Is TPP To Blame For The Continuing Delay In Passing New Zealand's 2008 Bill That Excludes Software Patents?

from the beginning-to-look-suspicious dept

As Techdirt reported a couple of years ago, a hard-fought campaign in New Zealand to prevent software patents being granted there seemed to have paid off, with a Patents Bill explicitly excluding them that came with the following commentary:

We recommend amending clause 15 to include computer programs among inventions that may not be patented. We received many submissions concerning the patentability of computer programs. Under the Patents Act 1953 computer programs can be patented in New Zealand provided they produce a commercially useful effect. Open source, or free, software has grown in popularity since the 1980s. Protecting software by patenting is inconsistent with the open source model, and its proponents oppose it. A number of submitters argued that there is no "inventive step" in software development, as "new" software invariably builds on existing software. They felt that computer software should be excluded from patent protection as software patents can stifle innovation and competition, and can be granted for trivial or existing techniques. In general we accept this position.

But that victory may turn out to be hollow:

Despite having been in the Parliamentary process since 2008, the Patents Bill still languishes well down in the Order Paper (No 47 as at Monday April 2), and is awaiting Parliament’s consideration of the Commerce select committee’s report, followed by the Bill’s second reading.

Although New Zealand's Commerce Minister Craig Foss tried to explain this delay in terms of "the size and complexity of the Bill and the pressure of other legislation," there is a growing concern that something more sinister is happening:

there have been rumours that the Bill has been deliberately held back as potentially relevant to concessions that may be made as part of the Trans-Pacific Partnership trade agreement.

Foss's staff passed that part of our query on to Trade Minister Tim Groser’s office. Groser did not directly address the rumour and replied simply: "Progress on the Patents Bill is dependent on the wider legislative programme."

The TPP agreement is believed to require signatories to grant software patents. If the New Zealand government passed the Patents Bill in its current form, and then signed up to TPP, it would be faced with the prospect of needing to amend the legislation almost immediately -- and to justify its actions to the New Zealand public. The fear is that the current delay is so that it can sign TPP and then claim that it is "obliged" to remove the exclusion on software patents, before passing the Patents Bill.

If that happens, it would be an appalling example of how international trade agreements like TPP, drawn up behind closed doors with no input from the public, can then be used simply to override the democratic decisions arrived at through long and careful national debates.

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Filed Under: new zealand, software patents, tpp

UK Judge Attracts Libel Tourists With $775k Award To New Zealand Cricket Player Over Defamatory Tweet

from the twibel-tourism dept

The UK has become famous for its overly aggressive libel laws and how they lead to libel tourism, with people from other countries running internet libel cases through the UK to take advantage of the favorable laws. Add to that the rise of Twitter, and questions about Twitter libel, and you've got an interesting legal situation to deal with. THREsq reports that perhaps the UK is now about to become the hotspot for "twiibel tourism" after it awarded $775k to a New Zealand cricket player, Chris Cairns, after the ex-chair of the Indian Premier League, Lalit Modi, had tweeted "Chris Cairns removed from the IPL auction list due to his past record in match fixing. This was done by the Governing Council today." The news report doesn't say if this is true or not, but the full ruling suggests there isn't enough evidence to support the claim.

Even if we accept that the accusation of match fixing is, indeed, false, there are still questions about jurisdiction and the size of the award -- made even more pressing considering how few people actually saw the tweet. From the court ruling:

The original Tweet was received by only a limited number of followers within England and Wales. One expert calculated that they numbered 95, the other 35. The parties have sensibly agreed that I should take the figure of 65. The second publication, to Cricinfo was on their website only for period of hours. The expert's figures for numbers of readers of this publication are respectively 450 and 1500. I shall proceed on the basis that about 1000 people read the second publication, which I have found carried the less grave but nonetheless serious meaning that there were strong grounds for suspecting that the claimant had been involved in match fixing. In respect of the second publication I also bear in mind that Cricinfo have settled with the Claimant, paying him £7,000 damages and a further sum for costs.

And yet the court still decides that the harm is so great that Modi should be hit with massive damages. All this is going to do is ensure a flood of such cases in the UK.

