GENL2021 – Introduction to The Australian Legal System – My Lecture Notes

I try my best to be accurate, but I would not be surprised if I have made some errors here. Also this post is still a work in progress and I’ll be making changes.

Week 1 & 2

Historical Origins of The Australian Legal System

• Common Law Legal System
  • Australia has a “Common Law Legal System”. The main feature of this that separates it from other Western legal systems is the degree that it relies on precedent (through the doctrine of precedent). Under this system laws either come from Parliament, called legislation, or Courts, called case law or common law.
  • I’ve come to realise that its not enough to just follow just the legislation as cases can provide extra details and insights into the legality of a matter. Furthermore you can rely on these precedents in court (although it seems they can go back on their decisions and make new precedents to override old ones, as seen with [2009] HCA 14.).

  • Institution	Laws	People
    parliament	statute law	members of parliament
    courts	common law	judges (most courts)/magistrates (in the local court)

  • Barristers are the ones in court arguing a case, eg. in litigation. Solicitors are the people you usually go to see first. They can arrange a barrister, draft wills, give legal advice, etc.
• Norman Period
  • Australian Law stems from English law. English Law started out in the Norman Period.
• Feudalism
  • It is a hierarchy where the king is at the top. The king own all the land and leases it out. This goes down a few levels where at the bottom you have people who are allowed to use the land if they share their crops and provide military service if necessary.
  • 
• Trials by Ordeal and Trials by Battle.
  • Relied on “divine intervention” to determine the verdict.
• The Writ System (court orders…)
  • Lead to Equity.
• Equity -> eg. forced to comply with the contract.
• Constitutionalism -> Can be thought of as ‘guidelines for government’
• Magna Carta
  • Just an old document. But an important clause was that no one could be detained without being charged, and right to trial.
  • allowing appeal against unlawful imprisonment.
  • Includes,
    • A right that a person can seek relief from the unlawful detention of him or herself, or of another person.
• Westminster (Parliament)
• Monarchy <-> Republic
• House of Lords/House of Commons (Upper House/Lower House)
• Parliament
  • Legislative Arm -> Creation of laws
  • Executive Arm -> Administration of laws
• The Bill of Rights 1689
• Non-Partisan – Not affiliated with a political party
• Security of Tenure of Judges – Protects from external pressure. ie. contractual right not to be sacked without just cause.
• Trial by Jury
  • Originally (ages ago in England) the jury were locals, now they are impartial (and so are the judges) which means that they have no prior knowledge of the case.
• Saxton’s introduced compensation into the law

Week 3

Rule of Law

The rule of law had origins in the Magna Carta but its not what we now consider “the rule of law”.

The key theme of the Rule of Law is everyone is subject to the law.

Eight Ways to Make Law Fail (based on the allegory concerning Rex):

• Failure to publicise law
• Obscure law
• Retroactive law
• Contradictions in the law
• Unable to comply with the law
• Unstable daily amendments to the law
• Differences between rules/laws as announced and their administration

However at least some of these (if not all) are not law themselves. They are not in the constitution so there is nothing stopping a government from creating say retrospective law.

Law, Land & Society Before 1788

Terra Nullius is a term used to describe be land belonging to no one. The British belied Australia to be Terra Nullius as they did not see the land as having an established legal system.

Week 4

Types of Legal Systems

• Common Law
  • Adversarial System (this is the type of procedure practised in common law courts)
    • “relies on the skill of each advocate representing his or her party’s positions and involves an impartial person, usually a jury, trying to determine the truth of the case.” (Wikipedia.org, Adversarial System)
    • Mostly done orally in the court room.
• Civil Law
  • “The Code”
  • No precedence (so there is no case law)
  • Inquisitive System (this is the type of procedure practised in civil law courts)
    • “has a judge (or a group of judges who work together) whose task is to investigate the case” (Wikipedia.org, Inquisitive System)
    • Mostly done through written submissions to the judge.
  • Judge actively steers routes of evidence investigation (compared with a common law system where the lawyers do this).
  • No jury (mostly).
• Communist Law
• Religious Law
• Customary Law
  • eg. Aboriginal customary law
  • Never written down

These legal systems “supposedly” all have the same aim.

Separation of Powers

Kept separate to balance power of any one:

1. Legislative Arm (Parliament)
   • Amends/Creates Laws
2. Executive Arm
   • Administrate Laws/Initiating Laws/Enforce laws
   • Government Departments, Governor General, Police…
3. Judicial Arm
   • Courts/Judges (High Court…)
   • Interpret laws

Jurisdiction is the power of a court to exercise judgement.

