no “paragon of virtue”. The Commonwealth began with a racist franchise, and only enfranchised most Indigenous people in 1962. The tension between voting as a republican ideal and an individual responsibility is neatly captured today in laws compelling both enrolment and attendance at the polls. 

Similar to the United States, the Australian Constitution erects no explicit grant of the franchise. The closest it came to the matter was in s 41, now neutered by narrow interpretation. The original intent appears to have been to leave the definition of the national franchise to Parliament (indeed the 1891 draft left the matter, in hyper-federalist United States style, to the separate States). The great issues of the day were including women and excluding non-white races. Trust in parliamentary sovereignty is reflected in ss 8 and 30, leaving to Parliament the definition of the “qualification of electors”, a power explicitly limited only by a prohibition against plural voting.  Nevertheless, in a series of cases between 1975 and 2006, the High Court crafted a presumption of universal suffrage, out of the general requirement in ss 7 and 24 that Parliament be “directly chosen by the people”. 

The cornerstone of these decisions was McKinlay’s case. In retrospect it seems an inauspicious source: McKinlay and others sought to import United States jurisprudence mandating one-vote, one-value, but were rebuffed 6-1. Barwick CJ scathingly remarked that the Constitution was a site for literalism, not for “resort[ing] to slogans or to political catchcries or to vague and imprecise expressions of political philosophy”. Yet, along the way, McTiernan and Jacobs JJ argued that while “chosen by the people” did not require equal weighting of votes:  "the long established universal adult suffrage may now be recognized as a fact and as a result it is doubtful whether ... anything less than this could be described as a choice by the people".  

This insight was embedded in precedent in the prisoner voting case, Roach v Electoral Commissioner. However, the constitutional presumption of a universal franchise appears limited to adult citizens, and is subject to legislated exceptions that are proportionate or reasonably consistent to representative government.

 He concludes that 'the ratchet is not radical' -

In the 35-year journey from McKinlay to Rowe, it is curious that vote weighting, which was the stormiest electoral issue in the 1970s and 1980s, particularly in the geographically largest States, has now been put to bed by a political consensus in favour of one-vote, one-value. Yet the franchise, a first-order liberal issue largely thought resolved by Edwardian times, has recrudesced to centre stage. The franchise of prisoners and expatriates, and its denial to permanent residents, are all topical matters. More pragmatically, the state of the rolls has moved to centre stage. Over 1.4 million eligible citizens were estimated to be absent from the 2010 rolls. The overwhelming cause was not early closure, but the use of official data revealing address changes to cleanse the rolls, but not to update them. State legislative reforms moving to a system of “automatic enrolment” are to be implemented in New South Wales and Victoria. These States and Queensland will also allow new voters effectively to enrol until polling day by claiming a provisional vote, a vote that is counted once their bona fides are checked. But these reforms remain controversial with federal conservatives. Given the ease with which data can be matched electronically, arguments about processing enrolment forms and timelines born of a paper era seem increasingly arcane. If automatic enrolment is not in place by the next federal election, another court challenge is foreseeable. Could it, or other envelope-expanding claims – say by expatriates to wider voting rights – succeed? 

The majority, in Roach and Rowe, was progressive in its methodology and outcome, but only modestly so. The court is careful to repeat the mantra that it is not its place to judge parliamentary motivations. Hence, even in an area as prone to partisan feather-bedding as electoral law, it shows little signs of moving to a strict scrutiny approach. Nor is the search for “rational justification” a thorough-going one, for the court does not insist that the law be as rationally tailored to constitutional goals as possible. Rather, the majority is identifying values it sees as entrenched by long convention – such as universal suffrage or a grace period for enrolment – and guards them against legislative back-tracking by demanding cogent justifications. So while Heydon J claimed that the logic of Rowe’s position was that “there should be the widest possible participation in elections [with enrolment] right up to the moment when the polling booths closed”, such a claim would be unprecedented. 