Filed Under: chris cairns, cricket, defamation, india, lalit modi, libel tourism, new zealand, tweets, uk

Procedural Error By Law Enforcement Means Restraining Order On Kim Dotcom 'Null And Void'

from the oops dept

We've already seen that the claims made by law enforcement in the indictment against Megaupload has raised significant legal questions, as they seemed to assume all sorts of things not necessarily factually-based. Part of that overreach resulted in a New Zealand judge granting Kim Dotcom bail despite US authorities insisting that the court keep him locked up. Now things are getting even worse, as a court has declared the restraining order issued in the case as "null and void" and having "no legal effect" after law enforcement admitted to making a significant series of procedural errors. The end result may mean that everything seized from Dotcom -- including his money, cars and other goods... may need to be returned.

The police apparently realized this and tried to apply for the proper restraining order after the fact, explaining to the judge that they had made five specific errors in the initial application. The judge is now figuring out what to do and whether or not this means that the government needs to return Dotcom's property. Of course, there's a good chance that the judge will allow the government to continue to hold the property and admit merely that "mistakes were made" and that they've now been corrected. However, given how many mistakes we've already seen in this case -- and the apparent carelessness with which so much of it happened -- it leads you to wonder how many other "errors" or shortcuts law enforcement in both New Zealand and the US took in bringing this case forward.

It's no secret that Dotcom's larger-than-life persona has been an easy target in the attacks on Megaupload, but it's beginning to appear that law enforcement assumed that just because the guy is an obnoxious show-off with a criminal past that it didn't need to actually follow all the rules in bringing a case against him this time. That's not how the judicial system is supposed to work.

Filed Under: kim dotcom, new zealand, procedural errors, restraining order
Companies: megaupload

Kiwi Musician Says Public Domain Only Exists So You Can 'Rip Off Dead People's Works'

from the someone-send-him-a-copy-of-james-boyle's-book dept

Here's a brief article from New Zealand, which suggests that part of the US's proposal for the TPP agreement is to extend copyrights across the various participating countries to life plus 70 years -- what it already is in the US, but 20 years longer than it is in many countries. That's not too surprising. However, what struck me was a quote from New Zealand musician Ray Columbus who appears to be in favor not just of extending copyright, but of wiping out the public domain entirely:

"Some people believe in public domain. Why? Just so you can rip off dead people's works? That's pathetic."

No, Ray, what's pathetic is not knowing how culture works, and the importance of building on those who came before. Having never heard of Ray Colombus, I decided to look around -- and lo and behold, it appears that in his younger days Columbus recognized this. An interesting bio of Columbus reveals that his band, Ray Columbus and the Invaders, was originally a cover band who copied their dance moves (and, yes, as crazy as it seems, dance moves can be covered by copyright) from American servicemen on leave in New Zealand. Oops.

Other bios note how strongly he was influenced by other artists, such as Elvis, Cliff Richard and the Beatles. His one big hit, She's a Mod, is a cover song. Yes, it was licensed, but apparently the changes they made to the song were basically to copy things from the Beatles. And that's fine, because the fact is, people build on culture. It's not just about "ripping off" others. So it's rather hypocritical of Columbus to decry others for the same practice.

What it comes down to is that poor Ray Columbus seems to think copyright is a welfare system because he apparently failed to invest wisely or plan for retirement:

When 60s pop star Columbus suffered a stroke nearly four years ago, he was able to pay the bills because every time a song he has performed gets played, he still collects a fee.

"The performing fees I get give a dribbling of an income that's so important to artists."

How is that fair compared to most other professions? The bricklayer who has a stroke isn't able to pay the bills because by collecting a fee every time someone uses a building he built. No, the bricklayer and pretty much everyone else in every other profession has to actually save money and plan for their future. What makes Columbus so special that he gets to skip over that part?

Filed Under: copyright, inspiration, new zealand, public domain, ray columbus, tpp

Kim Dotcom Gives TV Interview Where He Insists The Charges Against Him Are A Joke

from the making-his-case dept

While Kim Dotcom is out on bail in New Zealand, he gave an interview to a New Zealand TV station. You can watch it below or read the transcript at the previous link: Generally speaking, if you're facing criminal charges, it's probably not a wise idea to give public interviews to the press, and I don't see how doing this helps him in any way. He more or less lays out his expected argument concerning the copyright infringement claims, which are pretty much what you'd expect: that they followed the DMCA, took stuff down on request, and even gave copyright holders special access by which they could take links down themselves. Dotcom is clearly very well versed in the legal issues here, and he's choosing his words extremely carefully, but it still seems a bit silly to reveal such arguments outside of court, and it could come back to haunt him later (you can bet US prosecutors are pouring over every word to figure out what they can hang him on.

