Duty and Control in Intermediary Copyright Liability: An Australian Perspective

In the internet age, copyright owners are increasingly looking to online intermediaries to take steps to prevent copyright infringement. Sometimes these intermediaries are closely tied to the acts of infringement; sometimes – as in the case of ISPs – they are not. In 2012, the Australian High Court decided the Roadshow Films v iiNet case, in which it held that an Australian ISP was not liable under copyright’s authorization doctrine, which asks whether the intermediary has sanctioned, approved or countenanced the infringement. The Australian Copyright Act 1968 directs a court to consider, in these situations, whether the intermediary had the power to prevent the infringement and whether it took any reasonable steps to prevent or avoid the infringement. It is generally not difficult for a court to find the power to prevent infringement – power to prevent can include an unrefined technical ability to disconnect users from the copyright source, such as an ISP terminating users’ internet accounts. In the iiNet case, the High Court eschewed this broad approach in favor of focusing on a notion of control that was influenced by principles of tort law. In tort, when a plaintiff asserts that a defendant should be liable for failing to act to prevent harm caused to the plaintiff by a third party, there is a heavy burden on the plaintiff to show that the defendant had a duty to act. The duty must be clear and specific, and will often hinge on the degree of control that the defendant was able to exercise over the third party. Control in these circumstances relates directly to control over the third party’s actions in inflicting the harm. Thus, in iiNet’s case, the control would need to be directed to the third party’s infringing use of BitTorrent; control over a person’s ability to access the internet is too imprecise. Further, when considering omissions to act, tort law differentiates between the ability to control and the ability to hinder. The ability to control may establish a duty to act, and the court will then look to small measures taken to prevent the harm to determine whether these satisfy the duty. But the ability to hinder will not suffice to establish liability in the absence of control. This chapter argues that an inquiry grounded in control as defined in tort law would provide a more principled framework for assessing the liability of passive intermediaries in copyright. In particular, it would set a higher, more stable benchmark for determining the copyright liability of passive intermediaries, based on the degree of actual, direct control that the intermediary can exercise over the infringing actions of its users. This approach would provide greater clarity and consistency than has existed to date in this area of copyright law in Australia.

Decision examines wrongdoers and liability

In Ligon Sixty-Three Pty Ltd v ClarkeKann [2015] QSC 153 the court considered an application to join parties as defendants when it was alleged they were concurrent wrongdoers for the purpose of the proportionate liability provisions of the Civil Liability Act 2003 (Qld) (the Act).

Detecting drift from event streams of unpredictable business processes

Existing business process drift detection methods do not work with event streams. As such, they are designed to detect inter-trace drifts only, i.e. drifts that occur between complete process executions (traces), as recorded in event logs. However, process drift may also occur during the execution of a process, and may impact ongoing executions. Existing methods either do not detect such intra-trace drifts, or detect them with a long delay. Moreover, they do not perform well with unpredictable processes, i.e. processes whose logs exhibit a high number of distinct executions to the total number of executions. We address these two issues by proposing a fully automated and scalable method for online detection of process drift from event streams. We perform statistical tests over distributions of behavioral relations between events, as observed in two adjacent windows of adaptive size, sliding along with the stream. An extensive evaluation on synthetic and real-life logs shows that our method is fast and accurate in the detection of typical change patterns, and performs significantly better than the state of the art.

Hydrazine-hydrate intercalated halloysite under controlled-rate thermal analysis conditions

The thermal behaviour of halloysite fully expanded with hydrazine-hydrate has been investigated in nitrogen atmosphere under dynamic heating and at a constant, pre-set decomposition rate of 0.15 mg min-1. Under controlled-rate thermal analysis (CRTA) conditions it was possible to resolve the closely overlapping decomposition stages and to distinguish between adsorbed and bonded reagent. Three types of bonded reagent could be identified. The loosely bonded reagent amounting to 0.20 mol hydrazine-hydrate per mol inner surface hydroxyl is connected to the internal and external surfaces of the expanded mineral and is present as a space filler between the sheets of the delaminated mineral. The strongly bonded (intercalated) hydrazine-hydrate is connected to the kaolinite inner surface OH groups by the formation of hydrogen bonds. Based on the thermoanalytical results two different types of bonded reagent could be distinguished in the complex. Type 1 reagent (approx. 0.06 mol hydrazine-hydrate/mol inner surface OH) is liberated between 77 and 103°C. Type 2 reagent is lost between 103 and 227°C, corresponding to a quantity of 0.36 mol hydrazine/mol inner surface OH. When heating the complex to 77°C under CRTA conditions a new reflection appears in the XRD pattern with a d-value of 9.6 Å, in addition to the 10.2 Ĺ reflection. This new reflection disappears in contact with moist air and the complex re-expands to the original d-value of 10.2 Å in a few h. The appearance of the 9.6 Å reflection is interpreted as the expansion of kaolinite with hydrazine alone, while the 10.2 Å one is due to expansion with hydrazine-hydrate. FTIR (DRIFT) spectroscopic results showed that the treated mineral after intercalation/deintercalation and heat treatment to 300°C is slightly more ordered than the original (untreated) clay.