The majority’s method, through which constitutional norms are created, but in hindsight, is known in the American idiom as “ratcheting”. The ratchet offends originalists because it works in only one direction, and carries the conceit of history as a story of progress without regress. (In contrast, the past being another country, technologically speaking the originalist position can seem ludicrous when applied to fundamental practicalities such as electoral enrolment). The ratchet is not a radical technique compared to the search for overarching principles in implied rights jurisprudence. It is more shield than sword; those long excluded from the franchise, like permanent residents, cannot employ it to gain inclusion. 

In one respect, Rowe’s case is quite American. The case was argued by pro bono lawyers assembled by Get Up!, a non-partisan, left-wing organisation akin to the United States movement moveon.org, which mobilises sympathisers through on-line petitions and donations. Get Up! also ran a successful Federal Court claim just prior to the 2010 election, to permit online electoral enrolment. Public interest litigation in the law affecting Australian democracy has tended to be ad hoc and dominated by quixotic litigants-in-person, rather than concerted and driven (as in the United States) by groups such as the Brennan Center for Justice. While incremental rather than radical, the ratchet does invite further test cases, and in Get Up! there is now a litigational vehicle to drive that process

Luxe

'Can Louis Vuitton Dance with Hiphone? Rethinking the Idea of Social Justice in Intellectual Property Law' by Haochen Sun in 15 University of Pennsylvania Journal of Law & Social Change (2012) 387-432 reconsiders -

the relationship between social justice and intellectual property through the lens of two conflicting cultural phenomena in China. The first cultural phenomenon, called shanzhai, legitimizes the production of inexpensive and trendy products like the HiPhone. The second phenomenon is the rise of China as the largest luxury market in the world, unleashing an unprecedented increase in the consumer demand for luxury brands such as Louis Vuitton. The shanzhai phenomenon clashes with the IP protection that forms the foundation of the successful luxury market in China. 

By exploring the conflict between these two cultural phenomena, this Article puts forward a new theory of social justice and intellectual property. This theory calls for intellectual property law to be redesigned to support the redistribution of three kinds of resources: benefits from technological development, cultural power, and sources of innovation. The focus on these three redistributive mandates functions to reorient the recent heated debate on social justice and intellectual property toward an inquiry about the redistribution of resources in intellectual property law. 

The Article further considers the substantive and symbolic values of the theory in promoting social justice through intellectual property law. With respect to its substantive value, it shows that this theory has the potential to overcome the limitations of John Rawls’s Difference Principle in dealing with redistributive justice issues within the ambit of intellectual property law. Moreover, this theory is valuable because it sets workable goals for mobilizing social movements to achieve cumulative eradication of injustice through intellectual property law.

Sun concludes that -

the shanzhai phenomenon has signaled the urgent need to organize a civil rights movement in China to combat inequality. In China, public discussion about the cause of massive nation-wide food insecurity became a sensitive political issue subject to speech control. The shanzhai phenomenon, however, has broken through speech surveillance and control by the Chinese government. It has engaged so many people and made such wide use of new social media that the government has been unable to carry out effective measures to censor shanzhai-related speech activities. This success derived from mobilizing people at the grassroots level including university students, migrant workers, and the unemployed. Moreover, the shanzhai phenomenon hugely benefited from the emergence of new social media such as online forums, blogs, and video sharing websites, which have engaged people in discussions about social issues. One commentator insightfully pointed out “the shanzhai characteristics of parody, anarchy and ridicule – all of which arise from the displacements of exile, with an ironic media and against the official declarations of social harmonization.” In many cases, a shanzhai product or activity quickly became very popular shortly after being reported on the Internet. Some copying acts of the shanzhai phenomenon, have violated Chinese IP law, but violating law has become an inevitable means of promoting social justice in China. It signals to the public that “imitation is the sincerest form of rebellion in China.” This symbolic value of the shanzhai phenomenon lies in its power to signal the need for civil disobedience to the economically poor, the politically marginalized, and the culturally weak.