Three different types of jurisdiction,

• State vs. Federal
• Original vs. Appeal
• Civil vs. Criminal

Week 5

Federation and Laws Made By Parliament

• Australia Act 1986 (ie. federation) (according to the constitution) stipulates the number of senators and the distribution among the states.
• It was not until the UK passed their statues did Australia become legally a federation.
• Senate (Upper House) -> Scrutinise Bills
• House of Reps (Lower House) -> Draft/Introduce Bills

To get voted into the senate you need 1/6 + 1 of the votes. Once you reach this quota extra votes that would be used on you are distributed to the voters other preferences. Senators are only up for election every two elections (usually).

• Senate -> Representative of the State
• Reps -> Representative of the Country (Although its a little more detailed as they are really representative of the electorate. Because of this you can have a party with 49% of the votes but still get no members into the house of reps.)

We generally get lots of independents in the senate because people rarely vote 1. Labor 2. Liberal. If someone supports party A where B is A’s greatest competitor, most people will usually not vote for their opposition as 2, so they sometimes put some independents (remember once the quote is met, surplus votes are redistributed (either as the voter order their preferences, or if not chosen by the voter, how the party chooses)).

• With regards to politicians voting on bills, a Conscious Vote is crossing the partly line (or whatever the party decided on how they would vote) vs. a Party Vote  where you (the politician) vote as your party does regardless on what you think.

Preferential Voting ensures a strong 2 party system.

Passing a Law: (Repeated for each house)

• 1st Reading
• 2nd Reading – Purpose of the bill (Sometimes used by lawyers to interpret the law).
• 3rd Reading

The Australian Constitution stipulates which matters the Commonwealth have power to make laws over and which the states have power.

Week 6

Laws Made By Courts & Precedent

An indictable offence is one where you can go to prison over it.

A case begins in the local court with committal proceedings, except for the more serious cases which begin in the supreme court. But there are some exceptions, for example certain constitutional cases will go straight to the High Court.

The different courts are listed http://www.austlii.edu.au/databases.html, although the list is not complete as you also have local courts in most states.

Local court -> District Court -> Supreme Court -> High Court.

Hierarchy of the Australian Courts

• If you don’t like the decision make by one court you can appeal to a higher one.
• For a matter to be heard in court there must be “reasonable prospects of success”.
• Civil matters claiming over $750 go straight to the supreme court.

In a criminal case beyond a reasonable doubt must be established, this is not the case in civil cases.

Because we have a common law legal system (adversarial), “the judge can only make a decision about what was herd in court and cannot make any other inquiries about the case”1.

“A judge will usually order that the costs of the successful party be paid by the unsuccessful party.”1

• Ratio decidendi
  • reason for judgement.
  • meaning “the reason” or “the rationale for the decision.”
  • Unlike obiter dicta, the ratio decidendi is, as a general rule, binding on courts of lower jurisdiction—through the doctrine of precedent.

• Obiter dicta
  • is a remark or observation made by a judge that, although included in the body of the court’s opinion, does not form a necessary part of the court’s decision.
  • statements constituting obiter dicta are not binding (meaning cannot be used as argument for a precedent), although in some jurisdictions, they can be strongly persuasive.

• The High Court is the final court of appeal in Australia in matters of both State and Federal.
• Must rely on a precedent in a higher court (which implies that the precedents set by the high court are binding in all other courts).
  • BUT the Full Court of the High Court is not bound by previous decisions made by the High Court, so the High Court can overrule itself.
  • The Full Court of the High Court means all the judges (there are 7 and they are called justices) sit in and vote on the case, rather than just one judge per case.
• The full court of the Federal court means at least three judges sit in.
• Try mostly have an odd number of judges as when making a decision on a case, the majority prevails.
• If you don’t like the precedents try to find differences that can distinguish the cases.
• If no precedent, you can look at obiter dicta, or you can look into other jurisdictions (these are not binding but can be persuasive).

Week 7

The Legal Profession

Barristers and Solicitors are distinct parties. They have different roles and have no relation. “Solicitors have more direct contact with the clients, whereas barristers often only become involved in a case once advocacy before a court is needed by the client. Barristers are also engaged by solicitors to provide specialist advice on points of law. Barristers are rarely instructed by clients directly (although this occurs frequently in tax matters). Instead, the client’s solicitors will instruct a barrister on behalf of the client when appropriate.” (Wikipedia.org, Barrister)

In Australia Barristers are always sole traders. The research for a case is done by the solicitor who gives a brief to the barrister before they appear in the court.

Attorneys are much the same as Solicitors. The term Attorney is used more commonly in the US.

