Prediction

'Big Data and Due Process: Toward a Framework to Redress Predictive Privacy Harms' by Kate Crawford and Jason Schultz in (2014) 55(1) Boston College Law Review comments

The rise of “big data” analytics in the private sector poses new challenges for privacy advocates. Unlike previous computational models that exploit personally identifiable information (PII) directly, such as behavioral targeting, big data has exploded the definition of PII to make many more sources of data personally identifiable. By analyzing primarily metadata, such as a set of predictive or aggregated findings without displaying or distributing the originating data, big data approaches often operate outside of current privacy protections (Rubinstein 2013; Tene and Polonetsky 2012), effectively marginalizing regulatory schema. Big data presents substantial privacy concerns – risks of bias or discrimination based on the inappropriate generation of personal data – a risk we call “predictive privacy harm.” Predictive analysis and categorization can pose a genuine threat to individuals, especially when it is performed without their knowledge or consent. While not necessarily a harm that falls within the conventional “invasion of privacy” boundaries, such harms still center on an individual’s relationship with data about her. Big data approaches need not rely on having a person’s PII directly: a combination of techniques from social network analysis, interpreting online behaviors and predictive modeling can create a detailed, intimate picture with a high degree of accuracy. Furthermore, harms can still result when such techniques are done poorly, rendering an inaccurate picture that nonetheless is used to impact on a person’s life and livelihood. 

In considering how to respond to evolving big data practices, we began by examining the existing rights that individuals have to see and review records pertaining to them in areas such as health and credit information. But it is clear that these existing systems are inadequate to meet current big data challenges. Fair Information Privacy Practices and other notice-and-choice regimes fail to protect against predictive privacy risks in part because individuals are rarely aware of how their individual data is being used to their detriment, what determinations are being made about them, and because at various points in big data processes, the relationship between predictive privacy harms and originating PII may be complicated by multiple technical processes and the involvement of third parties. Thus, past privacy regulations and rights are ill equipped to face current and future big data challenges. 

We propose a new approach to mitigating predictive privacy harms – that of a right to procedural data due process. In the Anglo-American legal tradition, procedural due process prohibits the government from depriving an individual’s rights to life, liberty, or property without affording her access to certain basic procedural components of the adjudication process – including the rights to review and contest the evidence at issue, the right to appeal any adverse decision, the right to know the allegations presented and be heard on the issues they raise. Procedural due process also serves as an enforcer of separation of powers, prohibiting those who write laws from also adjudicating them. 

While some current privacy regimes offer nominal due process-like mechanisms in relation to closely defined types of data, these rarely include all of the necessary components to guarantee fair outcomes and arguably do not apply to many kinds of big data systems (Terry 2012). A more rigorous framework is needed, particularly given the inherent analytical assumptions and methodological biases built into many big data systems (boyd and Crawford 2012). Building on previous thinking about due process for public administrative computer systems (Steinbock 2005; Citron 2010), we argue that individuals who are privately and often secretly “judged” by big data should have similar rights to those judged by the courts with respect to how their personal data has been used in such adjudications. Using procedural due process principles, we analogize a system of regulation that would provide such rights against private big data actors.

'Transparent Predictions' by Tal Zarsky in (2013) 4 University of Illinois Law Review asks -

Can human behavior be predicted? A broad variety of governmental initiatives are using computerized processes to try. Vast datasets of personal information enhance the ability to engage in these ventures and the appetite to push them forward. Governments have a distinct interest in automated individualized predictions to foresee unlawful actions. Novel technological tools, especially data-mining applications, are making governmental predictions possible. The growing use of predictive practices is generating serious concerns regarding the lack of transparency. Although echoed across the policy, legal, and academic debate, the nature of transparency, in this context, is unclear. Transparency flows from different, even competing, rationales, as well as very different legal and philosophical backgrounds. This Article sets forth a unique and comprehensive conceptual framework for understanding the role transparency must play as a regulatory concept in the crucial and innovative realm of automated predictive modeling.

Part II begins by briefly describing the predictive modeling process while focusing on initiatives carried out in the context of federal income tax collection and law enforcement. It then draws out the process’s fundamental elements, while distinguishing between the role of technology and humans. Recognizing these elements is crucial for understanding the importance and challenges of transparency. Part III moves to address the flow of information the prediction process generates. In doing so, it addresses various strategies to achieve transparency in this process — some addressed by law, while others are ignored. In doing so, the Article introduces a helpful taxonomy that will be relied upon throughout the analysis. It also establishes the need for an overall theoretical analysis and policy blueprint for transparency in prediction. Part IV shifts to a theoretical analysis seeking the sources of calls for transparency. Here, the analysis addresses transparency as a tool to enhance government efficiency, facilitate crowdsourcing, and promote both privacy and autonomy. 

Part V turns to examine counterarguments which call for limiting transparency. It explains how disclosure can undermine government policy and authority, as well as generate problematic stereotypes. After mapping out the justifications and counterclaims, Part VI moves to provide an innovative and unique policy framework for achieving transparency. The Article concludes, in Part VII, by explaining which concerns and risks of the predictive modeling process transparency cannot mitigate, and calling for other regulatory responses.

Marriage Acts

Given current debate about Australian Capital Territory moves to recognise same sex marriage - ie removal of an anomalous civil disability as highlighted here - it is worth recalling the lucid George Williams article 'Can Tasmania Legislate for Same-Sex Marriage?' in (2012) 31(2) University of Tasmania Law Review 117.

Williams comments that

Marriage equality conjures up a range of passionate arguments and strongly held convictions around fairness, equality, community values and religious relief. This article examines the myths around this issue, and examine what might happen if Tasmania enacted a same-sex marriage law, and in particular, the possible challenges to such law in the High Court.

In essence, the national Parliament can override statutes made by the ACT and Northern Territory. The significance of the current Bill in the ACT House of Assembly may accordingly be as a model - and spur - for development of legislation in the states.

Under s 51(xxi) of the Australian Constitution the national parliament has power to make laws with respect to ‘marriage’. There is disagreement about the interpretation of that term, in particularly whether it encompasses the marriage of same-sex couples. The Constitution does not provide a definition of marriage, implicitly because the drafters of the Constitution assumed that marriage was for life - other than in exceptional circumstances - and that it was restricted to heterosexual relationships.

In my dissertation I have noted that Hyde v Hyde & Woodmansee (1866) All ER for example characterised marriage as "the voluntary union for life of one man and one woman, to the exclusion of all others". That characterisation by Lord Penzance in Hyde was explicitly embraced in s 5 of the Marriage Act 1961 (Cth) as amended under as previous Coalition Government in 2004, ie marriage "means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life".

State law regarding marriage is valid except to the extent of inconsistency with national law under the Constitution (s 109), with the High Court determining that inconsistency and finding for the Commonwealth to the extent that the state enactment was inconsistent with that of the Commonwealth. What is the meaning of marriage in the Constitution? One argument has been that 'marriage' has to be construed in terms of its meaning for the drafters of the Constitution, in other words Penzance's characterisation. A state enactment purporting to give to same-sex couples the legal status of being ‘married’ for the purposes of law across Australia would accordingly be inconsistent - given that it supposedly provided a legal status contrary to the civil disability enshrined in the national Marriage Act and the underlying Constitutional head of power. The enactment would also not be inoperative in other state/territory jurisdictions that did not recognise same-sex marriage.

A consequence would be that the people would not be legally ‘married’ outside the particular jurisdiction, with s 48 of the Commonwealth Marriage Act indicating that marriages solemnised in Australia otherwise than as stipulated are not valid. (Section 6 of that Act concerns ‘marriages’ as defined by the Act and deals with registration - rather than the solemnisation - of marriages in relation to state law. Section 88EA of the Act might be amended by the Abbott Government to address the potential loophole identified by Williams at p 130 of his article.)

The Commonwealth statute might be held to 'cover the field', excluding state legislation.

Would the High Court adopt an originalist approach to interpretation of 'marriage' if a state sought to recognise same-sex relationships beyond the current 'marriage-lite' status implicit in civil unions?

In Re Wakim; Ex parte McNally (1999) 198 CLR 511 McHugh J commented that

many words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding generations thought they covered. Examples can be found in the powers conferred on the Parliament of the Commonwealth to make laws with respect to "trade and commerce with other countries, and among the States", "trading or financial corporations formed within the limits of the Commonwealth", "external affairs" and "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State". In these and other cases, the test is simply: what do these words mean to us as late 20th century Australians? Such an approach accords with the recognition of Isaacs J in The Commonwealth v Kreglinger & Fernau Ltd and Bardsley that our Constitution was "made, not for a single occasion, but for the continued life and progress of the community". 

The level of abstraction for some terms of the Constitution is, however, much harder to identify than that of those set out above. Thus, in 1901 "marriage" was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably "marriage" now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others. 

