Injunctions against Innocent Third Parties: The Case of Website Blocking

The paper discusses the phenomenon of injunctions against third parties that are innocent from the tort law perspective. One such type of injunction, website blocking, is currently appearing in the spotlight around various European jurisdictions as a consequence of the implementation of Article 8(3) of the Information Society Directive and Article 11 of the Enforcement Directive. Website-blocking injunctions are used in this paper only as a plastic and perhaps also canonical example of the paradigmatic shift we are facing: the shift from tort-law-centric injunctions to in rem injunctions. The author of this paper maintains that the theoretical framework for the latter injunctions is not in the law of civil wrongs, but in an old Roman law concept of ‘in rem actions’ (actio in rem negatoria). Thus the term ‘in rem injunctions’ is coined to describe this paradigm of injunctions. Besides the theoretical foundations, this paper explains how a system of injunctions against innocent third parties fits into the private law regulation of negative externalities of online technology and explores the expected dangers of derailing injunctions from the tracks of tort law. The author’s PhD project – the important question of the justification of an extension of the intellectual property entitlements by the in rem paradigm, along with its limits or other solutions – is left out from the paper.

Proportionality of Website Blocking: Internet Connectivity Providers as Copyright Enforcers

Internet connectivity providers have been ordered to block access to websites facilitating copyright infringement in various EU countries.In this paper, the proportionality of these enforcement measures is analysed. After addressing preliminary questions, the recent ECJ ruling UPC Telekabel Wien (C-314/12) and then case law from all Member States are examined from the perspective of proportionality. Finally, five criteria are submitted for proportionality analysis, and a proportionality evaluation is provided. The major observation is that the underlying goal of copyright enforcement has implications on how the scale tilts. In particular, ineffective enforcement mechanisms can be more easily accepted if the goal of symbolic, educational or politically motivated enforcement is considered legitimate. On the other hand, if the goal is to decrease the impact of infringement, higher efficiency and economically quantifiable results may be required

Submission to Senate Standing Committee on Legal and Constitutional Affairs on the Copyright Amendment (Online Infringement) Bill 2015

We argue that safeguards are necessary to ensure human rights are adequately protected. All systems of blocking access to online content necessarily raise difficult and problematic issues of infringement of freedom of speech and access to information. Given the importance of access to information across the breadth of modern life, great care must be taken to ensure that any measures designed to protect copyright by blocking access to online locations are proportionate. Any measures to block access to online content must be carefully tailored to avoid serious and disproportionate impact on human rights. This means first that the measures must be effective and adapted to achieve a legitimate purpose. The experience of foreign jurisdictions suggests that this legislation is unlikely to be effective. Unless and until there is clear evidence that the proposed scheme is likely to increase effective returns to Australian creators, this legislation should not be introduced. Second, the principle of proportionality requires ensuring that the proposed legislation does not unnecessarily burden legitimate speech or access to information. As currently worded, the draft legislation may result in online locations being blocked even though they would, if operated in Australia, not contravene Australian law. This is unacceptable, and if introduced, the law should be drafted so that it is clearly limited only to foreign locations where there is clear and compelling evidence that the location would authorise copyright infringement if it were in Australia. Third, proportionality requires that measures are reasonable and strike an appropriate balance between competing interests. This draft legislation provides few safeguards for the public interest or the interests of private actors who would access legitimate information. New safeguards should be introduced to ensure that the public interest is well represented at both the stage of the primary application and at any applications to rescind or vary injunctions. We recommend that: The legislation not be introduced unless and until there is compelling evidence that it will have a real and significant positive impact on the effective incomes of Australian creators. The ‘facilitates an infringement’ test in s 115A(1)(b) should be replaced with ‘authorises infringement’. The ‘primary purpose’ test in s 115A(1)(c) should be replaced with: “the online location has no substantial non-infringing uses”. An explicit role for public interest groups as amici curiae should be introduced. Costs of successful applications should be borne by applicants. Injunctions should be valid only for renewable two year terms. Section 115A(5) should be clarified, and cl (b) and (c) be removed. The effectiveness of the scheme should be evaluated in two years.

Moments of flux in intermediary liability for copyright infringement

This chapter provides an overview of a recent shift in regulatory strategies to address copyright infringement toward enlisting the assistance of general purpose Internet Service Providers. In Australia, the High Court held in 2012 that iiNet, a general purpose ISP, had no legal duty to police what its subscribers did with their internet connections. We provide an overview of three recent developments in Australian copyright law since that decision that demonstrate an emerging shift in the way that obligations are imposed on ISPs to govern the actions of their users without relying on secondary liability. The first is a new privately negotiated industry code that introduces a 'graduated response' system that requires ISPs to pass on warnings to subscribers who receive allegations of infringement. The second involves a recent series of Federal Court cases where rightsholders made a partially successful application to require ISPs to hand over the identifying details of subscribers whose households are alleged to have infringed copyright. The third is a new legislative scheme that will require ISPs to block access to foreign websites that 'facilitate' infringement. We argue that these shifts represent a greater sophistication in approaches to enrolling general purpose intermediaries in the regulatory project. We also suggest that these shifts represent a potentially disturbing trend towards enforcement of copyright law in a way that does not provide strong safeguards for the legitimate constitutional due process interests of users. We conclude with a call for greater attention and research to better understand how intermediaries make decisions when governing the conduct of users, how those decisions may be influenced by both state and non-state actors, and how the rights of individuals to due process can be adequately protected.