Week 9

Adversarial System

Alternative Dispute Resolution (ADR)

• Negotiation
  • Informal
  • Voluntary
  • Both parties meet privately and try to work out a resolution without needing to go to court.
  • Can lead to a settlement.
  • Private. Unlike adjudication which is public. Companies that don’t want the media attention that may come from a court case, make take this option.
  • Quick
  • Cheaper than adjudication
  • One negative for the public is that no precedent is set, so little people cannot rely on large corporations to set the precedents for them.
• Mediation
  • Less formal that adjudication.
  • Voluntary
  • Mediator is present
  • Outcome only accepted when both parties agree to it
  • Individual may feel in control of the matter rather than their lawyer.
  • Business relationships can be maintained
• Conciliation (only for some courts)
  • Mandatory
  • Mediator present, but cannot enforce/make a decision on the outcome
• Adjudication
  • • Can be lengthy taking from months to years.
  • Arbitration
  • Tribunals
  • Courts
• Legislation
  • The government changes the law to make a certain dispute clear.

This is very much a scale. At the top the parties very much are in control of the outcome. Whereas at the bottom they don’t have much control at all of the outcome (so long as the system is not corrupt). The top is informal, wheras the bottom is formal. At the top things are by agreement, whereas at the bottom things are much by imposition.

Other Legal Institutions

• Tribunals are set up by laws.
• They are like courts but are less formal.
• Unlike courts the strict doctorine of precedent does not apply to tribunals.

The Administrative Decisions Tribunal (ADT) is one such tribunal (they are is the NSW jurisdiction). The Administrative Appeals Tribunal is another tribunal (federal jurisdiction). As per their website “The Administrative Appeals Tribunal (AAT) provides independent review of a wide range of administrative decisions made by the Australian government and some non-government bodies. The AAT aims to provide fair, impartial, high quality and prompt review with as little formality and technicality as possible. Both individuals and government agencies use the services of the AAT.”

In most cases if you are unhappy with the tribunals decision you can appeal to a court, although there are conditions on this. For example as stated on the AAT’s web site “If you disagree with the Tribunal’s decision you may appeal to the Federal Court on a point of law. This means that the Court can only hear an appeal from the Tribunal decision if you or your adviser believe the Tribunal made a mistake in law in deciding your case. Because there are many rules about Federal Court appeals you may wish to get legal assistance.”

Week 10

Contracts and Torts

Contracts

• A contract is an agreement that is enforceable through the courts.
• Contracts can be written or verbal, but written contracts are easier to prove.
• For a contract to be valid there must be, (i.e. otherwise the contract is void, meaning its not legally binding)
  • An intention by the parties to be legally bound by their promises,
  • agreement by the parties on the terms of the contract,
  • consideration from both sides.
• If the parties do not intend for a contract to be legally binding and there is agreement on that then the courts will honour this. (See Rose and Frank v Crompton [1923] 2 KB 261).
• When not expressly stated the courts will presume that, (but this can be rebutted, see Wakeling v Ripley (1951) 51 SR (NSW) 183)
  • social, family or domestic agreements are not intended to be legally binding, and
  • commercial agreements are intended to be legally binding.

Agreement of a Contract

• As mentioned for a contract to be valid it must have agreement by the parties.
• Offer and Acceptance
  • An offer is made by one party, and if accepted by the other, then the contract has agreement. (I think that means, if you make an offer they say okay, you cannot go back and not be bound by the contract.)
  • An “invitation to treat” is not an offer.
  • Lapse of an offer
  • Acceptance
    • Silence is not acceptance (Felthouse v Bindley (1862) 11 CB (NS) 869) (but an act can be)
    • Acceptance must be in response to an offer for the contract to be valid (R v Clarke (1927) 40 CLR 227).

There is a bunch of related conditions regarding selling of goods. See the Trade Practices Act.

Torts

• A tort is a civil wrong.
• Breach of Contract is a tort.
• Don’t need to have a contract to commit a tort. eg. Tort of Negligence.

Week 11

Criminal Law

(work in progress)

Criminal Law is meant to cover matters concerning the state.

• There are sanctions for failing to abide by the law. But there is no capital punishment in Australia.

Reasons for sanctions,

• Retribution – “they ought to suffer”
• Deterrent
• Incapacitation – protect society by locking the criminal up in jail.
• Rehabilitation – try to change them so they won’t re-offend.

Need,

1. proof of crime (actus reus)
2. criminal intent (mens rea) (although some “strict liability” crimes don’t need this)

Two types of offences,

1. Summary offence -> Decided by a magistrate. No jury. Max 2 years imprisonment.
2. Indictable offence -> most cases have a jury.

• Prosecution need to prove defendant is guilty beyond a reasonable doubt.
• A hung jury is when the jury cannot come to a unanimous (although now they will accept one who votes different to everyone else) decision.
• A persons previous criminal history can only be made known at the sentencing (after a jury has decided if they are guilty or not).
• The jury decides the defendants guilt/innocence, the judge decides the sentencing.

Sentencing,

• Could be prison.
• Could be periodic or home detention.
• Could be community service.
• Could be a fine.
• Could be discharged on a good behaviour bond.