But even if we continue to hold, as Windeyer J asserted in Ex parte Professional Engineers' Association, that the meanings of the words in the Constitution do not change as language changes, the meanings that we now place on the Constitution may not entirely coincide with the meanings placed on it by those who drafted, approved or enacted that document. That is because a Constitution contains implications, inferences and propositions as well as words, phrases and clauses. Experience derived from the events that have occurred since its enactment may enable us to see more in the combination of particular words, phrases or clauses or in the document as a whole than would have occurred to those who participated in the making of the Constitution. Thus we now see, although it was not seen in 1901, that freedom of communication on matters of government and politics is an indispensable incident of the system of government created by the Constitution and that the law of defamation must not be inconsistent with that freedom. Similarly, we now see, although it was probably not seen in 1901, that "industrial disputes" can be manifested by unions serving logs of claim on employers who reject them. 

Furthermore, the indeterminate nature of the words "with respect to" in ss 51 and 52 may result in subjects now falling within the scope of the Commonwealth power although most people in 1901 would have denied that the Commonwealth had power in respect of such subjects. For example, by reason of the present connection of the legal profession with almost every aspect of trade and commerce, taxation, trading and financial corporations, banking, insurance, copyrights, patents, bankruptcy, insolvency and matrimonial causes, the Parliament of the Commonwealth may now have regulatory powers over the profession that would have been regarded as unthinkable in 1901.

The Marriage Equality Bill 2013 (ACT)  doesn't - to the apparent surprise of one journalist who has contacted me - purport to allow marriage with non-human animals, marriage with minors, marriage with siblings or polygamy. (Australians have of course frequently eschewed voluntary union between two people to the exclusion of others for life, embracing the notion of serial monogamy.)

Human Rights Exceptionalism

'Western Universalism and African Homosexualities' by Nicholas Alden Kahn-Fogel makes a case - in my view unpersuasively - for African exceptionalism regarding human rights.  A "sordid history of Western imposition of universalizing ideals to manipulate and subjugate African minds and bodies"?

Kahn-Fogel states that

 This Article uses original historical research and an array of anthropological sources to suggest that efforts by Western liberals to protect practitioners of same-sex intimate conduct in Africa may be relatively unsuccessful and could further endanger the intended beneficiaries of advocacy. In recent years, Western human rights activists, scholars, and politicians have worked to advance homosexual rights in Africa. Understandably, they have tended to frame their arguments in liberal, universalist terms. Given successful reliance on liberal values of equality and autonomy to enhance the status of homosexuals in the West, this approach is intuitive. Liberal ideology has also become fully entrenched in international law, and the language of constitutions of countries across Africa reflects the influence of liberal philosophy. Nonetheless, numerous African leaders have responded to liberal appeals with hostility, and often with claims that homosexuality is un-African, a disease of the morally corrupt West. 

I am sympathetic to the liberal perspective, but consideration of the anti-essentialist arguments of queer theorists, communitarian philosophy, and the African anthropological record suggests reasons for caution in pursuing a liberal agenda to promote the well-being of people who engage in same-sex intimacies in Africa. Some of the anthropological evidence about the social significance of same-sex sexual intimacy in African cultures reinforces the claims of queer theorists, whose anti-essentialist arguments suggest that sexual identity is socially constructed, rather than the product of an immutable, biological imperative. In many African cultures, both historically and today, people who have engaged in same-sex intimacies have considered that behavior an insignificant component of their personal and sexual identities. This suggests obstacles for liberal nondiscrimination arguments. Likewise, the observation of queer theorists that essentialist claims can be used as effectively as tools of oppression as of liberation provides reason for caution; tyrannical majorities have frequently used the idea of fundamental, immutable difference as a means of subjugating disfavored minorities. In the end, categorizing all Africans who engage in same-sex intimacies as homosexuals may make the intended beneficiaries of such categorization easier targets for majorities in societies disinclined to accept Western conceptions of sexual identity. 

Communitarian philosophy is also relevant to any discussion of the legal status of homosexuality in Africa because of the deep communitarian roots of traditional cultures across the continent. Although African countries have tended to adopt constitutions that proclaim liberal rights, many of the societies in which those constitutions have arisen have lacked the West’s profound cultural commitment to individualism. Instead, a broad range of African cultures have tended to emphasize group welfare and individual responsibilities over individual rights. As a consequence, communitarian values have frequently explained the actual operation of law in African countries better than the putative liberal loyalties evinced in African constitutions. This communitarian perspective also suggests obstacles to advancement of homosexual rights in Africa through liberal arguments. 

Finally, a deeper appreciation of the sordid history of Western imposition of universalizing ideals to manipulate and subjugate African minds and bodies, and of Western denial of African agency, might alert liberals to the treacherous intellectual territory they inhabit and might help liberals avoid colonialist tropes that could further inflame resistance to policies aimed at enhancement of the status of people who engage in same-sex intimacies in Africa. Western liberals are correct to counter African claims that homosexuality is un-African by pointing out that European outsiders originally introduced religious intolerance and sodomy laws to African cultures that had been more amenable to same-sex intimacy. But African leaders who insist on the Western origins of homosexuality are also correct, though in an unintended sense: the presence in many contemporary African cultures of some people who define their sexual identities in terms congruous with Western conceptions of homosexuality may indeed be the consequence of Western influence. Additionally, even though there are now some Africans who consider themselves homosexuals, advocacy by Western rights advocates and threats by Western governments might cause backlash that could make their lives worse. Ultimately, if liberals hope to have a positive impact on the lives of Africans who engage in same-sex intimacies, we should structure our interactions with the cultures we hope to influence as conversations rather than as lectures or commands.

Mobility

'Free Movement and Labour Rights: Squaring the Circle?' (University of Cambridge Faculty of Law Research Paper No. 23/2013) by Catherine Barnard comments that

 When the Treaty of Rome was signed in 1957, its main focus was on creating a single market where free movement of goods, persons, services and capital could be ensured. It therefore regarded labour above all as a factor of production in respect of which the principle of free movement was to apply. The Treaty did contain a Title on Social Policy but its content was derisory. Subsequent Treaty amendments and the emergence of a body of secondary legislation helped to adjust this perspective on labour issues and developed what the Commission describes as the European Social Model. 

However, that very social model is now under threat. The threat stems from a variety of sources: concerns about the rigidity of labour law has led to pressure for greater flexibility, the eurozone crisis has led to major reform of a number of national systems of labour law, and, for the purposes of this paper, the decisions of the Court of Justice in Viking and Laval. Against the backcloth of the eurozone crisis, the Court’s unwillingness to engage in a genuine balancing between the economic and social dimension of the EU, meant that these cases became totemic for the trade union movement of all that was bad about the EU. The Monti II proposal was intended to help address some of these problems; it was roundly rejected by the national legislatures and received the first yellow card under the new Lisbon procedure. The aim of this paper is to consider the various ways of addressing the problems generated by the decisions in Viking and Laval in the light of the Monti II proposal.

Small Refugees and CROC

'A child rights framework for assessing the status of refugee children' by Jason Pobjoy in S. Juss and C. Harvey (eds.) Contemporary Issues in Refugee Law (Edward Elgar, 2013) 91-138 argues

Children have always been particularly susceptible to violations of human rights. It is a sad and chilling reality that children today remain the victims of some of the most devastating examples of state-sanctioned and private exploitation, violence and torture. While the maltreatment of children cannot be regarded as a new phenomenon, increasingly children are attempting to remove themselves from the debilitating environment that circumstances have placed them in. Significant numbers of children are travelling thousands, sometimes tens of thousands of miles — often accompanied by family, sometimes not — in search of protection. 

This chapter considers how international refugee law and international law on the rights of the child might be creatively aligned to respond to the reality that a child seeking international protection is both a child and a refugee. The focus of the thesis is on the capacity of the two international legal regimes to respond to the distinct needs of a refugee child in the context of the refugee status determination process. 

The chapter examines three contexts — defined as ‘modes of interaction’ — where the Convention on the Rights of the Child (‘CRC’) might be engaged to assist in determining the status of a refugee child. First, the CRC may provide procedural guarantees not otherwise provided under international refugee law. Secondly, the CRC may be invoked as an interpretative aid to inform the interpretation of the Convention relating to the Status of Refugees, and in particular the Article 1 definition. Thirdly, the CRC may give rise to an independent source of status outside the international refugee protection regime. These three modes of interaction provide a ‘child rights framework’ for assessing the status of a refugee child.

ISPs and Graduated Responses

The insightful and detailed (62 page) 'Evaluating Graduated Response' by Rebecca Giblin comments that

 It has been more than three years since the first countries began implementing 'graduated responses', requiring ISPs to take a range of measures to police their users' copyright infringements. Graduated responses now exist in a range of forms in seven jurisdictions. Right-holders describe them as 'successful' and 'effective' and are agitating for their further international roll-out. But what is the evidence in support of these claims?