Also, while the interview focuses on the copyright issues, it avoids the key part of the charges, which is the criminal conspiracy issue. Obviously, those are built off of the copyright claims, but just fighting the copyright claims and ignoring the conspiracy charges is unlikely to be a winning strategy.

One key point he raises in the interview is the fact that, despite being in business for seven years, no MPAA studio ever took any legal action against them other than sending DMCA takedown notices which he claims they obeyed (the indictment suggests that Megaupload didn't necessarily have the greatest record on following takedowns):

JC: CNET, in an article that looked pretty well researched to me and well sourced said, and I quote, “among the copyright owners who’ve accused Megaupload of piracy, including software and video game companies none of them presented the FBI with more, quote, significant evidence, end quote, about Megaupload than the MPAA. Did any members of the MPAA come to you and say “we have concerns, Kim, about what’s going on in Megaupload”.

KD: Never. And I gotta tell you this – if you are a company that is hurt so much by what we are doing, billions of dollars of damage, you don’t wait and sit and do nothing. You call your lawyers and you try and sue us and try to stop us from what we are doing.

JC: So a cease and desist of some form or other. Did you ever receive any letters from members of the MPAA saying “the latest James Bond film is being exchanged, ad infinitum, through Megaupload, you must stop it”? Did you ever receive…

KD: Absolutely not. No legal document has ever reached us from any of these studios. The only thing that we get is Takedown Notices and them using the direct delete access on our website. So, isn’t it surprising to you that when I’m the pirate king and I’m causing all this damage that none of them has ever even attempted to sue us, to sue us for damages, you know? If you would run a business that loses billions of dollars because of me, you wouldn’t just sit there and do nothing. I mean, this investigation was ongoing for over two years, you know, the company was live for over seven years, the MPAA has always thrown names at us and called us all kinds of things but they’ve never actually done anything to you know, take us to court and for the very simple reason that there is a law in the US that protects us which is the Digital Millennium Copyright Act that protects online service providers from actions of their users and this is the same law that allowed Google to still exist, that allowed YouTube to still exist. You know that Viacom sued YouTube and YouTube claimed that they were protected by the DMCA and they won. And if you look at the YouTube case files, the emails that were exchanged internally we are a lamb compared to what was going on at YouTube at the time but these guys got away. They won their lawsuit and I’m sitting in jail, my house is being raided, all my assets are frozen without a trial, without a hearing. This is completely insane, is what it is.

Elsewhere he notes that he's an easy target because of his "flamboyant" past, but that, alone isn't illegal. But he also responds to the basic questions pretty clearly, noting that they can't proactively monitor the service, because (1) that's not required by law (2) it's technically impossible and (3) it could raise privacy questions under US law (that part might be a stretch, since the uploads weren't private, but public).

I still think there are serious problems with the lawsuit, but the case against him is a bit bigger than what he portrays in the interview, and he's going to need a much stronger defense if he's going to actually win the case.

Filed Under: bail, copyright, dmca, kim dotcom, kim schmitz, new zealand, privacy
Companies: megaupload

Megaupload Boss Kim Dotcom Granted Bail After US Fails To Prove He's Got Cash Stashed Away To Make An Escape

from the nice-try dept

Whatever you might think of Kim Dotcom (originally Schmitz), the founder of Megaupload, he at least deserves a fair trial. US officials had worked hard to keep him locked up without bail, but a New Zealand court has finally granted him bail after no one could show him having access to vast funds elsewhere that he could use to make a run for it. Apparently, US officials insisted that he must have those funds, but couldn't produce any evidence, and the court realized that's not a particularly good reason to keep him locked up:

In the North Shore District Court this morning, Justice Nevin Dawson said that after a long time where officials could investigate the Dotcom's potential access to funds - none of significance had been found. Justice Dawson said it was "highly unlikely" that he had other financial resources available to him that had not already been seized.

Prosecution acting for the United States Government had said that because Dotcom was "very wealthy" it was probably he had more bank accounts.

However, Justice Dawson said that put Dotcom in the position of having to "prove a negative" and that assertion was not enough to imply his flight risk.

Four new bank accounts were discovered in the Philippines, but they were empty, he said.

"The suspicion that Mr. Dotcom is very wealthy is not evidence of further assets and cannot be used against him."