Week 12

Mabo Decision

Native Title Act 1993 (Cth)

Wik Decision

Native Title (Amendment) Act 1998 (Cth)

References

[1] http://www.fedcourt.gov.au/videos/text_version/how_a_case_travels.html

A rant about the state of copyright and my misunderstandings of it

I’ve run into a little legal problem. By a problem I mean that if I were convicted for this I could face “a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.” Apparently one penalty unit is $110. So that means in the worst case a $60, 500 fine and 5 years imprisonment.

What’s all this over? Well I thought I better check up on the Copyright Act 1968 (which I will refer to as The Act) and it is an indictable (meaning you can be sent to jail if found guilty) offence to do the following. (SECT 132AL, The Act)

(1)  A person commits an offence if:

(a)  the person makes a device, intending it to be used for making an infringing copy of a work or other subject‑matter; and

(b)  copyright subsists in the work or other subject‑matter at the time of the making of the device.

(2)  A person commits an offence if:

(a)  the person possesses a device, intending it to be used for making an infringing copy of a work or other subject‑matter; and

(b)  copyright subsists in the work or other subject‑matter at the time of the possession.

….

(11)  In a prosecution for an offence against this section, it is not necessary to prove which particular work or other subject‑matter is intended to be, or will be, copied using the device.

And herein lies the problem. As a regular citizen this is too ambiguous, because people have different interpretations of what a “device” is. Case law can help here as it can give concrete examples of what is illegal and what is not, but someone always is going to be the first one to have to step up to the court to make the case law. Statute law should be clear enough on its own to be understood by the general public.

The term “infringing copy” could also be interpreted different ways, but the law actually explains what it means here (unlike for device which is to be interpreted as “includes a plate” where a “plate includes a stereotype, stone, block, mould, matrix, transfer, negative or other similar appliance.” (The Act)).

Back to the actual problem that I’m referring to, I read the “Time-shifting” fact sheet from the Attorney-General’s Department, http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(CFD7369FCAE9B8F32F341DBE097801FF)~Copyright+Fact+Sheets+-+Time-shifting.pdf/$file/Copyright+Fact+Sheets+-+Time-shifting.pdf (wow what an ugly URL!). It says that it is now legal to record a television or radio broadcast to watch or listen to at a more convenient time. However broadcast does not cover streaming of content online. As such ABC’s iView and friends fall outside this scope. When you stream content from ABC’s iView using an Adobe Flash player I’m not sure if any content is actually written to disk or not but it is definitely saved on various memories, however this “copy” would fall under SECT 111B of The Act and is legal.

What would probably not fall under SECT 111B is there are tools, or what a court may call “devices”, that are “intending it to be used for making an infringing copy of a work” (SECT 132AL, The Act). You can use these tools to store a permanent copy of material that ABC’s transmits to you. My problem is I wrote a script which “helps” users make infringing copies of material published by SBS. Its not the part that actually copies the material (flvstreamer does that) but I can just imagine some lawyer convincing a judge and jury that they should send me to prison. Its way too confusing because you don’t even need these scripts you just need your OS. tcpdump can be used to capture the traffic just like these tools do. Then there is the word “intending” which is open to interpretation to much.

The computer is a copying machine, its not going to stop and check if the copy will be infringing or not. Sorry this has turned into a bit of a rant, but The Act really annoys me. Maybe its because I interpret it different to the people who wrote it, or the people who will use it to send me to prison or give me huge fines.

Then there is the whole other thing of who is held liable. I wrote about the script on wordpress.com, and linked to its location on pastebin.com. Will they come after Automattic (the owner of wordpress.com) or me or the owners of pastebin.cem? But I’m (or maybe its not really me at all but Automattic) publishing all this in the US (I presume wordpress.com is hosted on servers in the US), so that makes all this Australian Copyright Act garbage useless.

Oh and the other thing, under the current act, if you visit a web site most browsers will cache that to disk (I wouldn’t call that a temporary copy “as part of a technical process of use”, but I would call the copying of the data for the HTML document to registers, the processor cache and RAM a temporary copy, but this is not defined in The Act.). Are then web browsers a “device, intending it to be used for making an infringing copy of a work” because they ask for content from a web server, get given it and then save it to disk? (but it’s no defence to say heaps of other people are breaking the law and you have singled me out so you can’t charge me) Does it matter that the web server can send a “Cache-Control: no-cache” response header, if they don’t does that mean that we are allowed to cache all this to disk? But that HTTP header and even the whole HTTP spec is just a W3C recommendation.

This is just a little bit on my reasons why I have no respect at all for the Copyright Act. I don’t want to have to worry about any of this legal stuff, but I must because if I don’t the government can send me to prison or impose huge fines and I don’t want to take a risk there.