After providing a detailed snapshot of the structure and application of graduated response schemes in France, New Zealand, Taiwan, South Korea, the U.K., Ireland and the U.S., the paper synthesizes the available evidence regarding the efficacy of the various arrangements, and then evaluates the extent to which they are actually achieving the copyright law’s aims. Of course, as the work acknowledges, it is impossible to identify any one unifying target or rationale. Accordingly, the paper evaluates the extent to which the global graduated response is helping to achieve any of several distinct aims that are often put forward to justify the grant and expansion of copyright (while being agnostic as to which, if any, should be preferred). Thus, it asks:

1. To what extent does graduated response reduce infringement?

2. To what extent does graduated response maximize authorized uses?

3. To what extent does graduated response promote learning and culture by encouraging the creation and dissemination of a wide variety of creative materials?

The analysis demonstrates that, judged against these measures, there is little to no evidence that that graduated responses are either 'successful' or 'effective'. The analysis casts into doubt the case for their future international roll-out and suggests that existing schemes should be reconsidered.

Giblin introduces her paper by commenting that

The war against online copyright infringement has been fought on a number of different fronts – via litigation against the P2P software providers who enabled it, the end users who engaged in it, and, most recently, against the ISPs who provide the infrastructure that permits the data to flow. This last strategy has seen powerful content interests forcefully lobbying governments and ISPs worldwide to adopt so-called “graduated responses”. The message has been that content owners shouldn’t be responsible for policing infringement. In the view of the International Federation of the Phonographic Industry (IFPI):

actions against individual uploaders are onerous and expensive and we shouldn’t have to be taking them. That job should not be ours – it should be done by the gatekeepers of the web, the Internet Service Providers (ISPs), who unquestionably have the technical means to deal with copyright infringement, if only they would take responsibility for doing so.

Big promises have been made about the effects graduated response would have on end user infringement. In its 2007 Annual Digital Music Report, IFPI claimed that “[w]ith cooperation from ISPs, [it] could make huge strides in tackling content piracy globally” and argued that “[d]isconnection of serious copyright offenders by ISPs is the easiest and most practical response to illegal file-sharing.” Its view was that “[d]isconnection of service for serious infringers should become the speeding fine or the parking ticket of ISP networks.” The message in the announcement of its 2008 report was the same: “ISP cooperation, via systematic disconnection of infringers and the use of filtering technologies, is the most effective way copyright theft can be controlled.” The Motion Picture Association of America (MPAA) has similarly claimed that “[a] variety of approaches, including graduated response policies and technological tools, can meaningfully contribute to thwarting unlawful conduct online”.

These promises have been accepted in a number of jurisdictions around the world. Five countries – France, New Zealand, Taiwan, South Korea, and the UK – have enacted public laws which place some degree of responsibility on ISPs to police their users’ infringements. The first four have all been operational for some time, but the details of the UK arrangement are still being hammered out. In addition to these public graduated response laws, private arrangements between some rightholders and some ISPs have been reached in a few jurisdictions in an effort to achieve the same end result. The most notable of these operate in Ireland and the US. The paper only considers systems that involve some potential penalty or consequence for repeated infringement. So-called “notice-notice” schemes, where ISPs compulsorily or voluntarily forward infringement allegations to their customers but no penalty follows, are outside the scope of the paper.

This paper seeks to identify the effects of the various graduated response schemes around the world, and evaluate the extent to which they are achieving their aims. This is far easier said than done. Influential rightholders have repeatedly claimed that graduated response really does work. For example, IFPI has declared that graduated responses “have been effective where they have been introduced”, and the MPAA has announced that graduated response strategies “have proven to be successful in various contexts around the world”. However, judging the “success” or “effectiveness” of any copyright policy is a challenging exercise due to longstanding and fundamental disagreements about which factors success should be measured against. What is copyright law actually seeking to achieve?

There has never been universal agreement about what copyright law’s aims are, or even about what they should be. Multiplicities of theoretical and pragmatic considerations are part of the policy mix in any jurisdiction seeking to reform its copyright law. In recognition of that reality, this paper considers the extent to which each graduated response law is achieving the three aims that are most commonly used to justify the grant and expansion of copyright.

The first evaluation point will be the extent to which global graduated response reduces infringement. The suggestion that reduced infringement in and of itself is a proper aim of the copyright law is one that has been often been made by major global rightholders. Thus, when IFPI declared that graduated responses “have been effective where they have been introduced”, the evidence it provided in support was a claim of reduced use of P2P services in France and New Zealand, and a fall in cyberlocker usage in South Korea. Although it sought to link the reduction in South Korea with an increase in the legitimate market, the claims about NZ and France equated reduced infringement with “effectiveness” without addressing whether that reduction would translate to higher sales, increased distribution, more creation or higher quality creative output. In August 2013, the US Patent & Trademark Office (USPTO) invited public submissions to help it determine whether voluntary initiatives such as the US graduated response scheme have helped reduce infringement. One specific question it asked was “[h]ow should ‘effectiveness’ of cooperative voluntary initiatives be defined?” The Recording Industry Association of America (RIAA) argued that, to measure effectiveness, the USPTO should begin by identifying the intended goal of each voluntary initiative. It then recommended that the Office “consider whether or not the intended goal, if achieved, would likely be useful to deter online infringement.” This seemed to suggest that reduced infringement is a proper aim in and of itself – or at least the one that should be given the greatest weight.

The argument that copyright laws should aim to reduce infringement is often cloaked in the rhetoric of property and theft. One example of this is the MPAA’s long-running “Piracy – it’s a crime” campaign, which features the words:

You wouldn’t steal a car

You wouldn’t steal a handbag

You wouldn’t steal a television

You wouldn’t steal a movie

Downloading pirated films is stealing, stealing is against the law,

PIRACY. IT’S A CRIME.

By using this rhetoric, the MPAA can be seen as relying on a right-based justification that is analogous to the one that underpins the natural rights theory. Natural rightists see authors as acquiring property rights in their works “by virtue of the mere act of creation”, with the “corollary that nothing is left to the law apart from formally recognising what is already inherent in the ‘very nature of things’”. That is, “natural rights arguments[] are less concerned with regulatory techniques to promote social, cultural and economic goals than with a belief that copyright ought to exist because it is proper and correct for it to do so.” As Senftleben explains, “[t]he natural law argument supporting authors’ rights appeals to feelings of rightness and justice. As it is the author who spends time and effort on the creation of a new work of the intellect, it is deemed justified to afford him the opportunity of reaping the fruit of his labour.” The natural rights approach has traditionally driven copyright policymaking in the civil law tradition. However, as Yen and Senftleben have both demonstrated, it has also influenced lawmaking in historically utilitarian jurisdictions such as the US. In recognition of the fact that reducing infringement is regularly claimed as an important aim of copyright law, the paper will analyze the extent to which graduated response is succeeding in doing so.

The second point of evaluation is the extent to which graduated response maximizes the size of the legitimate market. This assumes that reduced infringement may not be a proper aim in and of itself, but only to the extent to which that reduction translates to greater sales. This approach is underpinned by the idea that, “if users pirate less but the creators do not earn more, it is the culture that is losing.” This view has one foot in each of the utilitarian and natural rights camps. Utilitarians see the grant of copyright as being necessary to encourage the creation and dissemination of knowledge and culture. This justification has long been favored in common law countries: the preamble of the Statute of Anne stated that it was “for the Encouragement of Learning, by Vesting the Copies of printed Books in the Authors, or Purchasers, of such Copies”, and the United States Constitution gave Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. A strictly utilitarian view would be interested in maximizing the creation and dissemination of content, and the extent to which those aims were achieved by infringement would only be relevant to whether that might deter future creation. By contrast, a strictly natural rights approach would focus on protecting the rights of authors regardless of whether so-doing achieves any broader cultural ends. Interestingly, though France’s copyright law (the droit d’auteur) is strongly rooted in the natural rights tradition, the origins of its graduated response strategy show that the intention was not just to reduce infringement, but to translate that into increased legitimate consumption. This may have been a pragmatic recognition of the fact that it’s difficult to reduce infringement without offering reasonable legitimate alternatives: the Olivennes Report, on which the law was based, observed that “[i]t is difficult to deny the persistence of long delays is an invitation to piracy”. That dual aim was emphasized again in the Lescure report, commissioned by the French Government to evaluate the success of the French law after several years of operation. Although major rightholders sometimes suggest that reduced infringement is a proper aim in and of itself, at other times they link reduced infringement to increased legitimate uptake. For example, the MPAA’s response to the USPTO’s call for submissions suggested that in the context of graduated response, “effectiveness” should be defined as a “decrease in consumer sharing of copyright infringing files; and … [an] increase in consumer accessing of legal digital content – ideally measured relative to a ‘control’ or what they would have been in the absence of the initiative…” Accordingly, this work considers the extent to which graduated response regimes increase legitimate markets.