I've certainly noticed attempts by many to try Dotcom based on his outward appearance or the fact that he clearly was a show off who flung money around. And I can understand that desire. But, any trial should be based on the actual facts against him, not the fact that he was apparently tacky and a showoff when he spent money. If that, alone, was a crime, then tons of famous musicians, movie stars and athletes deserve the same treatment.

That said, the conditions of bail include no internet usage, which (as we've noted in the past) is pretty ridiculous, since nearly everything touches the internet these days, including popular phone systems. It seems perfectly reasonable to say that he can't have anything to do with cyberlockers or Megaupload or such, but a complete internet ban seems extreme.

Filed Under: bail, kim dotcom, kim schmitz, new zealand
Companies: megaupload

What Exactly Makes A Pop-Up Mall A Pop-Up Mall? On Second Thought, Who Cares?

from the ownership-culture-gone-mad dept

One of the pernicious effects of once-obscure legal issues surrounding copyright and patents seeping into everyday life is the belief that even the vaguest ideas can be owned, and that such ownership is a thing worth fighting over. Here, for example, is a sorry tale from Christchurch in New Zealand, which suffered a massive earthquake in which 181 people died back in February of this year:

The City Mall Restart project is being threatened with legal action after being accused of copying a "pop-up mall" in London.

Director of the London Boxpark development Roger Wade emailed City Mall Restart organisers accusing them of a "blatant breach of the Boxpark intellectual property rights".

"Boxpark has now instructed legal action against the owners of City Mall – Pop Up Mall for intellectual property rights infringement," he said.

But City Mall organisers have hit back, claiming Boxpark was being "precious" and there were no similarities between the projects.

The threat could not have come at worse time for Christchurch organisers, with City Mall scheduled to reopen on Saturday, marking the first return of retail to central Christchurch since the February 22 earthquake.

And if, like me, you're wondering what exactly a "pop-up mall" might be – does it leap out of the earth as you approach, perhaps? - here's the basic idea:

The temporary shopping centre has been described as a "pop-up mall" made out of 60 shipping containers converted into 27 shops, including two cafes

> But the people behind the New Zealand pop-up mall claim there are key differences between this and the London pop-up mall:

However, he denied similarities between the projects, with the City Mall development divided into two horseshoe precincts while Boxpark was essentially a giant box with a cafe on the top.

"It will be very hard to say it's a copy because it doesn't look anything like Boxpark. The only thing that aligns these things together is they both use containers."

So the deep philosophical questions come down to these. Wherein lies the Platonic essence of a pop-up mall? Is the use of containers enough to generate the mall's pop-upness, or is their arrangement important too? And finally, and perhaps most importantly, is a world in which a city devastated by an earthquake has to worry about such things still sane in any meaningful sense?

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Filed Under: christchurch, earthquake, intellectual property, new zealand, ownership, pop up mall

As Countries Sign ACTA, Many Finally Admit Their Copyright Laws Will Need To Change

from the of-course-they-did dept

It will come as little news to most people that, as was expected, the US signed the ACTA treaty (while pretending it was an "executive agreement") this weekend in Japan. While the EU, Mexico and Switzerland at least had the sense to wait until they had more of a chance to review the legality of the document, the US dove right in, despite huge Constitutional questions about its ability to sign the agreement -- especially as more evidence was put forth showing that (contrary to the US's claims) ACTA is inconsistent with US law.

The US, of course, was not the only one to sign -- and not the only one to recognize that ACTA is inconsistent with local laws, despite promises to the contrary. Canada signed as well, and used it to say that Canada now needs to implement more copyright reform to keep Canada in line with the treaty:

Fast’s office said the government still needs to create and pass legislation to implement the anti-counterfeiting agreement in Canada.

Funny, since all along we kept hearing how ACTA wasn't about changing laws in various countries, but just coming to agreements on how enforcement would be carried out. In fact, when criticized about ACTA, the former Canadian Minister of Industry insisted that ACTA would not require changing Canadian law. Amazing that the Canadian government admits that this was false the day they sign it.

Another signatory? Why, New Zealand, of course. Last year, New Zealand (which already recently changed its copyright laws) said that it didn't foresee any changes to copyright law because of ACTA. And yet... now the New Zealand government admits that changes will be needed to local copyright law before the treaty is ratified.

Singapore, Australia, South Korea, Japan (of course) and Morocco also all signed on. Australia's and New Zealand's signings don't mean quite as much, as their legislatures need to ratify the agreement (the part the US is trying to skip).