Oh and in my defence, the script that I linked to in this post, I would not classify as “device, intending it to be used for making an infringing copy of a work” if anything it would be flvstreamer, but then you cannot single those out. If publishing that script I linked to, or flvstreamer is illegal in this country then publishing an HTTP web browser, tcpdump, or an OS that interfaces with a network must also be devices that are intending it to be used for making an infringing copy of a work.

Also something I’ve been wondering for ages, how can anyone ever be convicted of downloading copyright infringement mealy by downloading it over the internet? One cannot know if such material is protected by copyright (they don’t even know what the data is until they have downloaded it), and one cannot know if the entity they are receiving the data from is the copyright holder who permits this use. A lawyer may come along and say that this is all true, but I wouldn’t want to bet my life on the fact that the court will also agree (given the track record of the courts, see Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187).

Anyway back to studying for my COMP courses.

Finding the Second Reading of a Bill

Say I know of a law (could be any law but I’ll try to choose a recent one as the records don’t go back all that far) and say its the FAIR WORK ACT 2009. I found this through AustLii, now I want to find the bill that this act was created from, as well as any bills that lead to amendments to this act. This information cannot be found in the Act itself. I could do a search on AustLii for the Act Name minus the year and the word Act, and add the word Bill, but because I don’t know enough about parliamentary procedure I don’t know if this is the rule and all acts must be named the same as the bill, or this is just something commonly done. Ideally there should be some references in the database that link bills to an act (if it has been passed).

Now that I have located a Bill I can read the bill on AustLii, but I’ve heard that there are these things called “First Reading”, “Second Reading” and so on that happen in parliament that give the reasons for the introduction of a bill. I want to find that information. So I head over to openaustralia.org,

Because I’m not too familiar with parliamentary practice I don’t know where these first and second readings fit in. So I do a search for “FAIR WORK BILL 2009″ Second Reading”.

From the search results I manually look down the list to find the one that appears to be the second reading.

I have to manually look down the list for one that appears to be the second reading. Sure there may be technical reasons for this which may explain this but at first glance it seems that debates that are the Second Reading of a Bill appear to end with “: Second Reading”. Perhaps an advanced search could use this to determine if a debate is a Second Reading of a Bill or not. Looking at the XML data provided by OpenAustralia for that day you can see that the debate has a minor-heading of “Second Reading”, so sorting and searching by this attribute shouldn’t be too hard.

Admittedly I don’t know enough about the way parliament works. Are these second readings mandatory or just customary?

All rights reserved and Creative Commons together?

Just noticed that a book I was reading over is apparently “Copyright All rights reserved.” and Creative Commons licensed at the same time, I thought that they conflicted? There is probably some legal reason, but it seems a bit weird and confusing to me. Its also not the first time I’ve come across something like this.

All rights reserved & CC-BY? From O'Reilly Version Control with Subversion

EDIT: Maybe it means that we start off with all rights reserved, and from there give you some exceptions or exclusions to these reserved rights. But, well at least in Australia you have “All rights reserved” unless you state otherwise, making it redundant.

SENG4921 – Lec 06 – Intellectual Property and software patents

Patents

Patents are a business tool.

I think that is the most important thing I gathered from this lecture by two Freehills attorneys (Stuart Irvine & Ronelle Geldenhuys) about IP and software patents. Lecture slides here.

Monopoly vs. Secrecy. In order to get the monopoly you must give up the secrecy.

Patents protect functionality.

Patents can be used as a sword (legal action to get royalties or force the infringer to stop), shield (dissuade others from infringing), war chest (trade and negotiation).

A patent gives the patent owner an exclusive right to exclude others from exploiting (manufacturing or importing a patented product or using or importing a product made by a patented process) an invention in a particular country.

To enforce a patent, the patent owner must take the infringer to court.

Tests for patentability,

• Patentable subject matter
• Industrially applicable
• newness (any prior art?)
• obviousness

With regards to patenting mathematical algorithms,

“A method of calculating a value c, where c = e^x x sin(t)” is not patentable however this is,

“A method of determining the length of a road (L) in metres by applying the formula where is the gradient of the road, N is the number of litres of fuel used by a car travelling on the road, and g is the acceleration due to gravity”, According to APO, Manual of Practice and Procedure, Volume 2. Sounds a bit silly to me.

An example,

US Pat. 5356330 (via google) – Apparatus for simulating a “high five”

Self publication prior to filing does class as prior art, meaning you cannot get the patent.

To invalidate a patent you just need to find prior art. That is, find the idea published prior to the filing date of the patent. Lesson here, if you know you don’t want to get a patent for something and you want it to remain free to the world publish your idea/concept. Remember you don’t need something working in order to patent it. Just detail how it would work (that’s easier than getting it to work right?).

US patent 5490216 (or via google) is interesting. Filed in 1993, its a System for software registration. Basically there is a demo mode and a full mode. To get the full mode you need a registration key. Thats the general gitz. I didn’t read the whole thing.