The third evaluation point is the extent to which graduated response laws encourage the creation and dissemination of a range of content. This is squarely rooted in the utilitarian idea that copyright is granted to promote broader public interest aims. As Samuelson and other members of the Copyright Principles Project (CPP) explain:

Copyright law should encourage and support the creation, dissemination, and enjoyment of works of authorship in order to promote the growth and exchange of knowledge and culture. … A successful copyright ‘ecosystem’ should nurture a diverse range of works. It should encourage creators to make and disseminate new works of authorship and support readers, listeners, viewers, and other users in experiencing those works.

In its response to the USPTO’s call for submissions, the Electronic Frontier Foundation (EFF) demonstrated similar priorities. It argued that, “[i]f the PTO evaluates private agreements meantto reduce copyright and trademark infringement, it should consider how well such agreements serve the ultimate goals of those statutes, which are not to ‘reduce infringement’ but to promote knowledge, grow the arts, and protect consumers.” Thus:

Effectiveness should be defined in terms of leading to the creation of more literature, audiovisual work, music, photography, software, etc., as well as creating a broader audience for those arts. This should be the primary measure of success of any copyright enforcement effort; indeed of any federal copyright policy. Although utilitarian considerations are far from being copyright law’s only aim, they are the rhetorical linchpin of copyright policy in common law countries, and as Senftleben has persuasively demonstrated, have sometimes influenced civil law policy-making as well. Nothing else explains the fact that the European Copyright Directive records an intention for the harmonized framework to “foster substantial investment in creativity and innovation … and lead in turn to growth and increased competitiveness of European industry”.

If utilitarian considerations are relevant to the implementation of graduated response, then those schemes should be seeking to facilitate the creation of the greatest possible variety of cultural materials, and their widest distribution. This analysis will evaluate the extent to which they do so. If graduated response laws do not achieve these ends, it makes it harder to justify their continued adoption.

The following section will outline the mechanics of the various public and privately-arranged graduated response schemes in existence around the world, providing a detailed and comprehensive snapshot of global graduated response law circa 2013. Readers who are already familiar with the way in which those laws operate may prefer to skip straight to the evaluative analysis in Part 3, which considers the available evidence to determine the extent to which the various graduated responses are satisfying each of the above-identified aims. The paper concludes by weighing the results of the analysis to determine whether the case has been made for retention or further adoption of graduated response.

Stripes, Silks and Software

Disagreement about stripes, confusion and the Apollo Shoe, the Indigo Shoe, the Stingray Boot, Apple Pie Runner, Stingray Runner, Basement Shoe, Apple Pie Shoe and Apple Pie Pink Runner? Problematical practice in the IT sector?

In Adidas AG v Pacific Brands Footwear Pty Ltd (No 3) [2013] FCA 905 the Federal Court of Australia has found that Adidas was entitled to relief for infringement under s 120 of the Trade Marks Act 1995 (Cth) by Pacific Brands Footwear Pty Ltd of the three-stripe trade mark on Adidas branded shoes.

Adidas has been using the stripe mark in Australia since at least 1957. Pacific Dunlop (later Pacific Brands) had agreement with Adidas to distribute the footwear. Pacific Dunlop between 1992 and 1996 had a controlling stake in Adidas' Australian offshoot, complementing the licensing agreements.

The dispute dates from at least 2011, with the Federal Court in 2011 - in Adidas AG v Pacific Brands Footwear Pty Ltd [2011] FCA 1205 dismissing the application by Pacific Brands to prevent Adidas from relying upon survey evidence, Pacific Brands not having initially raised its objections to the survey with Adidas, as required by the Court’s published procedures. Procedure matters!

Pacific Brands was said to have added a fourth "deceptively similar" stripe to cheap - and "low performance" trainers, which were distributed through bargain outlets and were not widely advertised. Some consumers might however have thought that they'd had a win, ie the come across a premium product in a bargain store because of the vagaries of wholesaling or bulk buying by the retailer. Stranger things happen.

In 2011 Adidas indicated that although Pacific Brands had ceased distributing the shoes the litigation was necessary to discourage infringers and stop further damage to the brand.

In the latest judgment the FCA has referred to Australian Woollen Mills Ltd v FS Walton & Co Ltd [1937] HCA 51, Crazy Ron’s Communications Pty Ltd v Mobileworld Communications Pty Ltd [2004] FCAFC 196 and Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 before ruling that some of Pacific's goods - with four stripes - had a "real and tangible danger of confusion" regarding Adidas' products, with a likelihood that people would wonder whether the products came from the same source.

The judgment helpfully features illustrations of the different shoes and an item by item analysis of whether there was confusion and thus infringement.-

Damages are to be agreed.

The judgment is useful for law students for its information about licencing and marketing practice, and empirical information regarding confusion.

In Attachmate Corporation v Commonwealth of Australia (No 1) [2013] FCA 896 the Commonwealth has sought discovery of the record of the deposition in the US District Court (Western District of Washington at Seattle) between Attachmate and Health Net, Inc, which appears to indicate problematical practice regarding copyright infringement.

In the current judgment the FCA notes that

In June 1999 the Commonwealth, through its Department of Defence (‘Defence’), entered into a written agreement under which the applicant’s wholly owned Australian subsidiary, Attachmate Australasia Pty Ltd, would provide for Defence’s use IBM 3270 terminal emulation software called ‘Extra!’. The written agreement related to the right to use 8000 units of the software. This agreement was subsequently renewed automatically on its licence terms. In October 2009, following an audit, the applicant (‘Attachmate’) came to the view that Defence had used Extra! on more than 8,000 machines. Defence countered that it was entitled to use Extra! as much as it wanted provided it did not do so on more than 8,000 machines at once. Attachmate then sued in this Court alleging copyright infringement. At the same time, lest Defence’s use be authorised as Crown use by s 183 of the Copyright Act 1968 (Cth), it commenced parallel proceedings in the Copyright Tribunal of Australia: CT 1 of 2011 Attachmate Corporation v Commonwealth of Australia. The basic question then is the meaning of the 8,000 unit limitation.

The Commonwealth also deploys some additional defences of estoppel, delay and acquiescence. It is said that Attachmate knew what was going on from a very early date and did nothing. The dispute about the amended discovery category 2.5 concerns these defences.

The Commonwealth now points to certain litigation in the United States District Court for the Western District of Washington sitting in Seattle. This litigation is entitled Attachmate Corporation v Health Net Inc and was assigned to the docket of Pechman J. It is not clear to me whether that proceeding has yet been tried. In that proceeding Attachmate sues for breach of copyright in relation to its software. The basic allegation is that Health Net ‘over-installed’ Attachmate’s software (that is, installed it upon more machines that it was entitled to do under its licence). In written submissions filed by Health Net Inc in those proceedings on a motion to dismiss in limine it submitted as follows:

First, Attachmate as a company seeks “damages” from over-installation and lack of license compliance far in excess of what it would receive in licensing revenue for the same number of units. For example in this case, Attachmate seeks over $24 Million in damages for lack of compliance, as compared to the approximately $4 Million HNI has paid Attachmate in fees over 10 years. Thus, Attachmate as a company is motivated to sit back and not conduct audits that would reveal any lack of compliance, in favor waiting years while alleged damages are racked up.

Second, in furtherance of this financial strategy, Attachmate implements a bonus structure for its entire “license compliance team” that encourages each member to look the other way for years and years, rather than initiate an audit when they should have known that a customer was out of compliance. More specifically, each member of the compliance team is paid a salary, and a substantial bonus based on the amount of compliance revenue Attachmate brings in from over-installed customers. Jackson Decl. II, Exs. B (Swadener Depo. 41:4-47:12), C (Taylor Depo. 80:19-85:23), and D (Fusarao Depo. 23:24-24:19). If the compliance team members catch over-installations early, when they are small and only in existence for a short period of time, the compliance team member earns no bonus. On the other hand, if the compliance team member sits back, and waits years, and then initiates an audit, the over-installations may have grown, and the number years of over-installations multiplied many times over. In that case, the compliance team members earn a substantial bonus, sometimes more than their salary. Thus, Attachmate’s compliance team members, like their employer, are motivated to sit back and not conduct audits that would reveal any lack of compliance, in favour waiting years while alleged damages are racked up.

The reference to the three depositions will be noted and their correspondence with the discovery now sought. In this case, the Commonwealth paid Attachmate a fee of $200,000 per year until 2008. Attachmate has discovered an email of 13 February 2008 containing an internal communication as follows:

That document you sent is pretty useless to you. It was a proposal that was never adopted. It was a half arsed attempt to increase the revenue stream from Defence. I remember the kick-back was that they had $200K in the budget, and we were best not to ask any questions about how many licences may/may not be in use, or try to lift our profile, and the money would just come every year (as it basically has, up until now, since that time).

