Tech law update 26 April 2010

Rendering ACTA superfluous?

Australian law professor Michael Fraser suggests that ISPs could render ACTA “superfluous” by entering into commercial agreements with content providers:

“The best approach to these issues… is to do a commercial deal and bring the ISPs into the value chain,” he said. “Rather than litigate [content providers] should include ISPs in the supply chain and ensure they get a fair part of the reward and allow access to content via the ISPs.”

The suggestion does not, of course, imply that ISPs could “contract out” of copyright law altogether. But if a commercially acceptable deal with major rights-holders could be reached, that could at least provide a “market” solution to the possible uncertainty and other concerns ACTA may cause for ISPs, rights-holders and users.

Parody rights in IP law

The studio behind Downfall film has applied to have numerous parodies of its movies removed from YouTube on the grounds of copyright infringement. The clips of the film used in the short YouTube videos are the copyright of the studio, but the question is whether the parodies are permitted under the fair use doctrine of US law.

Now, YouTube has helpfully given instructions for users whose clips have been the subject of an infringement claim by the studio.

On the local front, Luke Appleby notes that New Zealand still does not have a parody right under our copyright law. In essence, a review was announced in 2008, but has not progressed since.

Privacy attitudes

A study has been published in the US entitled “How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies?”. From the report:

An important part of the picture, though, must surely be our finding that higher proportions of 18-24 year olds believe incorrectly that the law protects their privacy online and offline more than it actually does. This lack of knowledge in a tempting environment, rather than a cavalier lack of concern regarding privacy, may be an important reason large numbers of them engage with the digital world in a seemingly unconcerned manner.

From the conclusion:

… we found that in large proportions young adults do care about privacy. … Public policy agendas should therefore not start with the proposition that young adults do not care about privacy and thus do not need regulations and other safeguards. Rather, policy discussions should acknowledge that the current business environment along with other factors sometimes encourages young adults to release personal data in order to enjoy social inclusion even while in their most rational moments they may espouse more conservative norms.

The wider issue for all age groups, though, is that people seem quite happy to exchange privacy for functionality (or other benefits). To what extent should governments intervene?

Tech law news 20 April 2010

ACTA deal and 3-strikes disconnection

ACTA negotiators have issued a statement that the agreement will not require participant countries to implement 3-strike internet disconnection laws. As it happens, the Government’s revised s92A bill (currently before parliament) still provides for disconnection in limited circumstances, but only as a Court-sanctioned remedy.

ICT finance regulation

Computerworld has an article on the upcoming financial services reform and its possible impact on ICT finance providers:

It is not clear which financial providers in the IT industry will be affected. The MED says that, in general, if an organisation is providing credit under a credit contract, then they are offering a financial service and the registration requirement will apply, meaning they have to join a dispute resolution service.

Consumer finance customers (i.e. those obtaining finance for personal or domestic purposes) already receive a good measure of protection under the Credit Contracts and Consumer Finance Act 2003. The new reforms are still being refined; the extent to which they will affect finance operators remains to be seen.

Government indemnities

The Government recently amended clause 4 of the Public Finance (Departmental Guarantees and Indemnities) Regulations 2007 to permit Government departments to agree to:

any guarantee or indemnity contained in the standard terms and conditions for the purchase, licence, or use by the Crown of—

(i) an Internet site;
(ii) software;
(iii) information technology tools, products, or services.

Many websites include indemnities in their standard terms (for example, by even reading the New Zealand Herald you agree to an indemnity). This change makes it more practicable for the Government to use common online and software applications, without having to obtain internal sign-offs.

The “Immortal Soul” clause

On the subject of website terms, a website recently added an “immortal soul” clause to its terms and conditions:

By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul.

While this was an April Fool’s Day prank, it’s purpose was to highlight the fact that very few people actually read website terms. In any case, something tells me this would not be an enforceable website term!