There are other examples,

• IBM holds patent #4,965,765 which covers the use of different colours to distinguish the nesting level of nested expressions. (Filed: 1986)
• Patent #5,249,290 covers assignment of client requests to the server process having the least load. (Filed: 1991)
• Patent #4,941,125 covers using a digital camera in conjunction with character recognition software to store and index documents on a CD ROM. (Filed: 1984)

I don’t know what to think. They seem trivial, simple and obvious, but they weren’t published today. As most people would say, you need to ensure that trivial patents are not granted (problem here is how do you define trivial?), and that the term is not too long (20 years is too long in my opinion).

Patenting of illegal methods in not allowed, though you may patent a things which may be used illegally such as gun (heh, otherwise nothing would be patentable).

Interesting example. A safe design was patented and then a thief used the patents to work out how to break it.

———————–

Copyright

In terms of software, copyrighting software only stops others from using the same implementation as you. They are free to use an alternate implementation to do the exact same thing.

You can copyright compiled machine code.

I have a lot to say about this (creative/computational universe, and the clouds that span derivative works). So much that I’ll have to leave it till later.

———————–

Registered Designs

Registered designs are interesting. There is a nice brochure from an Australian Law firm here.

A registered design provides a monopoly of a limited duration (max 10 years in Australia) granted by the government to an entity of a “concept” which determines the appearance of a product. I’m a little confused here as I though (its such a shame that the audio recoding from that lecture is corrupt) Geldenhuys said that registered designs are for a specific device. So if you register a design for an electronic device, anyone can use that design for say a paperweight. However in their lecture slides it says that registered designs protect appearance not functionality.

You will all probably recognise AU Registered Design 307210. Currently owned by Apple Inc. and must expire by Nov 23, 2015.

AU Registered Design 307210 (http://pericles.ipaustralia.gov.au/adds2/adds.adds_reps_details.paint_large_rep?p_application_details=200515157,307210,1,BB,tmprod,NORMAL)

All registered designs must have a “Statement of Newness and Distinctiveness”. AU RD 307210 says, “Newness and distinctiveness is claimed in the visual features shown in solid lines in the representations.”

Registered designs must be renewed to stay protected. Though they have a max of 10 years, renewal fees get larger near the end of the designs protected life, either Irvine or Geldenhuys then added to this “governments don’t like monopolies”. Sorry but I strongly disagree with you there. If governments didn’t like monopolies they would abolish crown copyright.

Trademarks

I won’t say too much here. But here is a sample trade mark “thing”(?).

Trade Mark 1111537 (http://pericles.ipaustralia.gov.au/atmoss/Falcon_Details.Print_TM_Details?p_tm_number=1111537&p_ExtDisp=D&p_Detail=DETAILED&p_Search_No=2&p_Lastrecord=FALSE&p_Is_Internal=F)

Trade Secrets

You don’t publish, you just swear everyone to secrecy (contracts). Does not protect against reverse engineering or independent formulation.

Patent Talk

I went to a Talk by a Patent Attorney (Stephen Fung) the other day (3rd April 2009) about Patents. It was quite interesting. Here are some notes I made.

• Patent examiners work for the government.
• Patent attorneys are not lawyers, they have a science or engineering qualification

A provisional patent can be rubbish, and you can still amend it before you try to get it turned into a full patent. Its used as documentation of the invention at a specific time so that you have evidence and proof that it existed at a specific time.

Patents are a commercial instrument.

Often the venture capitalist will tell the person or company they invest in to file some patents. These people then go to the patent attorney, tell them this is what I’ve done, just file anything.

An interesting thing about patentable material, using the example of say a compression algorithm, the mathematical foundations are not patentable, but if you incorporate that into say a chip, you can patent that and prevent others from implementing the algorithm into chips of their own.

If you have some new invention that you want to try to patent. You may speak with a patent attorney, go through Technology Transfer (eg. New South Innovations), do the patent yourself, do not disclose until you have filed something.

If you copyright your source code it only protects that “creative expression” of the code. So if someone wrote the exact same program in another programming language then you cannot hinder their distribution of that.

If you patent the underlying algorithm then no one can use of implement that algorithm.

“Patent It Yourself” is apparently a good book.

SENG4921 – Lec 07 – Legal perspectives on system development — Liability, litigation risk, ’professional’ standards, and ethics

I was looking forward to this talk by David Vaile since his name keeps popping up everywhere I go. So here are some rough notes I took down (and then expanded on some points now). His full slides can be found here.

This slide gives a nice overview.

(David Vaile. Legal perspectives on system development)

Lawyers can speak for clients (i.e. on their behalf). So you may want to be careful of what they are saying for you.

Cases are often about motivation. Why you did something. Your intent. Its not a whole science. eg. murder/manslaughter. did you intentionally push someone in front of a train, or did you slip and accidentally push them in front of a train. This can make a difference in a trial.