The Commonwealth’s suggested thesis is that Attachmate conducts its affairs by not pursuing infringements of which it has notice in order to maximise ‘compliance revenue’. The submission set out above suggests that three employees of Attachmate gave evidence on deposition that the bonus arrangements at Attachmate encouraged such behaviour amongst its staff. The email of 13 February 2008 is capable of lending credence to this view.

Attachmate submits that the depositions ought not to be discovered because: (a) this thesis is implausible and speculative; (b) Defence has not pointed to any documents suggesting a link between any delay in complaining and such a strategy; (c) it has admitted that its compliance team receives bonuses based on achieving compliance revenue goals; (d) discovery should, in any event, be postponed until Attachmate serves its evidence in reply on the issues of estoppel, delay and acquiescence; and (e) the material is not related directly to the issues raised by the pleadings.

The Court was not persuaded by that submission.

US Patent Licencing

'The Comparative Law and Economics of Standard-Essential Patents and FRAND Royalties' by Thomas F. Cotter in Texas Intellectual Property Law Journal (Forthcoming) comments that

Standard setting organizations often require their members to declare which of their patents are essential to the practice of a prospective standard, and to agree to license any such standard-essential patents (SEPs) on "fair, reasonable, and nondiscriminatory" (FRAND) terms.

Among the issues that have arisen in recent disputes involving FRAND-encumbered SEPs are 

(1) whether a FRAND commitment creates a binding contract for the benefit of third parties, obligating the SEP owner to forgo the right to seek injunctive relief for the infringement of the SEP;

(2) whether the law of remedies, or other principles of generally applicable civil law such as the doctrine of "abuse of right," can limit the prevailing SEP owner’s ability to obtain injunctive relief;

(3) the circustances under which competition law (antitrust) may play a role in resolving these matters;

(4) whether the patentee is entitled to relief in the form of ongoing damages, if one or more of these bodies of law eliminates the possibility of an injunction; and

(5) if so, how should courts calculate those damages. 

This article provides both an overview of how courts and other entities have begun to address these questions in the United States and elsewhere, and my analysis of the advantages and disadvantages of different possible approaches. I argue, among other things, first that courts generally should not allow SEP owners to obtain injunctions, but rather only ongoing damages; second, that in principle though perhaps not always in practice, it is preferable to use contract and patent law to achieve this result, as opposed to antitrust; and third, that in awarding monetary relief for the infringement of SEPs courts should apply the same methodology the use to calculate reasonable royalties generally, subject to a few modifications.

Sentencing and Hate Crimes

I have been catching up with the NSW Law Reform Commission's major report [PDF] on Sentencing (Report 139), including discussion of hate crimes.

The report is accompanied by a companion volume titled Sentencing - Patterns and Statistics [PDF], a "comprehensive summary of the research on sentencing as well as an overview of sentencing statistics".

The Commission indicates that its aim is to:

• achieve a sentencing regime that is fair for offenders, victims and the community as a whole; 
• reduce the complexity of sentencing law and deliver transparency and consistency in approach; and 
• develop a range of sentencing options that are flexible to the circumstances of the case and that promote prevention and reduction of reoffending. 

We have also focussed in this review on the government’s objectives of preventing and reducing crime and reducing the level of offending as set out in NSW 2021. 

In response it proposes a revised Crimes (Sentencing) Act to replace the Crimes (Sentencing Procedure) Act 1999 (NSW), albeit preserve many  provisions of the current statute. The revised enactment would -

• ensure that the offender is punished for the offence and is held accountable for his or her actions, 
• denounce the conduct of the offender,
• recognise the harm done to the victim of the crime and the community,
• protect the community from the offender,
• deter the offender and others from committing offences,
• promote the rehabilitation of the offender, and
• reduce crime.

The report notes that

Section 21A of the Crimes (Sentencing Procedure) Act 1999 (CSPA) currently lists 22 aggravating and 13 mitigating factors that courts must take into account when formulating an appropriate sentence, even though the common law already addresses many of these. The large number of s 21A factors and their division into “aggravating” and “mitigating” factors has made them difficult to apply.

To simplify the sentencing process, while at the same time increasing the level of transparency and consistency in the factors the courts apply, we propose the replacement of s 21A by a new provision that lists six general factors that a court should consider in sentencing, leaving the detail to the common law. These factors include the nature, circumstances and seriousness of the offence, the personal circumstances and vulnerability of the victim, the extent of the harm caused, the offender’s character, background and offending history, the extent of any remorse shown and the offender’s prospects of rehabilitation. (Recommendations 4.1 and 4.2)

We also propose a series of stand-alone provisions that would require the court to take into account circumstances where the offence: was committed while the offender was on conditional liberty; was motivated by group hatred or prejudice; or was committed while the offender was subject to a criminal organisations control order. These address important issues that generally aggravate the seriousness of the offence and consequently the sentence. (Recommendations 4.7-4.9)

Additionally, we propose that several stand-alone provisions should continue to require the court to disregard, as a potential mitigating factor: the consequences arising from conviction as a sex offender and high risk violent offender; the consequences arising from the confiscation of assets or forfeiture of the proceeds of crime; and good character in child sexual offences (Recommendations 4.4 - 4.6)

A revised Crimes (Sentencing) Act should also replicate the current discounts for guilty pleas, assistance to the authorities and assistance in facilitating the conduct of the trial. We recommend clarifying that a guilty plea discount reflects only the utilitarian value of the plea and requiring that the court quantify it. These factors have an important role to play in improving the efficiency and effectiveness of the criminal justice system. (Recommendations 5.1-5.3)

The rules that courts must follow when setting a term of imprisonment have become overly complicated and difficult to implement. We recommend improvements to simplify these rules, including:

• A return to the top down approach which requires the court to set the head sentence first followed by the non-parole period, except where the court imposes a fixed term sentence. (Recommendation 6.1) 

• The adoption of a presumptive ratio that the non-parole period should be two- thirds of the head sentence. The court should be able to depart from the ratio only if, having regard to all the purposes of sentencing, it is satisfied that there are good reasons for such a departure. This would replace the over-used and much criticised “special circumstances” test. (Recommendation 6.2) 

• The preservation and clarification of the operation of aggregate sentencing, and the introduction of new provisions (as an alternative) to permit a court to accumulate sentences into an overall effective head sentence and then to fix a single non-parole period. (Recommendation 6.4-6.6)

We do not propose abolishing sentences of imprisonment of six months or less and consider that the courts should continue to be precluded from setting a non-parole period in these cases. While short sentences have a number of problems, including the potential to increase the risk of reoffending, they are nonetheless part of the continuum of sentencing. We have focussed on improving community-based custodial options as a way of discouraging the use of short sentences. (Recommendations 6.8 and 6.9)

We also oppose combining imprisonment with any community-based sentences, although we will give further consideration to the option of back-end home detention as part of our review of parole in NSW.

In discussing hate crimes the report states that

A revised Crimes (Sentencing) Act should contain a stand-alone provision to the effect that the court, when sentencing for an offence that was motivated wholly or partly by hatred for or prejudice against a group of people to which the offender believed the victim belonged or with which the offender believed the victim was associated (being people of a particular religious belief, racial, ethnic or national origin, age, sexual orientation, transgender status or having a particular disability or illness), should take that motivation into account when assessing the need for the sentence to contain an additional element of deterrence, denunciation and/or community protection from the offender, and also when assessing the offender’s prospects of rehabilitation.

It goes on to comment that

Section 21A of the CSPA currently includes, as an aggravating factor, that the offence was: motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability). 

The extent to which the common law regarded a motivation of this kind as a factor elevating the seriousness of an offence is not entirely clear, although some Australian decisions appear to have accepted it as a relevant consideration going either to the objective criminality of the offending, or to deterrence. 

Arguably the common law in Australia would have regarded this form of offending as justifying special consideration, by reference to foreseeability of harm and general deterrence factors, without the need to resort to racial or group hatred reasoning. To a significant extent, however, legislative intervention, similar to that in place in NSW, has put to rest any such issue in the other Australian jurisdictions. 

Hate legislation of this kind has tended to fall into three separate models. 

Aggravating factor model 

This is the approach adopted in NSW. It is mirrored in the legislation in force in the Northern Territory which provides that the circumstances relating to the commission of an offence that can be regarded as an aggravating factor include that “the offence was motivated by hate against a group of people”. 

Although not specifically described as an aggravating factor, Victorian legislation requires the court, when sentencing an offender, to have regard to whether the offence was: motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated. 

The sentencing legislation of several other jurisdictions treats hostility bias or hatred towards a group with a common characteristic (for example of race, colour, nationality, religion, gender identity, sexual orientation, age or disability) as an aggravating factor where it was the motivation for committing an offence. The Tasmania Law Reform Institute also recommended the model in relation to racist aggravation. 