Thus, the shanzhai phenomenon has conveyed Martin Luther King’s “I have a dream” message to the Chinese public. The message calls for the Chinese public to rise up and fight for social justice. The power wielded by the shanzhai phenomenon may have sown the seeds of a groundbreaking civil rights movement, pressuring the government to reform and to consider the interests of the poor more seriously.

In addition to creating new ways to fight for justice, the shanzhai phenomenon also expands the breadth of pro-justice social movements by channeling broader issues that have become problematic in society. First, the shanzhai phenomenon criticizes consumerism that is socially harmful. It presents a radical critique of the prevalence of luxury products among the rich in China by revealing to the public a host of social problems behind it. The corruption underlying the luxury market is very serious. The majority of purchased luxury goods are given between men as gifts in business transactions to create social networks. Often these actions are bribes of governmental officials or officials working in state-owned companies. The shanzhai phenomenon also critiques strong conspicuous consumerism among the rich in China who have not paid due regard to their social responsibilities. Rich Chinese consumers are now famous for their lavish spending habits. Sadly, luxury products are now commonly designed to cater to the needs of conspicuous spending behaviors, with their glamorous brands strongly protected by IP law. Luxury is simply a product packaged and sold by multibillion-dollar global corporations focused on growth, visibility, brand awareness, advertising, and, above all, profit.

By using IP assets and even violating IP law, the shanzhai phenomenon raises the question of why strong IP protection should be provided for a luxury industry that facilitates corruption and conspicuous consumerism, both of which are characteristics of the rich who disregard their social responsibilities. Silent changes have taken place in China. For example, the HiPhone, a typical shanzhai cell phone, has been hailed as “the poor man’s iPhone,” which ostensibly ridicules the high-priced iPhone. An “interesting change of attitudes in youth (in big cities like Shanghai and Beijing)” is reported to be “the diversified meaning of ‘status’; while big brands may embody a ‘status’ in conventional way, shanzhai phones may imply a ‘status’ of rebellion.” Additionally, the shanzhai phenomenon shows the stark landscape of a wide range of inequality problems that have become enormous in Chinese society. The glamour of luxury stores hides these problems, but shanzhai brings them to the forefront of public discourse on social reforms. China underwent a rapid economic reform in the past thirty years, shifting from a state-planned economy to a free market-based system. Its rapid economic growth brought a host of social problems in almost all sectors of society. The Gini coefficient, widely recognized as a yardstick to measure inequality of distribution of wealth, has increased by about 50%, from around thirty to forty-five over the past twenty-five years. A World Bank report bluntly summarizes the situation:

Not everyone has participated in the economic success equally. Income inequality in China has increased significantly since the start of economic reforms, and China is no longer the low-inequality country it was a quarter century ago ... Where China stands out is in the magnitude of the increase in inequality and the pace at which it has occurred. The rise in inequality is the result of both a widening income gap between the cities and the countryside, as well as growing inequality within rural and urban areas.

The shanzhai phenomenon reveals the harsh realities of massive inequality in China. To some extent, it runs directly counter to a strategy that has been long used by the Chinese government, which prioritizes economic growth as the top concern of social development. As the Chinese government has publicized this strategy of economic growth through major media outlets in China, it has indoctrinated people with the ideology of economic growth. Making money to pursue economic well-being has become like a religion for millions of people in China. The growth of the luxury market fits perfectly with this strategy. As people become richer, luxury products present them with the maximum rewards for religiously chasing money. By contrast, the shanzhai phenomenon reveals that the ideology of economic growth has worsened social inequality and does not do justice to the interests of the poor. It informs the public of worsening social ills and calls for the government to reform its main strategy of development.