Criminal –> Beyond reasonable doubt.
Civil –> Probability. Does not need to be beyond reasonable doubt.

Lawyer’s will generally say “with respect I think you are wrong” rather than the direct “you are wrong”.

Law exists to regulate. “It won’t just work out itself [if we don't have laws]“.

Courts can be expensive and risky. Going to court may not always be the best idea.

ASIC, ACCC… can step in sometimes. This strips away the companies advantage (lots of $$’s and lawyers) in a case against an individual.

“If you make something accessible in another country is that publishing in that country?” One court case says yes. I find this surprising. If you publish something on a web server in your country and allow all IP’s to access your web pages then another country considers you publishing in that country??? Unfortunately Vaile didn’t give the case reference for this (UPDATE: This is the case and here is a list of law journal articles referring to the case. I’ll probably make another post once I get a chance to take a closer look at it).

Due to the free trade agreement its now illegal to copy even when allowed if you break the DRM.

Suing your customers –> turns them against your company! This builds a coalition of difference to try to change the law. The turning point is if that coalition is large enough. Could this mean that to win the copyright fight we must get the film studios to sue as many people as possible? I would hope not, and rather hope that people become aware of the current problems on their own accord not through legal action against them.

Litigation risk may change over time. You may do something now that has a low risk of litigation but in a year or so that may change. That minimal risk does not increase your chances of winning the case.

This slide from Vaile’s talk is enlightening for me.

(David Vaile. Legal perspectives on system development)

Mainly because its so easy to fall through the top one that you forget there are layers underneath. Copyright laws is so tough and stupid its hard to convince yourself that you should not break them. You loose faith in the law and begin to not worry about anything. But the law is just one standard. Professional standards and ethics come into play. Let me look at some example cases.

	Liability	Litigation Risk	‘Professional’ standards (will your peers & colleagues reject you?)	Ethics (Will your children & friends reject you?)
Murder	Illegal	High	Yes (probably)	Yes (probably)
Copyright Infringement of a feature film to avoid paying	Illegal	Low	Perhaps	Perhaps
Copyright Infringement of a feature film to transfer a purchased DVD to a portable device (prior to amendments)	Illegal	Very Low	No (unlikely)	No (unlikely)

I think its just as important, if not more important to consider the bottom two standards (professional standards and ethics) than the top two (liability and litigation risk). These bottom two are still important even if you can get away with the illegal act.

Privacy. There are two interests here, the individual and the government.

The Individual. “I want to be left alone.”

<===>

The Government. “What have you got to hide? Tell us.”

When a political party is trying to pass a law public interest/politics may come into play and cause a party to back down on a bill, even if they can get it passed and want it passed.

	US	Australia
Upper House	Senate	Senate
Lower House	Congress	House of Representatives

The Australian SPAM act has no private right to sue. Must rely on ACMA. The US CANSPAM act has private rights to sue.

SENG4921 – Lec 05 – Introduction to Law and Contracts

There are two sources of law.

• Statutory Law:
  In Australia Statutory Law is written law set down by parliament. Before a law can come into force, the Bill must pass through both Houses of Parliament.
• Common Law:
  “Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals (called case law), rather than through legislative statutes or executive action.
  Common law is law created and refined by judges: a decision in a currently pending legal case depends on decisions in previous cases and affects the law to be applied in future cases. When there is no authoritative statement of the law, judges have the authority and duty to make law by creating precedent.” –Wikipedia

Statutory law trumps common law.

In Australia, the legal system can be broadly classified into 4 different jurisdictions:

• Criminal Jurisdiction
• Civil Jurisdiction
  • Contract Law
  • Tort Law
• Administrative Jurisdiction
• Equity

Litigation refers to the process of a lawsuit (when you take someone to court).

• The burden is on the party bringing the action (the Plaintiff)
• Litigation can be costly and something to be avoided
• Consider mediation and arbitration for civil matters

Punitive damages (in contrast to compensatory damages) are damages not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff.

In the area of Contract Law, clicking an OKAY button on a webpage or during installation is legally binding!

In the lecture we took a look at the Microsoft Windows Vista License Agreement. Though I think the iPhone License Agreement is worth taking a look at too.

References

Ho. Peter S. 2009. Introduction to Law and Contracts.

A Letter to the Board of Studies NSW

Here is a letter I wrote to the Board of Studies (service@bos.nsw.edu.au).

Hello,

I’m not exactly sure who I should address this to, so I hope you can pass it along to the relevant person.

I am writing to ask that the Office of the Board of Studies considers licensing their syllabi and examination materials under an open content license (such as Creative Commons, GNU Free Documentation License or another open content license). Currently the Board’s course syllabi, HSC and SC examinations and Notes from the Marking Centre are licensed in a way that prevents redistribution and derivative works. The current status of the copyright licenses hiders students and teachers ability to use the syllabi and examination materials for study through sharing and collaboration of content.