Aggravated offences – sentence enhancement model 

An alternative approach has been to enact an aggravated form of an offence carrying an increased maximum sentence. An example can be seen in the Crime and Disorder Act 1998 (UK). Under that Act, aggravated forms of the offences of assault, criminal damage, public order or harassment, are available where the offender demonstrates hostility towards the victim based on the victim’s membership (or presumed membership) of a racial group, or where the offence, was motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group. 

Similarly the Criminal Code (WA) provides for aggravated offences of assault (in its various forms) where the offence is committed in “circumstances of racial aggravation”. Similar provisions apply in relation to offences involving threats, and criminal damage. For the purpose of these provisions circumstances of racial aggravation are defined to mean circumstances in which: (a) immediately before or during or immediately after the commission of the offence, the offender demonstrates hostility towards the victim based, in whole or part, on the victim being a member of a racial group; or (b) the offence is motivated, in whole or part, by hostility towards persons as members of a racial group.

Vilification offences 

In NSW it is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group on the ground of either the race, sexual orientation, or disability of that person or members of that group.  Offences of serious vilification have been introduced that will apply where that form of conduct includes threatening or inciting others to threaten physical harm towards, or towards any property of, the person or group. 

Similar substantive offences of serious vilification have been introduced elsewhere in Australia, either in the form of anti-discrimination legislation;  or in the form of racial vilification legislation;  or as part of a general criminal code. 

These provisions give rise to stand alone offences. Although they may overlap with another offence which was aggravated because of some form of group hatred or prejudice, in accordance with the De Simoni principle, these provisions will not of themselves be relevant when the offender is sentenced for that other offence. 

Adoption of a stand-alone provision 

In this report we have confined our attention to the way in which a motivation of hatred for, or prejudice against, a group of which the victim is a member or presumed member, should be taken into account under a revised Crimes (Sentencing) Act. We have not considered the offence of serious vilification, although we note that the Law and Justice Committee of the NSW Legislative Council is conducting an inquiry into racial vilification law. Nor have we considered the introduction of aggravated forms of offences, such as assault, that can be seen in the offence enhancement model. 

The reason for singling out hate crime motivation as a sentencing factor is clear. Criminal conduct associated with hostility or hatred towards or prejudice against marginalised or vulnerable or disadvantaged groups deserves special consideration because of:

• the harm and humiliation and reduced self worth experienced by a victim who already feels marginalised and at risk, and to the increased feeling of vulnerability among the community to which that person belongs; 

• its effect in undermining the benefits of a multicultural or diverse society; 

• the need for a public reaffirmation of the values of tolerance and respect, and the unacceptability of irrational prejudices;  and 

• the need to denounce and to deter criminal conduct motivated by racism, religious intolerance, homophobia, and other forms of prejudice.

The decisions in relation to the s 21A(2)(h) factor to date suggest that:

• Simple hatred of a victim will not suffice. The provision is concerned with offences that are motivated by hatred or prejudice against a group. 

• The offence must be motivated by actual hatred or prejudice towards a group, and not simply because of an opportunistic belief, for example, that members of  a particular group are likely to keep property in their home that is worth stealing.  

• Intra-racial or intra-religious group hatred or prejudice will qualify. It is not necessary that the offence be motivated by inter-racial or inter-religious hatred or prejudice. 

• The fact that the offence was motivated by hatred for or against a person believed to be a member of a group (paedophiles) that was not one that has traditionally been recognised as a category of vulnerable persons protected under hate laws, does not exclude its application.  

There is nothing controversial in the first three decisions, but the fourth is troubling, in giving a broad interpretation to the expression “group” in s 21A(2)(h), that extends beyond those mentioned in parenthesis.

We consider that a revised Crimes (Sentencing) Act should contain a stand-alone provision that requires the court, where appropriate, to take into account the fact that an offence was motivated by, or associated with, a hatred for or prejudice of the kind that has become the subject of hate crime laws. Taking it into account (as elevating the seriousness of the offence, and as justifying additional weight to specific and general deterrence) is in our view preferable to the sentence enhancement model. 

In particular, this approach calls for a more direct consideration of the objective culpability, and need for deterrence associated with this form of criminality, than the indirect approach associated with an increase in the maximum available penalty for individual offences. It is a provision that will apply across the board without the need to identify and amend each section that creates an offence which might be committed in circumstances amounting to a hate crime. 

Adoption of a provision of this kind in place of s 21A(2)(h), as a stand-alone section, would assist in addressing concerns of the kind that have led to the current inquiry of the Law and Justice Committee of the NSW Legislative Council into racial vilification laws. Although that inquiry is confined to racial vilification, similar considerations apply in relation to the other forms of serious vilification which give rise to offences under the Anti-Discrimination Act 1977 (NSW), and which might sit more comfortably in the Crimes Act 1900 (NSW). 

As has been noted in several law reform reports, sentencing law needs to provide a response to hate crimes that: 

• reinforces the existence of a tolerant multi-cultural society; 

• respects minority groups;   

• recognises the particular form of criminality and harm both direct and indirect that is associated with this form of criminality; and 

• makes a public symbolic statement of the abhorrence with which it is viewed and that encourages its denunciation.

The test 

The various models of hate crime laws mentioned above employ either a “motive test” or a “group selection test”, or a test that simply depends on a “demonstration of hostility test” that, despite their diversity, are linked by a common purpose to specifically and publicly target crime that is motivated or otherwise shaped by prejudice. 

We propose adopting the motivation test, as it more precisely focuses attention on the fact that the offending is related to group hatred or prejudice. The selection test would extend application of the section to cases where the offending was unrelated to hatred or prejudice, that is to cases where, for example the victim was selected because of a stereotype that a particular group of people was an easy target, being wealthy or being likely to have readily accessible assets worth stealing. Our approach in this respect would accord with that taken in respect of the current s 21A(2)(h); although it would differ from that taken in the Victorian decision of R v Gouros. 

We do not favour the demonstration of a hostility test. In many cases evidence of the demonstration of hostility immediately before, during or immediately after the offending conduct, for example, through speech, will be available to make good the motivation test. In other cases however that behaviour may be unrelated to the reason for the offence, and involve little more than spontaneous insult. 

Although it would be possible to introduce a provision that incorporates all three tests, as the Tasmania Law Reform Institute proposed, we prefer to confine the test to that of motivation. This test links the aggravating circumstance directly to the reason for its introduction as a response to hate-motivated crime. 

We propose a revision of the formulation in s 21A(2)(h) that would permit courts to apply the provision where the offence was motivated “wholly or partly” by the hatred or prejudice. This would facilitate proof and address those cases where there was a mixed motivation for the offence. It would also accord with the approach taken in legislation in Victoria and New Zealand. 

The groups 

In our view the focus of the legislation should be on the minority and vulnerable or subjugated groups in whose interest hate crime laws have traditionally been developed. This would require a departure from the CCA’s approach in Dunn v R where the interpretation that it gave to s 21A(2)(h) would effectively extend its reach to hatred or prejudice in relation to any group with common characteristics, for example, cyclists or lawyers. On this basis we would confine the provision to those cases where the hatred or prejudice related to “a group of people to which the offender believed or perceived the victim belonged, comprising people of a particular religious belief, racial, ethnic or national origin, age, sexual orientation, transgender status or having a particular disability or illness”. 

In this formulation we have deleted “language” as a group unifying factor compared to the existing list in s 21A(2)(h). It has an indeterminate reach, it does not necessarily denote minority or vulnerable status, and it is likely to add little to the “racial, ethnic or national” origin criterion. We have added “illness” as well as disability, which is intended to capture issues such as HIV/AIDS status. We have also added “transgender status” on the suggestion of stakeholders and in conformity with the Anti-Discrimination Act 1977 (NSW). 

It is implicit in the foregoing that the fact of simple hatred towards a victim unassociated with that person’s perceived membership of a relevant group will not suffice. This is consistent with existing authority in NSW.   

Extended reach – association 

Potentially there are circumstances in which the victim may be indirectly caught up in a hate-related crime, for example, where that person is assaulted when going to the assistance of another person who would fall directly within the reach of the proposed provision. Similarly the perceived association of the victim with a “protected group”, not because of membership of that group, but because the fact that the victim provided advocacy or support services for that group, may have been the factor motivating an attack. 

Situations of this kind have been accommodated in the Sentencing Act 1991 (Vic),  and we consider it desirable to revise the formulation contained in s 21A(2)(h) by adding association as a criterion.

NSW Parole Regime

Amid penal populism in NSW it is interesting to see that the state Law Reform Commission has released three Question Papers on parole as part of community consultation regarding the NSW criminal justice regime.

The papers follow the NSW Law Reform Commission's major Sentencing report (Report 139) noted here.