Although social justice is a value central to humanity and civilization, we live in an unequal society polarized by the unfair distribution of resources. People still live in poverty and even die from the lack of food. Other people, however, are rich enough to shop happily in luxury stores without regard for those who die of hunger. This stark contrast questions whether we are civilized enough to call ourselves human beings or instead lack the ability to sense the pain of our peers.

Forty years ago John Rawls’s groundbreaking book, A Theory of Justice, radically transformed our vision of justice. Yet social inequality has continued to worsen in our society. Individuals who possess great resources have done little to fulfill their social responsibility to curb injustice. When a Danish artist used the legendary Louis Vuitton monograms as part of her artwork to call for global attention to the war in Darfur, Louis Vuitton moved to stop this benign action in the name of protecting its intellectual property.

Confronted with these harsh realities, we must act in concert to fight for justice and equality. In contrast to China’s large and growing luxury market, the shanzhai phenomenon has championed the cause of social justice, embodying a common pursuit for dignity and humanity in civilized society. From this perspective, the shanzhai phenomenon, as one commentator has described, might “translate best as Robin Hood culture meets British satire Little Britain or, to cross a few borders, the Australian political outlaws in The Chaser’s War on Everything meets Tina Fey’s Sarah Palin from the 2008 United States election campaign.” It encourages IP law to be redesigned to support the redistribution of three kinds of resources: benefits from technological development, cultural power, and sources of innovation. 

The goal of promoting the agenda of social justice in our society cannot come to fruition without civil movements powered by shanzhai-type cultural phenomena. A government will not take seriously a politically dormant mass sleeping quietly underneath a dead volcano. Only by exposing the government to an erupting active volcano can citizens force those in power to act for social justice.

Caring

From 'Want to know about gay parenting? Ask the children', a gracious response to the Senate submission by Doctors For The Family regarding gay marriage -

If you believe that monogamy, as well as marriage, is central to children's wellbeing, we wonder why you have not campaigned to make extramarital relationships illegal. Furthermore, if you believe that marriage should be "…the union of a man and a woman to the exclusion of all others, voluntarily entered into for life," we wonder why you have not campaigned to make divorce illegal. 

Although we have different relationships with our parents and with our donors, none of us feel that we would have been happier or had better life outcomes had we had a more traditional 'fatherly' relationship with our donor. We reject the notion that a child requires two parents of opposite sex. 

We cannot guarantee that no mistake will ever be made by same-sex parents, but this guarantee is not presently given for heterosexual married couples, as countless children of these unions will personally attest. We can say that our own experiences have been no worse, and frequently better, than many of our friends who were raised in traditional heterosexual marriages.

If same-sex marriage is made legal, your right to "free speech", your right to believe that it is wrong and should not have been made legal, will not be lost. Your right to any kind of hate speech about same-sex couples will remain as it stands currently in law - illegal.

You talk about freedom - we, too, would like the freedom to live our lives with love and gratitude to our parents, happy with our own sexuality whatever it may be, free from accusations that ourselves or our parents are somehow wrong, immoral or unhealthy - accusations made by people who have never met us and who, despite their strongly and publicly expressed feelings about the issue, have not taken the time or effort to ask us about our experience.

Gay people are presently able to have children, as our existence demonstrates. Any law regarding same-sex marriage will not change that. Our experience, as well as a wealth of statistical evidence, demonstrates that there is no reason why same-sex couples should not adopt children, and they should have the right to do so within a marriage, so that they can have equality with their heterosexual fellow citizens.

We do not deserve to be treated as second-class citizens. We know what it is like to be raised by same-sex parents, and we know what it is like to face prejudice and discrimination as a result of that. If you are interested in all the facts, why not talk to the very people who have lived the experience you claim to be an expert on. We have grown up in the LGBTQI community and we believe being part of this community has made us strong, open-minded, aware, passionate adults.

Every time we write one of these letters or submissions, we are reduced to tears of frustration over the discrimination and lack of understanding demonstrated by bigoted people like you who choose not to see us for who we are. But they are also tears of pride, deep love and gratitude to our parents, who defied you in order to give us the world.

