Too Busy For Words - the PaulWay Blog

Tue 26th Aug, 2008

Go to the Courts

There is a state in playing Go where one recognises that a move might seem to give one a small gain in pieces now but gives more power to ones opponent in the long run. While I still struggle with this, and the larger question of 'what should I play so that I do gain advantage over my opponent in the long run' is one I still find exceptionally difficult to grasp, I have at least started to recognise that getting a single eye now may actually give my opponent a double eye later.

It occurs to me, albeit as a layman with little knowledge of the real processes of law in and out of the courts, that there is a common pattern to high-profile law cases. If the objective is for A to win over B, then it is:

  1. A sues B and wins
  2. B appeals against the judgement, brings in new arguments and wins.
  3. A appeals against that decision in the high court, brings in the full arsenal, and wins.
B has lost because they have no higher court to appeal to. B has also lost because it has let itself be put in this position.

So what's odd in the whole Nine versus IceTV is that Nine has done this:

  1. Nine sues IceTV and loses
  2. Nine appeals against the judgement, brings in new arguments and wins.
  3. IceTV appeals against that decision in the high court...
Substituting Nine for B and IceTV for A in the pattern, therefore, means that it has allowed itself to be snookered by IceTV. Not only that, but the appeal decision, in my (again completely layman) view, were rather skewed: calling Nine's last minute channel changes 'creative input' is a rather large stretch, whereas calling them 'bungles' is probably nearer the mark. Then arguing that those changes then become not mere facts (that can be copied) but are promoted to copyrightable material is to call anything that a human being has any input into a creative process. It's easy to come up with counter-examples - copying numbers from a book, or assembling cars - but what may be more important is that this works in IceTV's favour, in that by the same rule IceTV are then putting creative input into the schedule and are therefore also making a creative work which is distinct from Nine's schedule by that very fact.

I'm sure the legal minefield starts well back at the start of that previous paragraph, and so I defer to Kim Weatherall and other experts, but when courts start handing down legal judgements that imply that almost any information is copywritable by someone makes the whole existence of facts in the public domain highly tenuous. Can someone copyright my name? My address? Do I somehow own a copyright to my particular choice of phone number and address that means that Telstra owes me money every time they print a phone book? (Note here that when it came to moving house most recently, I was given the choice of a couple of numbers by Telstra and I chose the one I liked - therefore, it wasn't Telstra's creative input that determined my phone number, it was mine.) If someone uses the word "PaulWay" in a way that I don't like, and I've been using it since 1992 and therefore have 15 years of established usage to back it up (again, having chosen that name creatively), can I sue them for copyright infringement without ever having to register it as a trademark? And if it's a copyright infringement, do I get those penalties that the APRA and ACA and so forth have fought for - penalties that are much worse than if it was just a defamation or trademark infringement case? Can you go to prison for creating a post-it note that copies your bus timetable or a person's phone number?

Yes, I know, it's all wild speculation. But this whole judgement feels completely at odds with how people really think about facts and raw information. While I respect the old style of directory compilation, to me it still doesn't equate to a monopoly on the information so collected. The whole "sweat of the brow" protection - that the labour itself makes it enough to be protected - doesn't wash with me, especially in a world where facts, information, opinions and news wash over us almost continually.

Anyway, back to my point. I think that Nine has, in their attempt to get their way in the short term, actually meant that IceTV will triumph in the end. By presenting a case based on such a skewed interpretation of the Australian copyright laws as they apply to facts and information, they've opened it up to the High Court leaning in the opposite direction and blowing Nine out of the water (and, I'd say, causing a considerable re-evaluation of the Desktop Systems vs Telstra case).

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