Not surprisingly, the RIAA put out a ridiculous statement "saluting" the "will" of ACTA negotiators to complete ACTA. Yeah. The will to continue to hide the agreement from public scrutiny until it was "done" and no changes were allowed? The "will" to pretend that it's an "executive agreement" rather than a treaty, as per the Constitution? The "will" to insist that ACTA is consistent with domestic laws when it's not? Sorry. That's not worth saluting. That's worth not being allowed to participate in these kinds of negotiations any more.

Filed Under: acta, australia, canada, copyright, legal changes, new zealand, signatures, us

US, EU, Canada, Japan, Australia & Others To Sign ACTA This Weekend, Despite Legal Concerns

from the failure dept

Despite serious Constitutional concerns in the US, and significant legal questions in the EU, it appears that the US and the EU, along with most of the other participants in the ACTA negotiations are planning to sign ACTA this weekend in Japan. In the US, this may very well lead to a Constitutional challenge. President Obama, via the USTR, is ignoring the Senate's oversight concerning treaties, by pretending ACTA is not a treaty, but rather an "executive agreement." Pretty much everyone else agrees that ACTA is a binding treaty -- in fact, EU negotiators have been quite vocal on that point.

But even if this is considered "an executive agreement," the President does not have the authority to sign an executive agreement concerning intellectual property issues. Executive agreements can only be signed if they cover issues solely under the President's mandate. But intellectual property issues are clearly under Congress's mandate, and nowhere in the Constitution is the President given a mandate over IP issues. This is a clear end-run around Congress, and seems likely to be unconstitutional.

What I really don't get is why they're making such an end-run. As we've seen with things like PROTECT IP, most of the Senate seems to have no problem propping up the entertainment industry's legacy players with bogus laws and "greater enforcement." It seems likely that ACTA would probably sail through the Senate with little problem. But the administration seems to not even want to have the slightest debate on the topic -- which is greatly troubling, considering that the USTR negotiated the agreement in near total secrecy, refusing to allow public comment or debate (outside of leaks which it tried to block) until after the document was done.

The others that are listed as planning to sign the document are Japan, Australia, Canada, South Korea, Mexico, Morocco, New Zealand, Singapore and Switzerland. Basically all the countries who took part in the negotiations. The fact that Mexico is on that list is interesting, given that the Mexican Congress has already told the Mexican President that it will not ratify ACTA, and made it clear that Mexico needs Congress to ratify ACTA to have it go into effect. In other words, it sounds like Mexico is facing a similar executive run-around as in the US.

It's pretty amazing. This isn't even just about Presidents doing an end-run around the public, but around their own legislatures. And for what? A bailout of some legacy entertainment industry players who are unwilling to adapt.

Filed Under: acta, australia, canada, constitution, eu, executive agreement, mexico, new zealand, treaty, us, ustr

New Zealand ISP Boss Denounces Bad Copyright Law

from the good-for-them dept

While US ISPs apparently decided to capitulate to Hollywood (while the US government held a gun to their heads), at least some ISPs are speaking up about the ridiculousness of making ISPs copyright cops. The head of New Zealand's TelstraClear has denounced New Zealand's ridiculous new three strikes law.

“TelstraClear respects copyright and supports the ability of rights owners to realise value from their intellectual property. But a business model that has to be propped up by specific legislation in this way is flawed and needs to change,” Freeth said.

The new law will not help copyright owners defend their rights, he added. “It may encourage parents to take more notice of what their kids are doing online, and that’s a good thing. But it won’t stop those who really want content from getting it.”

Furthermore, he points out -- as we have over and over again -- that the way to deal with infringement is to actually compete and provide customers with what they want:

Freeth says that a 2009 TelstraClear survey showed that customers who download copyright content were not only “tired of paying too much, and waiting too long”, but viewed physical distribution models as outdated and out-of-touch.

“These are the opinions of the ‘now’ generation, and the growing population that has never experienced the world without a TV, the internet, and the freedom this offers,” he says.

“New Zealand’s distance from the source of much content has been conquered by online access, but simply making it available online while retaining old price structures and wait times doesn’t work.”

Separately, the study showed that there are ways to "compete" with unauthorized access, such as by "building a stronger direct connection between the artist and end-user to reduce the old-world overheads and online purchase price." Gee, where have we heard that before?

Filed Under: copyright, new zealand, three strikes
Companies: telstraclear