My more acerbic response - 'Doctors for the Family see some Australians as more equal than others' - is here.

George Orwell’s mordant satire of politics and bureaucratic doublespeak famously featured the slogan that “all animals are equal, but some animals are more equal than others”. Watching the brouhaha about the Doctors for the Family submission to the Senate Inquiry into legal recognition of same-sex relationships (aka gay marriage), it’s difficult not to wonder whether all Australians are equal, but people with medical degrees and godfearing straight married people are more equal than others. ...

Buffing

With alleged profile buffing by former Yahoo CEO Thompson in mind I've noted 'The Effect of Linkedin on Deception in Resumes' by Jamie Guillory &  Jeffrey Hancock in 15(3) Cyberpsychology, Behavior, and Social Networking (2012) 135-140. It -

 explores how Linkedin shapes patterns of deception in resumes. The general self-presentation goal to appear favorably to others motivates deception when one's true characteristics are inconsistent with their desired impression. Because Linkedin makes resume claims public, deception patterns should be altered relative to traditional resumes. Participants (n =119) in a between-subjects experiment created resumes in one of three resume settings: a traditional (offline) resume, private Linkedin profiles, or publicly available Linkedin profiles. 

Findings suggest that the public nature of Linkedin resume claims affected the kinds of deception used to create positive impressions, but did not affect the overall frequency of deception. Compared with traditional resumes, Linkedin resumes were less deceptive about the kinds of information that count most to employers, namely an applicant's prior work experience and responsibilities, but more deceptive about interests and hobbies. The results stand in contrast to assumptions that Internet-based communication is more deceptive than traditional formats, and suggests that a framework that considers deception as a resource for self-presentation can account for the findings.

Success and ruination

Following the recent item on Viscopy, the visual arts copyright collective rights administration body, it is interesting to note the media release featuring 'top up' support for the Australian droit de suite regime that is administered by CAL -

Minister Crean also announced that Australia's successful resale royalty scheme, which provides a five per cent payment to artists from the resale of their artwork, will be funded for two more years.

"As a key election commitment of the Australian Government, the resale royalty scheme has already generated over $650,000 in royalties from over 3500 resales of art by more than 390 artists," he said.

"The Australian Government will provide $700,000 over two years for the collection and payment of royalties to visual artists as well as for a post-implementation review of the scheme. As the income from resales increases, it is anticipated the scheme will become self-sustaining.

One commentator - less than enthused by the droit - stated that -

The scheme was premised on a market size and turnover that was, even at the height of the boom, wildly overestimated by a factor of at least 2 or more. Even a fully retrospective and compulsory scheme such as enacted in the UK, would not be self-funding in Australia; the long term market here is simply not large enough.

This government's policies have had a devastating effect on the art market: the resale scheme has undermined confidence resulting in reduced demand and, at the same time the ruling on SMSF (Self-managed super funds) will result in a massive over-supply of indigenous art for resale on to a reduced market. In this situation, the very idea that a scheme premised on levying on the value of art resales ever becoming even vaguely self-funding is ludicrous.

The paradox is that the Australian government has done the resale royalty, at a secondly instrumentation level, as professionally as it could be done and the Act itself reflects the constraints of a constitution that set out very consciously to embody the principles of responsible representative government: therefore, the Australian scheme is a lawful scheme. However, the messy reality is clear proof that resale royalties, at the level of principle, if done lawfully and properly, are bad policy".

An observer might be forgiven for wondering whether the scheme has "had a devastating effect on the art market" and "undermined confidence resulting in reduced demand", given that Australia continues to experience the aftermath of the Global Financial Crisis. The droit may indeed be "bad policy" but the messy reality is that we lack "clear proof". (Collective rights schemes also, of course, take time to bed down.)

The lament that the droit will damage the Australian art market was heard when the scheme was first proposed, while it was being introduced (with a simplification in December last year noted here) and since it was introduced. Presumably the same lament will be made in future.

