The Pirate Bazaar: The Social Life of Copyright Law

This thesis provides a cultural history of Australian copyright law and related artistic controversies. It examines a number of disputes over authorship, collaboration, and appropriation across a variety of cultural fields. It considers legal controversies over the plagiarism of texts, the defacing of paintings, the sampling of musical works, the ownership of plays, the co-operation between film-makers, the sharing of MP3 files on the Internet, and the appropriation of Indigenous culture. Such narratives and stories relate to a broad range of works and subject matter that are protected by copyright law. This study offers an archive of oral histories and narratives of artistic creators about copyright law. It is founded upon interviews with creative artists and activists who have been involved in copyright litigation and policy disputes. This dialogical research provides an insight into the material and social effects of copyright law. This thesis concludes that copyright law is not just a ‘creature of statute’, but it is also a social and imaginative construct. In the lived experience of the law, questions of aesthetics and ethics are extremely important. Industry agreements are quite influential. Contracts play an important part in the operation of copyright law. The media profile of personalities involved in litigation and policy debates is pertinent. This thesis claims that copyright law can be explained by a mix of social factors such as ethical standards, legal regulations, market forces, and computer code. It can also be understood in terms of the personal stories and narratives that people tell about litigation and copyright law reform. Table of Contents Prologue 1 Introduction A Creature of Statute: Copyright Law and Legal Formalism 6 Chapter One The Demidenko Affair: Copyright Law and Literary Works 33 Chapter Two Daubism: Copyright Law and Artistic Works 67 Chapter Three The ABCs of Anarchism: Copyright Law and Musical Works 105 Chapter Four Heretic: Copyright Law and Dramatic Works 146 Chapter Five Shine: Copyright Law and Film 186 Chapter Six Napster: Infinite Digital Jukebox or Pirate Bazaar? Copyright Law and Digital Works 232 Chapter Seven Bangarra Dance Theatre: Copyright Law and Indigenous Culture 275 Chapter Eight The Cathedral and the Bazaar: The Future of Copyright Law 319

Napster: Infinite digital jukebox or pirate bazaar?

This paper considers the copyright litigation over the file-sharing program, Napster. The first section examines the culture of collecting at work in Napster. The next part examines the litigation by the major record companies and Metallica against Napster. The final section considers the future of file-sharing, looking at alternatives to Napster, such as Filetopia, Freenet, Gnutella, MP3board.com and streaming media.

Balls up : the converse blank canvas project

Research background: For decades the Chuck Taylor All Star basketball shoe (first designed in 1921 by Converse, an American shoe company), has been an iconic item of fashion apparel, particularly for the youth oriented market - as a form of self expression and identify, adolescents have for generations been customising their Converse sneakers to create innovative and unique footwear. Although originally developed purely for sport, sneakers gradually crossed over into fashion and the majority of athletic shoes are now purchased for street fashion or leisure wear. Artisan Gallery (Brisbane), in conjunction with the exhibition Reboot: Function, Fashion and the Sneaker, a history of the sneaker, selected 20 designers to customise and re-design the classic Converse Chuck Taylor All Stars shoe and in doing so highlighted the diversity of forms possible for creative outcomes. As Artisan Gallery Curator Kirsten Fitzpatrick states “the ‘sports show’, designed to coincide with the Olympics, is also about exploring the sneaker as a platform for creativity... and (one) of the more bazaar creations was Dean Brough's deconstructed shoes to make men’s underwear.” The exhibition ran from 21 June – 16 August 2012: http://artisan-ideaskillproduct.blogspot.com.au/2012/06/converse-blank-canvas-project.html Research question: Even though the sneaker is a fashion item, it still is fundamentally used for foot protection and historically was aligned to ball sports, principally Basketball - as a fashion designers/practitioner how can I connect (in a whimsical manner) this history of usage for ball sports to the sneaker and re-design and re-use all the physical elements of the shoe to produce a unique wearable item of clothing - the selected medium for this challenge and experimentation was the classic archetypal men’s white boxer shorts. Artisan Statement BALLS UP - The Converse Sneaker, it’s almost impossible to imagine a better rounded item to maintain peak performance for all types of ball sports. Gentlemen, your other most precious balls also deserve this level of comfort and support to sustain the hard times – the Converse Boxer, balls up, bats out, get ready to play hard. Research contribution: The project highlighted some of the unique and diverse creative manifestations that are possible from the classic sneaker. From a fashion practitioners’ perspective, the design outcomes (men’s boxer short made from converse sneakers) demonstrated the strong association to iconic fashion apparel, and recognised the connection to wearability and comfort that is requisite in both footwear and men’s underwear. Research significance: The exhibition was viewed by in excess of 1000 people and generated exceptional media coverage and public exposure/impact. As Artisan Gallery Curator Kirsten Fitzpatrick states “20 of Brisbane's best designers were given the opportunity to customise their own Converse Sneakers, with The Converse Blank Canvas Project.” And to be selected in this category demonstrates the calibre of importance for design prominence.

Breakfast at Tiffany's': eBay Inc., trade mark law, and counterfeiting

In an exploration of intellectual property and fashion, this article examines the question of the intermediary liability of online auction-houses for counterfeiting. In the United States, the illustrious jewellery store, Tiffany & Co, brought a legal action against eBay Inc, alleging direct trademark infringement, contributory trademark infringement, false advertising, unfair competition and trademark dilution. The luxury store depicted the online auction-house as a pirate bazaar, a flea-market and a haven for counterfeiting. During epic litigation, eBay Inc successfully defended itself against these allegations in a United States District Court and the United States Court of Appeals for the Second Circuit. Tiffany & Co made a desperate, unsuccessful effort to appeal the matter to the Supreme Court of the United States. The matter featured a number of interventions from amicus curiae — Tiffany was supported by Coty, the Fashion Designer's Guild, and the International Anticounterfeiting Coalition, while eBay was defended by publicly-spirited civil society groups such as Electronic Frontier Foundation, Public Citizen, and Public Knowledge as well as Yahoo!, Google Inc, Amazon.com, and associations representing telecommunications carriers and internet service providers. The litigation in the United States can be counterpointed with the fusillade of legal action against eBay in the European Union. In contrast to Tiffany & Co, Louis Vuitton triumphed over eBay in the French courts — claiming its victory as vindication of the need to protect the commercial interests and cultural heritage of France. However, eBay has fared somewhat better in a dispute with L’Oréal in Great Britain and the European Court of Justice. It is argued that, in a time of flux and uncertainty, Australia should follow the position of the United States courts in Tiffany & Co v eBay Inc. The final part examines the ramifications of this litigation over online auction-houses for trade mark law reform and consumer rights; parallel disputes over intermediary liability and safe harbours in the field of copyright law and the Anti-Counterfeiting Trade Agreement 2010. The conclusion calls for a revision of trade mark law, animated by a respect for consumers’ rights and interests in the electronic marketplace.