The effect of mechanochemical activation upon the intercalation of a high-defect kaolinite with formamide

The effect of mechanochemical activation upon the intercalation of formamide into a high-defect kaolinite has been studied using a combination of X-ray diffraction, thermal analysis, and DRIFT spectroscopy. X-ray diffraction shows that the intensity of the d(001) spacing decreases with grinding time and that the intercalated high-defect kaolinite expands to 10.2 A. The intensity of the peak of the expanded phase of the formamide-intercalated kaolinite decreases with grinding time. Thermal analysis reveals that the evolution temperature of the adsorbed formamide and loss of the inserting molecule increases with increased grinding time. The temperature of the dehydroxylation of the formamide-intercalated high-defect kaolinite decreases from 495 to 470oC with mechanochemical activation. Changes in the surface structure of the mechanochemically activated formamide-intercalated high-defect kaolinite were followed by DRIFT spectroscopy. Fundamentally the intensity of the high-defect kaolinite hydroxyl stretching bands decreases exponentially with grinding time and simultaneously the intensity of the bands attributed to the OH stretching vibrations of water increased. It is proposed that the mechanochemical activation of the high-defect kaolinite caused the conversion of the hydroxyls to water which coordinates the kaolinite surface. Significant changes in the infrared bands assigned to the hydroxyl deformation and amide stretching and bending modes were observed. The intensity decrease of these bands was exponentially related to the grinding time. The position of the amide C&unknown;O vibrational mode was found to be sensitive to grinding time. The effect of mechanochemical activation of the high-defect kaolinite reduces the capacity of the kaolinite to be intercalated with formamide.

Systemic racism: the hidden barrier to educational success for Indigenous school students

Explanations for poor educational experiences and results for Australian Indigenous school students have, to a great extent, focused on intended or conscious acts or omissions. This paper adopts an analysis based on the legislation prohibiting indirect racial discrimination. Using the elements of the legislation and case law it argues that apparently benign and race-neutral policies and practices may unwittingly be having an adverse impact on Indigenous students' education. These practices or policies include the building blocks of learning, a Eurocentric school culture. Standard English as the language of assessment, legislation to limit schools' legal liability, and teachers' promotions.

Abstracting and correlating heterogeneous events to detect complex scenarios

The research presented in this thesis addresses inherent problems in signaturebased intrusion detection systems (IDSs) operating in heterogeneous environments. The research proposes a solution to address the difficulties associated with multistep attack scenario specification and detection for such environments. The research has focused on two distinct problems: the representation of events derived from heterogeneous sources and multi-step attack specification and detection. The first part of the research investigates the application of an event abstraction model to event logs collected from a heterogeneous environment. The event abstraction model comprises a hierarchy of events derived from different log sources such as system audit data, application logs, captured network traffic, and intrusion detection system alerts. Unlike existing event abstraction models where low-level information may be discarded during the abstraction process, the event abstraction model presented in this work preserves all low-level information as well as providing high-level information in the form of abstract events. The event abstraction model presented in this work was designed independently of any particular IDS and thus may be used by any IDS, intrusion forensic tools, or monitoring tools. The second part of the research investigates the use of unification for multi-step attack scenario specification and detection. Multi-step attack scenarios are hard to specify and detect as they often involve the correlation of events from multiple sources which may be affected by time uncertainty. The unification algorithm provides a simple and straightforward scenario matching mechanism by using variable instantiation where variables represent events as defined in the event abstraction model. The third part of the research looks into the solution to address time uncertainty. Clock synchronisation is crucial for detecting multi-step attack scenarios which involve logs from multiple hosts. Issues involving time uncertainty have been largely neglected by intrusion detection research. The system presented in this research introduces two techniques for addressing time uncertainty issues: clock skew compensation and clock drift modelling using linear regression. An off-line IDS prototype for detecting multi-step attacks has been implemented. The prototype comprises two modules: implementation of the abstract event system architecture (AESA) and of the scenario detection module. The scenario detection module implements our signature language developed based on the Python programming language syntax and the unification-based scenario detection engine. The prototype has been evaluated using a publicly available dataset of real attack traffic and event logs and a synthetic dataset. The distinct features of the public dataset are the fact that it contains multi-step attacks which involve multiple hosts with clock skew and clock drift. These features allow us to demonstrate the application and the advantages of the contributions of this research. All instances of multi-step attacks in the dataset have been correctly identified even though there exists a significant clock skew and drift in the dataset. Future work identified by this research would be to develop a refined unification algorithm suitable for processing streams of events to enable an on-line detection. In terms of time uncertainty, identified future work would be to develop mechanisms which allows automatic clock skew and clock drift identification and correction. The immediate application of the research presented in this thesis is the framework of an off-line IDS which processes events from heterogeneous sources using abstraction and which can detect multi-step attack scenarios which may involve time uncertainty.