It would be fascinating to see substantive data that differentiates between the effect of the droit and the impact of the GFC. In practice such data isn't likely to be obtainable, in contrast to anecdotes from dealers (most of whom, like some overseas peers, have been opposed to the scheme from the beginning and prophesied imminent ruination).

In practice the Australian scheme is probably neither as pernicious nor as wonderful as claimed by opponents and proponents.

From the perspective of 2012 I'm reminded of the 2004 IPRIA paper 'Droit De Suite Down Under: Should Australia Introduce a Resale Royalties Scheme for Visual Artists?' [PDF] by Emily Hudson & Sophie Waller that concluded -

Evidence of the effect of introducing resale royalties on the Australian art market is inconclusive. As can be seen from the discussion above, there has been much debate in the literature about the benefits and costs of introducing a resale royalty scheme. As stated in the Myer Report: 

it can probably be concluded that, ‘given the state of the empirical evidence in hand, intelligent, well meaning persons, equally well informed about economic theory, may well disagree about the efficiency of artists’ resale rights.’

The statistics cited in this article show that artists generally have a low income compared with the rest of the workforce. There is also evidence that Indigenous artists often receive less than market value for their works. However, resale royalties will not address either of these issues. A resale right will be in name only for most artists; only a select group of artists, many of whom are deceased, white and male, will ever receive any benefit. This benefit must also be viewed in light of the uncertain effect that resale royalties will have on the art market, and thus on the livelihood of the majority of artists. Although evidence from overseas suggests that resale royalties may cause art sales to move to jurisdictions that do not impose a royalty, it is unclear what effect implementing resale royalties would have on the Australian art market. It may be helpful to undertake a comprehensive empirical study in relation to possible effects of resale royalties on the Australian market. 

Other justifications for the introduction of a resale royalty right in Australia include the ‘unjust enrichment’ of dealers and investors at the expense of artists and the benefit from harmonisation with other laws, particularly if the growth in the market for Indigenous works spreads overseas. However, there are strong countervailing arguments that royalties rarely accrue and only tend to benefit established artists and their heirs, who may already have a handsome income stream from new sales and commissioned works. Resale royalties have not been shown to increase artistic output or the dissemination of works. 

To the extent that it wishes to improve the financial situation of struggling artists, Australia could consider introducing a similar scheme to that in Germany, where, in addition to the payment of a royalty to individual artists, money is paid into a central fund that is used to benefit all artists. The use of targeted funding and support is particularly important for Indigenous artists, whose living conditions and income are at deplorable levels. Exploitation of Indigenous artists should also be addressed directly by the government, for instance through existing trade practices legislation. 

If Australia does pass a droit de suite, it is clear that a central collecting society will be essential to administer the scheme. Funding of such a society will be a crucial question. Analysis of overseas schemes suggests that the collecting society generally deducts an administrative fee out of the royalty collected; an important question in Australia would therefore be the level at which this fee will be set. A final question is whether the collecting society should receive additional government funding to assist with investigation and enforcement measures. If government support is required, an obvious criticism is that money could be better spent directly on artists. 

Whether Australia decides to implement a resale royalty scheme or not, further research and public discussion should occur. The discussion that has resulted from the release of the Resale Royalty Bill and the Discussion Paper is a good start. However, there has been limited empirical research undertaken in regard to resale royalties in Australia, and if a decision is made to introduce resale royalties now, it will be based on speculation rather than solid data as to its possible benefits and costs.

There is still speculation. Unfortunately the national Government is unlikely to fund the research that will provide the authoritative data needed to quell the alarums and huzzahs.

Noteworthy

Excellent video of 'Courts and Democracy - Just another Government Agency?' (Melbourne University Centre for Public Policy Forum Series 2012) by the Hon Marilyn Warren AC, Chief Justice of the Supreme Court of Victoria