Question Paper 1 [PDF] discusses the design and objectives of the NSW parole system, including the distinction between automatic (court based) and discretionary parole.

Question Paper 2 [PDF] looks at the membership of the State Parole Authority and the Serious Offenders Review Council, including the appointment and expertise of members.

Question Paper 3 [PDF] examines the discretionary parole decision making of the State Parole Authority, including the role played by the Serious Offenders Review Council regarding serious offenders.

Paper 1 notes that -

When an offender is sentenced to imprisonment by a court in NSW, the court usually imposes a non-parole period (the minimum period that the offender must spend in custody) and a head sentence (the maximum period that the offender may be detained in custody). The offender may be released on parole at some point between the expiry of the non-parole period and the end of the head sentence .... 

When an offender is released on parole, the person serves the balance of the head sentence in the community and can be recalled to prison for breaching the conditions of parole. 

A court may in some circumstances also choose to impose a “fixed term” of imprisonment, which will not have the structure shown in Figure 1.1. An offender must spend the whole of a fixed term of imprisonment in custody and is released unconditionally at the end of the term. There is no possibility of parole as part of a fixed term of imprisonment. In NSW, all sentences of six months or less must be fixed terms. 

NSW has a mixed parole system. Offenders who are sentenced to a head sentence of three years or less (where the sentence is not a fixed term) are generally released to parole automatically at the expiry of the non-parole period by order of the sentencing court. The court also determines the conditions attached to the parole order. A court must make a parole order directing the release of the offender at the end of the non-parole period if the head sentence is three years or less. In this sense, NSW has automatic parole for such sentences. 

NSW also has a discretionary safeguard on automatic parole. Under certain circumstances, the State Parole Authority (SPA) may revoke a court-made parole order before the offender is released to parole.  This power allows SPA to override automatic parole and substitute a discretionary parole decision for offenders serving sentences of three years or less. 

If an offender is sentenced to a head sentence of more than three years, the court does not make an order. Instead, release to parole is at the discretion of SPA. 

SPA may decide to release an offender at the end of the non-parole period, or at some later point during the possible period of release on parole, or not at all. SPA is guided by different considerations than those that guide the sentencing discretion of courts. We look in detail at SPA’s parole decision making in Question Paper 3. 

If SPA grants parole, it also determines the conditions that will be part of the parole order (conditions are discussed further in Question Paper 4). Nearly all offenders who have been consistently refused parole will still be released at the end of the head sentence. The only exceptions are the few offenders serving life sentences or subject to a continuing detention order under the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW). 

As courts in NSW may also choose to impose a fixed term of imprisonment instead of a sentence structured as a head sentence and a non-parole period, the sentencing courts also effectively have a role in parole decision making. The court may choose to impose a sentence as a fixed term so there is no possibility of eligibility for parole.

Banality, Normalisation and CCTV

'The Banality of Security: The Curious Case of Surveillance Cameras' by Benjamin Goold, Ian Loader and Angélica Thumala in (2013) British Journal of Criminology takes a walk on the wild side with Mr Latour and Mr Debord,  asking -

Why do certain security goods become banal (while others do not)? Under what conditions does banality occur and with what effects? In this paper, we answer these questions by examining the story of closed circuit television cameras (CCTV) in Britain. We consider the lessons to be learned from CCTV’s rapid — but puzzling — transformation from novelty to ubiquity, and what the banal properties of CCTV tell us about the social meanings of surveillance and security. We begin by revisiting and reinterpreting the historical process through which camera surveillance has diffused across the British landscape, focusing on the key developments that encoded CCTV in certain dominant meanings (around its effectiveness, for example) and pulled the cultural rug out from under alternative or oppositional discourses. Drawing upon interviews with those who produce and consume CCTV, we tease out and discuss the family of meanings that can lead one justifiably to describe CCTV as a banal good. We then examine some frontiers of this process and consider whether novel forms of camera surveillance (such as domestic CCTV systems) may press up against the limits of banality in ways that risk unsettling security practices whose social value and utility have come to be taken for granted. In conclusion, we reflect on some wider implications of banal security and its limits.

The authors conclude

Two overarching purposes have informed the writing of this article. In the first place, the paper is intended as a contribution to the development of what, following Bruno Latour (1992a), we can call a symmetrical sociology of security. By attending fully to the role of things in determining ‘our behavior and identity’ (Miller 2010: 51), we hope to bring taken-for-granted aspects of security—notably the ‘industrial market’ for security technology (Brodeur 2010: 304)—more fully under the scholarly and public gaze.19 In so doing, we want to expand further the horizons of theoretical and empirical enquiry into private security, the bulk of which still addresses itself to and gets most animated by those elements of the industry—uniformed guards—who look and feel like police officers, a point made recently by Jean-Paul Brodeur (2010: 140). We have done so by focusing on one of the mundane objects that is mobilized in security practices and analysing the part this object plays in the ordering of everyday experience. Our wider point is that, if objects are ‘congealed social relations’ (Neyland 2010), we can learn a great deal about social life from the study of security objects or objects that have been securitized—in the present case (surveillance) cameras.

Second, and more importantly, we have used the case of CCTV to introduce and illustrate the idea of banal security. Today, any mobilization of the concept of banality inescapably takes place in the long shadow cast by Hannah Arendt’s (1963) analysis of the ‘banality of evil’, the phrase she controversially coined to describe the unthinking, rule-following, normality of the acts committed by Nazi war criminal Adolf Eichmann. The idea of banality has also made sporadic appearances in the critical theory of consumerist society, where it is typically deployed to depict the ‘meaninglessness and insignificance’ of modern consumer culture (Seigworth 2000: 231). Guy Debord, for example, used the term ‘banalisation’ to describe ‘the accumulation of commodities produced in mass for the abstract space of the market’—a process which he thought had ‘destroy[ed] the autonomy and quality of places’ (Debord 1967: Chapter 7, s. 165). In America, Baudrillard wrote in similar terms about the ‘desert-like banality of a metropolis’ (Baudrillard 1988: 102). What these analyses share in common is the deployment of what we might call a pejorative concept of banality, one that expressly or implicitly intimates a critical relation to and judgment upon the process, acts or objects being described as banal (cf. Hilton 2008).

Our use of the term ‘banality’ is not pejorative in this sense. Rather, we have shown that the banality of security is a double-edged notion, and that analysis of it has to attend closely to both its virtues and vices. If security ‘means being able to assume that day-to-day, moment-by-moment human planning can go forward’ (Molotch 2012: 3), then part of what it means to be and feel secure is a taken-for-granted confidence in the human and non-human infrastructure that makes our personal and collective projects feasible. If part of what it means to be and feel secure is about not having to fret over or routinely monitor the arrangements that secure one’s security (Loader and Walker 2007: Chapter 6), then something akin to banality may be a constitutive feature of what security is as a basic social good. Yet, making the things that secure us banal is also to create the conditions for undermining that security. Goods that have become banal find it easier to expand in ways that can trump other societal values, not in an active and noisy political way, but through a barely detectable process of creep. By making goods banal, we fail to notice the ordering work that they do and hence neglect to ask whose interests such work serves and what alternative modes of ordering the ubiquitous, taken-for-granted good has elbowed or crowded out. If the objects that constitute a society’s security arrangements become banal, they are placed beyond inspection, reflection, contestation and debate in ways that are inimical not only to security, but also to the quality and reach of democratic governance. Camera surveillance is an apt illustration of this. By becoming banal, CCTV cameras have come to govern us, while largely effacing the question of how we might (best) govern them.

Against this backdrop, it is hard, right now, to determine what impact, if any, the reservations about novel forms of CCTV we described in the preceding section may have on the future trajectory of camera surveillance. Two broad sets of possibilities suggest themselves, however. The first is that these concerns serve as but a small stumbling block on the forward march of a security good that has long since become mundane and uncontested. We need to recall here that not dissimilar objections were raised at earlier points in CCTV’s path to ubiquity, only to be overcome or brushed aside. We might infer from this history that, as people grow accustomed to what are currently experienced as unsettling extensions of camera surveillance, it is likely that these concerns will over time dissipate, or else be banished to the margins of public debate. On this scenario, CCTV is simply too entrenched as a good with obvious benefits and non-obvious dangers for the worries raised about its latest usages to be little other than minor teething troubles. To this we might add a point we made earlier in our reconstruction of CCTV’s diffusion: namely that these extensions of surveillance are taking place within, and are of a piece with, a wider cultural context in which the capture and circulation of people’s images are becoming commonplace and unremarkable. Camera surveillance has, in short, acquired a set of social meanings that are so pervasive and stable that novel—if currently controversial extensions—of it can all too easily be brought under the umbrella of its banality.