The failure of Australian legislation on indirect discrimination to detect the systemic racism which prevents Aboriginal people from fully participating in the workforce

Government figures put the current indigenous unemployment rate at around 23%, 3 times the unemployment rate for other Australians. This thesis aims to assess whether Australian indirect discrimination legislation can provide a remedy for one of the causes of indigenous unemployment - the systemic discrimination which can result from the mere operation of established procedures of recruitment and hiring. The impact of those practices on indigenous people is examined in the context of an analysis of anti-discrimination legislation and cases from all Australian jurisdictions from the time of the passing of the Racial Discrimination Act by the Commonwealth in 1975 to the present. The thesis finds a number of reasons why the legislation fails to provide equality of opportunity for indigenous people seeking to enter the workforce. In nearly all jurisdictions it is obscurely drafted, used mainly by educated middle class white women, and provides remedies which tend to be compensatory damages rather than change to recruitment policy. White dominance of the legal process has produced legislative and judicial definitions of "race" and "Aboriginality" which focus on biology rather than cultural difference. In the commissions and tribunals complaints of racial discrimination are often rejected on the grounds of being "vexatious" or "frivolous", not reaching the required standard of proof, or not showing a causal connection between race and the conduct complained of. In all jurisdictions the cornerstone of liability is whether a particular employment term, condition or practice is reasonable. The thesis evaluates the approaches taken by appellate courts, including the High Court, and concludes that there is a trend towards an interpretation of reasonableness which favours employer arguments such as economic rationalism, the maintenance of good industrial relations, managerial prerogative to hire and fire, and the protection of majority rights. The thesis recommends that separate, clearly drafted legislation should be passed to address indigenous disadvantage and that indigenous people should be involved in all stages of the process.

Under great pressure, a diamond is being formed: The SBS over time

This article observes a paradox in the recent history of the Special Broadcasting Service. It is argued that, in contrast to the Australian Broadcasting Corporation, the role and general direction of SBS were not extensively debated as part of the ‘culture wars’ that occurred during the years of the Howard government. While that made SBS a less fraught space during that period, it may now be a factor in the comparative lack of support being given by the Rudd Labor government to SBS in comparison with the ABC, as some of the ‘special’ status of SBS has been blunted by its drift towards more mainstream programming and a mixed economy of commercial advertising, as well as government funding.

Seismic performance of brick infilled RC frame structures in low and medium rise buildings in Bhutan

The construction of reinforced concrete buildings with unreinforced infill is common practice even in seismically active country such as Bhutan, which is located in high seismic region of Eastern Himalaya. All buildings constructed prior 1998 were constructed without seismic provisions while those constructed after this period adopted seismic codes of neighbouring country, India. However, the codes have limited information on the design of infilled structures besides having differences in architectural requirements which may compound the structural problems. Although the influence of infill on the reinforced concrete framed structures is known, the present seismic codes do not consider it due to the lack of sufficient information. Time history analyses were performed to study the influence of infill on the performance of concrete framed structures. Important parameters were considered and the results presented in a manner that can be used by practitioners. The results show that the influence of infill on the structural performance is significant. The structural responses such as fundamental period, roof displacement, inter-storey drift ratio, stresses in infill wall and structural member forces of beams and column generally reduce, with incorporation of infill wall. The structures designed and constructed with or without seismic provision perform in a similar manner if the infills of high strength are used.

Show me a bad kid and I’ll show you a lousy parent : making parents responsible for youth crime in Australian and Canadian Contexts

This article surveys literature bearing on the issue of parental liability and responsibility for the crimes of young offenders, with a particular focus on comparing different approaches to dealing with the issue in Australia and Canada. This comparative analysis of Australian and Canadian legislative and policy approaches is situated within a broader discussion of arguments about the “punitive turn” in youth justice, responsibilisation, and cross-jurisdictional criminal justice policy transfer and convergence. Our findings suggest that there are significant differences in the manner and extent to which Australia and Canada have invoked parental responsibility laws and policies as part of the solution to dealing with youth crime. We conclude by speculating on some of the reasons for these differences and establishing an agenda for additional needed cross-jurisdictional research. In particular, we argue that it would be fruitful to undertake a cross-jurisdictional study that examines the development and effects of parental responsibility laws across a larger number of different Western countries as well as across individual states and provinces within these national jurisdictions.

Traceability : retracing law and public policy on measurement standards

This presentation outlines key aspects of public policy in broad terms insofar as they relate to establishment, implementation and compliance with legal measurement standards. It refers in particular to traceability of a legal measurement unit from its source in a single international standard as a compliance issue. It comments on accreditation of legal measurement and liability concerned with errors in measurement.