One of the key motivating factors for free software is so that a user or interested third party can see how a program works, how it was created, verify it for bugs and security, and can easily modify it including to fix bugs. To some degree this philosophy can be carried across to other works covered by copyright, yet the Creative Commons licenses don’t yet offer a license for this. For instance, say I do a drawing with a pencil on paper. There isn’t really any source, only a binary (the final drawing). If you want to change it, all you can do is draw over the top of it or use an eraser (just like modifying binary encoded machine code).
However, works covered by copyright are no longer solely creative, and no longer a single final binary. Just like software code which although could have creative thought put into it, it is mostly functional. I have the same thought process for creative works, I want to be able to see how it was created, and how I can modify it. Take for instance a digital painting, where every brush stroke is stored as a brushstroke. This way a third party could come along later, select the single brush stroke in question, select it and change the paint color.
Following up from my previous post, I have made improvements to the code, and I now have all the NPLAN data too. There are also some data files so you don’t need to run the scraper and parser which hopefully this makes the data more usable and to a wider range of people. Now that I have the NPLAN data you can compare schools in terms of their (I assume the numbers are averages) test results. I was going to put in the repository some tables mashing together some of the data in the database, but I’ve had to research about a silly NSW law first. I’m not exactly sure what I can publish and what the implication of that would be (so best make your own league tables and possibly publish them if you want). The NSW law says,
A person must not, in a newspaper or other document that is publicly available in this State: (a) publish any ranking or other comparison of particular schools according to school results, or, (b) identify a school as being in a percentile of less than 90 per cent in relation to school results.
The folks at the Sydney Morning Herald seem to think that “Published online the same tables infringe no law; printed on these pages they are illegal.” This is not what I interpret the law as. Publishing online means that the document is available for access from NSW. However I am confident I can get around this by not hosting anything myself and not hosting in Australia. For this I rely on the great services provided by wordpress.com (Automattic, Inc.) and/or github.com (GitHub, Inc.). Hopefully these US companies wouldn’t cave into any threats from the Australian government.
This section of the law carries a maximum of 50 penalty units. Which is currently a fine of $5500, that is a large enough sum for me to take extra care. This is why I’m still not sure if I should put such lists like schools ordered by certain NPLAN results in the github repository.
By the way, this censorship and damaging law raises the same questions and problems (problems for those that wish to avoid criminal or civil charges) about legal jurisdiction over the internet, the classic example is the “yahoo! nazi paraphernalia” debacle.
Footnote: This SQL query should give you an ordered list of schools based on the 2009 year 9 NPLAN results (but I guess if you can load the database dump you can probably write your own queries…).
SELECT s.name, n.score, sub.state FROM nplan n, school s, (SELECT distinct pcode, state FROM suburb) sub WHERE n.school = s.myschool_url AND s.postcode = sub.pcode AND n.year = 2009 AND n.grade = 9 AND n.area = 'numeracy' ORDER BY n.score DESC;
I post these here for the purpose of future reference and use.
They are “Acts not constituting infringements of copyright in works”. So I’m just reminding myself of these rights so that any time I wish to use material covered by these, I can just grab the text and link from here and note it next to the copy. Of course this is not really relevant here because this blog is hosted by a US company, but it would be help if I were to one day decide to self host in Australia.
So I’ve started reading a book about networks, and to complement this I’ve been taking a closer look at my network traffic in Wireshark (really great tool, by the way.).
So I pick an ftp site that I know, ftp://download.nvidia.com/ and see what happens in Wireshark when I visit it in Firefox. At the FTP application level this is what happens,
ftpsite to me: 220 spftp/1.0.0000 Server [184.108.40.206]\r\n me to ftpsite: USER anonymous\r\n ftpsite to me: 331 Password required for USER.\r\n me to ftpsite: PASS email@example.com\r\n ftpsite to me: 230- \r\n 230- ---------------------------------------------------------------------------\r\n 230- WARNING: This is a restricted access system. If you do not have explicit\r\n 230- permission to access this system, please disconnect immediately!\r\n 230 ----------------------------------------------------------------------------\r\n
But Firefox does not disconnect. So I did some more research and I found no references to “anonymous” users in either RFC 959 (FTP) or RFC 3659 (extensions to FTP). (Though there are references in latter RFCs, see RFC 2228).
The thing I find disconcerting is that I don’t think I have “explicit permission” to access this system. I (or rather Firefox) just guessed a username and password and they happened to let me in (what if I guessed a different username and password that wasn’t anonymous and it let me in?). If the RFC specified that a user of anonymous requires no password, or any password, then I would assume that the FTP server is granting me permission, but I assume rather people just started using anonymous as the user and it caught on…
What happens when you mix a service like AustLii with version control system like Git with a wiki like editing system, and deliver it to the people through the web?
Well I haven’t tried, but it sounds like a good idea. You get a service that,
- allows anyone to propose changes to laws (and work on branches) or draft and new laws, and
- keeps track of the law and when it was changed (and which politicians/parties introduced those changes, who voted for them, etc…).
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  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.
- 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.
- 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)
- 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
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.
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.
- Adversarial System (this is the type of procedure practised in common law courts)
- 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:
- Legislative Arm (Parliament)
- Amends/Creates Laws
- Executive Arm
- Administrate Laws/Initiating Laws/Enforce laws
- Government Departments, Governor General, Police…
- 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
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.
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.
- 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
- 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).
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.
Alternative Dispute Resolution (ADR)
- 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.
- 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.
- Less formal that adjudication.
- 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)
- Mediator present, but cannot enforce/make a decision on the outcome
- Can be lengthy taking from months to years.
- 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.”
Contracts and Torts
- 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  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
- 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.
- 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.
(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”
- Incapacitation – protect society by locking the criminal up in jail.
- Rehabilitation – try to change them so they won’t re-offend.
- proof of crime (actus reus)
- criminal intent (mens rea) (although some “strict liability” crimes don’t need this)
Two types of offences,
- Summary offence -> Decided by a magistrate. No jury. Max 2 years imprisonment.
- 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.
- 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.
Native Title Act 1993 (Cth)
Native Title (Amendment) Act 1998 (Cth)
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  FCAFC 187).
Anyway back to studying for my COMP courses.