For example it is to my understanding that students, teachers and anyone else cannot take all the syllabus “dot points” and annotate them with their own content, and republish this for the benefit of others. Similarly the current licence prevents use of syllabus extracts such as “dot points” for collaborative works using modern web tools (such as wiki’s).

Please note that I have published this letter on the internet (http://andrewharvey4.wordpress.com/2009/03/14/a-letter-to-the-board-of-studies-nsw). If you agree to any reply to this letter to be posted online (with credit of course), please let me know otherwise I will not publish any reply.

Thank you for you time,
Andrew Harvey
(Past HSC student, Currently University Student)

(EDIT: A related post, http://andrewharvey4.wordpress.com/2008/12/24/board-of-studies-nsw-and-their-syllabi-copyright-license/)

Patents in the Digital Age

I was just reading this (which coincidently seems much better written in terms of style and content than what I write here on my blog),

“In my opinion, copyright and patent laws are entirely suboptimal, especially with regard to the digital side of things. The concept of a patent is a noble one — that is, it allows the inventor of some concept to be protected by the law for a certain amount of time in the production or implementation of that concept. Before patents, inventors would hold their ideas very close to their chests, so nobody could steal them. They’d make a killing selling whatever it was they invented, then take their secret to the grave. Obviously the loss of knowledge is regrettable, but there was no way to let future generations benefit from the invention without giving away its secrets (and thus, your rights). Enter patents. The concept behind patents is that they provide protection for the patent holder for a time, given that he describes it in enough detail for his idea to be replicated. This solves the problem at hand quite neatly: the inventor keeps a grip on his invention, and is given ample time to monopolise upon it. If the inventor were to pass away, the knowledge is retained and can be referred to in the future.

The period during which the patent can be enforced is, in most cases, 20 years. But, wait — if we’re to apply such a law to computer programs… when was the last time you used a 20-year-old piece of software? When was the last time you used even a 7-year-old piece of software? Probably about six years ago. Patents are still a good idea in software, but the patent term needs to be drastically reduced for it to apply sanely. 18 months, at a maximum.”
–http://nornagon.livejournal.com/27709.html

It got me thinking, patent law was really designed for a different age where you invented things such as the telephone and the Rubik’s Cube. Patents documented the inner workings of the invention and how to build it. Thus after the patent owner has made some money from their invention and it falls into the patent equivalent of the public domain anyone else can make it and build upon it. Enter the digital age where generally copyright is used to protect computer software rather than patents (I’ve heard of software patents, but they don’t require submission of source code). Copyright was intended to protect creative works where there are no “inner workings” or “instructions” needed in order to build it. Given the fact that most (maybe not most, but lots of) software is written in programming languages that get compiled into machine code, computer software needs these “inner workings” and “instructions” i.e. the source code in order to build upon it once the original creators have made some money.

There are two problems here with the fact that software falls under copyright rather than patents.

1. When the protection expires there is no method to ensure that the source is published, and
2. secondly copyright laws currently last life + 70 years. In some cases this could be 160 years it takes for the copyright to expire. By then the technologies would have most certainly changed and the software would be of no use (even if the physical storage medium has survived that long (though I think laws now allow copying for backup)). As suggested in the quoted article above a reasonable protection length would need to be less. I think 2-3 years, but really an experienced team of worldwide economists would be able to come up with this figure much better than I could. This would, I think, push innovation forward as software creators would need to come up with new things in order to continue the income stream.

But what if the government’s were to introduce some new patent laws that tried to put computer software under patent laws rather than copyright (yes I know that’s a semantics issue, but I’m referring to the current laws). Well lets say that the law said that you will only have protection for your computer program if you give us the source which we will lock up and then release after a few years. Despite the fact that you would need to employ a lot of patent officers, I don’t think this will work because,

1. its hard to tell if the source that was provided really was everything for the program (i.e. manual checking would be needed.)
2. you could argue that machine code is the source (i.e. say you wrote the program in machine code when you really used C++)
3. that creators will just say “okay we don’t need protection from the law, we won’t use patents, we’ll just implement our own DRM and skip your patent laws”. This is even worse as it locks up the program for as long as it takes to crack the DRM.

Another key thing is that even in the time of patents if you bought a product that was protected under patent law, you were still allowed to make changes to it. For example if you bought a Rubik’s Cube and if it was protected by a patent, the law could not stop you for example pulling it apart to see what it looks like on the inside, or writing some numbers on the outside squares. However now in the digital age and particularly with the DMCA you cannot even do this (though I don’t think Australia has any law that is equivalent to the DMCA that restricts you circumventing DRM). In these time it is apparently illegal for you to open up and change your own products that you have purchased and own.