But an alternative scenario may also be prefigured in these accounts. The possibility here is that the anxieties provoked by, and the values revealed to be at stake in, novel extensions of CCTV may represent, or be made to represent, a critical juncture in the social life of surveillance cameras. At the very least, one can point to the existence of a reservoir of cultural concerns which can be drawn upon in an effort to unsettle the stable meanings that have become attached to camera surveillance; to reopen the range of questions that CCTV’s banality has foreclosed, and to reinsert matters pertaining to the scope, uses and effects of surveillance technology into public and political discourse about crime and its regulation. One might, in this vein, treat the worries we have reported either as resources for regulation, or as raw materials for politicization. In respect of the former, these concerns allude to a set of values (notably privacy and trust) that need to be more fully incorporated within any discussion of how best to govern future uses of camera surveillance. In respect of the latter, these issues might be folded into a larger effort to create a deliberative politics of security that extends beyond the state to encompass both private security actors and the array of security technologies that govern the conduct of everyday life today—of which CCTV is a prominent case in point. This may or may not lead to a ‘politics of retraction’ of which Gavin Smith (2012) claims to have glimpsed the first sightings. That would be a matter for such a deliberative politics, not a guaranteed outcome of it. What is rather more urgent and important is to foster and sustain an intelligent and reflective public conversation about camera surveillance of the kind that has been lost sight of in the course of CCTV’s three-decade-long journey to banality.

In the absence of such a conversation, British society has tended to forget in the case of CCTV the general point that Daniel Miller makes in, and about, Stuff. ‘Commodities’, Miller writes, ‘are not inherently good or bad, but you can’t have the benefits without entailing the risk that they will oppress you’ (Miller 2010: 63). One good reason for wanting to cultivate a public dialogue about CCTV, in the face of extant political inertia and commercial interests who have little or no interest in doing so, is the following one, also supplied by Miller: ‘The good news is that awareness of this gives one an opportunity to address this contradiction ... with some potential for moderation’ (Miller 2010: 63). This, we suggest, is a lesson it would be wise, in respect of surveillance cameras, to relearn.

Plant Genes and Biocolonialism

'Are All Genes Equal?' by Samantak Ghosh in Boston University Journal of Science and Technology Law comments

After years of public debate, the Supreme Court recently invalidated patents on human genes. The Court's opinion did not consider the patent-eligibility of biological products from other sources like bacteria and plants, or other non-genetic biological materials. Yet, given the unitary nature of the patent law, the ruling will have broad implications for the patentability of all biological products, human or non-human, genetic or non-genetic. But do these other biological products raise the same concern as human genes? This paper explores these questions and also seeks to examine their relevance through a survey. The survey indicates that people are more opposed to patents on human genes than to patents on genes from lower species. Likewise, the survey finds that people are more opposed to patents on human genes than to patents on human non-genetic materials. These distinctions have been largely ignored by courts and commentators. But the significance of these issues cannot be overstated. As the dust settles on the debate over the patenting of human genes, new questions about the patent-eligibility of other biological products are springing into life, and these considerations provide a richer context to these discussions.

Ghosh argues that

Of course, the public unease with human gene patents may be further exacerbated by some mischaracterizations of the rights conferred by patents. Some have compared gene patent ownership with slavery, or suggested that gene patent owners can do whatever they want with our genes. These misleading suggestions coupled with the media hype may have contributed to a greater sense of apprehension about gene patents than warranted.

Whatever be the concerns that led to an overwhelming opposition to human gene patents, it is quite clear that many of these concerns are much attenuated, or even nonexistent when we consider biological products from other organisms. Neither can human beings claim some possessory rights to biological materials from non-human sources, nor is there a concern that patents on these products may impact access to human diagnostic tests. While animal rights activists may still argue for a greater recognition of dignity of animals, these claims get decreasing moral stridency as one goes down the species chain to lesser evolved species like plants and bacteria. Thus, it is not surprising that the greatest difference in the measure of support for gene patents is observed between those of human and bacterial genes.

Similarly, the difference in public opinion between human genetic and nongenetic materials can be explained by the fact that genes are deemed special. There is a greater sense of value or respect associated with human genetic materials than nongenetic materials. Genetic exceptionalism is understandable. Genetic information is unique in its capacity to simultaneously identify individuals separately and relationally. On one hand, DNA finger-printing is routinely used in solving crimes by identifying individuals, and on the other hand, genetic information from individuals very often implicate relatives, and in some instances, even ethnic groups. The longevity and multi-generational characteristics of DNA also lends to its unique status among natural products.

For lower organisms, while DNA still retains its aura as a fundamental molecule of life, it does not raise many of the concerns implicated by human genetic information. For instance, privacy interests are very modest if not virtually non-existent for nonhuman species. This may explain why we do not observe a statistically significant difference in the opposition between genetic and non-genetic materials for lower organisms.

An appreciation of these distinctions helps us understand why a case involving human gene patents is a questionable vehicle for developing a doctrine on the patenteligibility of all natural products. As the survey shows, human gene is an exceptional biological product, both because it is a human biological material and a gene. After all, it is often said, “[H]ard cases make bad law.” Even Glanville Williams who questioned this over-used legal maxim was “certain [] that cases in which the moral indignation of the judge is aroused frequently make bad law.” Just like the common man, it is possible that the Justices’ moral outrage over the question of patenting human genes— although it found no expression in the Myriad opinion—may have exceeded by their concern over patents on other biological products. As Justice Holmes, so eloquently put it,

Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.

The Myriad gene patents case undoubtedly carries a number of elements that could appeal to human feelings. Indeed, the very fact that it was such an emotive issue may explain why amongst so many patents on so many different biological products, the case that ultimately got challenged covered patents on human genes.

Finally, and perhaps more importantly, a nuanced understanding of these underlying policy considerations may enable us to avoid the pitfalls of over and underinclusiveness that appears to be a point of disagreement on patentable subject matter.

Instead of letting these issues lurk in the shadows of the dominant utilitarian concerns of innovation we need to bring them to the forefront for they may provide us a richer understanding of the concerns surrounding these patents. By bringing more granularity to the picture, they may help us parse out the universe of biological products and facilitate a more tailored approach. Particularly, where the empirical evidence is unclear these factors may be weighed in to influence legislative efforts on categorical patentable subject matter exclusions.

Public moral perception shaping patent law is not a radical notion. The American patent law contains a number of restrictions on patent-eligibility and the scope of patents that are primarily based on moral judgments, rather than their impact on scientific innovation. For instance, concerns about the harmful effects of patent incentive and disclosure of nuclear weapons technology lead Congress to ban patentability of such innovations in 1954. Moral objection over the commodification of human beings was similarly instrumental in the incorporation of the “Weldon Patent Ban” into patent law, under which “no patent may issue on a claim directed to or encompassing a human organism.” The exception in patent law that health care providers cannot be held liable for the infringement of medical procedure patents is another example where ethical concerns expressed by the medical community forced the Congress to limit the scope of patent enforcement.

Interestingly, in a debate over the patent-eligibility of biological products obtained from lower organisms, this study could provide ammunition to both opponents and proponents of patents. Opponents could point out that public opinion weighs against the granting of these patents. On the other hand, proponents of these patents may rely on the fact that people are less opposed to these patents than to patents on human genes. Besides, they could argue that public opinion is just one of the relevant factors, and should be considered in conjunction with the incentivizing effect of patents, and the absence of evidence of these patents adversely impacting future innovation or healthcare access.

Given Myriad’s unclear guidance on this question, these debates are likely to play out in the future. This paper hopes to provide a richer context to these future debates over the patent-eligibility of natural products by providing another vantage point from which to explore these questions. ...

“The myopic viewpoint thinks of a human gene as merely another chemical compound, composed of various bases and sugars. But history and science teach us otherwise.” Human genes occupy a special status in our society, thereby raising special concerns over their monopoly. Whether this status and the concomitant concerns are justified or not is another question. But given Myriad’s potential of invalidating many more patents than just human gene patents, it merits asking whether the same concerns that elicited public disconcert over human gene patents are relevant to these patents over other biological products. This paper examines these questions and their implications. The significance of these issues cannot be overstated. As the dust settles on the debate over the patenting of human genes, new questions about the patent-eligibility of other biological products are spurring to life.

'Commercialization of Genetic Resources: Leveraging of Ex Situ Genetic Resources to Shape Downstream IP Protection' (University of California Hastings College of the Law Research Paper No. 56) by Dana Beldiman suggests that

Ex situ collections that hold genetic materials operate as contractual points of articulation between countries of origin and recipients and/or prospective developers. In that capacity, collections are in a position both to negotiate clarification of Convention on Biological Diversity obligations and, by virtue of their control over biological materials, to impose IP-related conditions on recipients.

This paper proposes the concept of a "rebundling" of IP rights: the prospective patentee would relinquish its entitlement to full exclusivity under patent law, in exchange for freedom to operate from a patent perspective plus access to other material recipients' technology. The "rebundling" could take the form of a patent pooling arrangement and would give multiple players a chance to participate in the market.