Asynchronicity and the ‘time envelope’ of online annotation : the case of the photosharing website, Flickr

This paper examines a sequence of asynchronous interaction on the photosharing website, Flickr. In responding to a call for a focus on the performative aspects of online annotation (Wolff & Neuwirth, 2001), we outline and apply an interaction order approach to identify temporal and cultural aspects of the setting that provide for commonality and sharing. In particular, we study the interaction as a feature of a synthetic situation (Knorr Cetina, 2009) focusing on the requirements of maintaining a sense of an ongoing discussion online. Our analysis suggests that the rhetorical system of the Flickr environment, its appropriation by participants as a context for bounded activities, and displays of commonality, affiliation, and shared access provide for a common sense of participation in a time envelope. This, in turn, is argued to be central to new processes of consociation (Schutz, 1967; Zhao, 2004) occurring in the life world of Web 2.0 environments.

Scheduling trains as a blocking parallel-machine job shop scheduling problem

In this paper, the train scheduling problem is modelled as a blocking parallel-machine job shop scheduling (BPMJSS) problem. In the model, trains, single-track sections and multiple-track sections, respectively, are synonymous with jobs, single machines and parallel machines, and an operation is regarded as the movement/traversal of a train across a section. Due to the lack of buffer space, the real-life case should consider blocking or hold-while-wait constraints, which means that a track section cannot release and must hold the train until next section on the routing becomes available. Based on literature review and our analysis, it is very hard to find a feasible complete schedule directly for BPMJSS problems. Firstly, a parallel-machine job-shop-scheduling (PMJSS) problem is solved by an improved shifting bottleneck procedure (SBP) algorithm without considering blocking conditions. Inspired by the proposed SBP algorithm, feasibility satisfaction procedure (FSP) algorithm is developed to solve and analyse the BPMJSS problem, by an alternative graph model that is an extension of the classical disjunctive graph models. The proposed algorithms have been implemented and validated using real-world data from Queensland Rail. Sensitivity analysis has been applied by considering train length, upgrading track sections, increasing train speed and changing bottleneck sections. The outcomes show that the proposed methodology would be a very useful tool for the real-life train scheduling problems

Website physical activity interventions : preferences of potential users

Information and communication technologies (particularly websites and e-mail) have the potential to deliver health behavior change programs to large numbers of adults at low cost. Controlled trials using these new media to promote physical activity have produced mixed results. User-centered development methods can assist in understanding the preferences of potential participants for website functions and content, and may lead to more effective programs. Eight focus group discussions were conducted with 40 adults after they had accessed a previously trialed physical activity website. The discussions were audio taped, transcribed and interpreted using a themed analysis method. Four key themes emerged: structure, interactivity, environmental context and content. Preferences were expressed for websites that include simple interactive features, together with information on local community activity opportunities. Particular suggestions included online community notice boards, personalized progress charts, e-mail access to expert advice and access to information on specific local physical activity facilities and services. Website physical activity interventions could usefully include personally relevant interactive and environmentally focused features and services identified through a user-centered development process.

A multi-train movement simulator with moving blocking signalling

Abstract Being as a relatively new approach of signalling, moving-block scheme significantly increases line capacity, especially on congested railways. This paper describes a simulation system for multi-train operation under moving-block signalling scheme. The simulator can be used to calculate minimum headways and safety characteristics under pre-set timetables or headways and different geographic and traction conditions. Advanced software techniques are adopted to support the flexibility within the simulator so that it is a general-purpose computer-aided design tool to evaluate the performance of moving block signalling.

Website customization : exploring a tag-based approach in the Australian banking context

Website customization can help to better fulfill the needs and wants of individual customers. It is an important aspect of customer satisfaction of online banking, especially among the younger generation. This dimension, however, is poorly addressed particularly in the Australian context. The proposed research aims to fulfill this gap by exploring the use of a popular Web 2.0 technology known as tags or user assigned metadata to facilitate customization at the interaction level. A prototype is proposed to demonstrate the various interaction-based customization types, evaluated through a series of experiments to assess the impact on customer satisfaction. The expected research outcome is a set of guidelines akin to interaction design patterns for aiding the design and implementation of the proposed tag-based approach.

Doorway to research : Issues in the development of an interactive website for international graduate students

This paper describes results of a study evaluating the content, functionality and design features of an innovative online website called the Doorway to Research (http://rsc.acid.net.au/Main.aspx) , which was developed to support international graduate students studying at universities in Australia. First, the key features of the website are described. Second, the result of a pilot study involving 12 students and faculty members who tested key aspects of the design, content and functionality of the website and provided written and oral feedback base on task-based questions and focus group discussions are explored. Finally, recommendations for future development are presented. Results of the study indicate general student satisfaction with the website and its design, content and functionality, with specific areas identified for further development.

Frock Paper Scissors [website]

Frock Paper Sissors (http://www.frockpaperscissors.com): curated web based fashion work. Research has focussed on creating a professional and ‘real world’ website (available in the international/public arena) while producing a high quality design and journalistic fashion medium. The hard copy Frock Paper Scissors magazine has been the focus of assessment in a Fashion and Style Journalism class for the last five years, and for the last three years, students from an Advanced Web Design class have been involved in the production of the accompanying web site, http://www.frockpapersissors.com. This project researches the ways in which synergies across design disciplines can be developed through student engagement on authentic design projects. The Frock Paper Scissors website is a curated collaboration of work from the Fashion,Journalism, Creative Industries and Communication Design discipline areas in the Creative Industries Faculty at Queensland University of Technology (QUT). Research focusses on how this authentic assessment task has been integrated into the two design (and communication)classes; discussing the different approaches taken by teaching staff, the challenges faced, and the ways in which student learning outcomes have been improved through interactions between design disciplines. The final curated work is a public/international website which successfully displays student work and engages students from different design (and creative industries) fields on an authentic design project within their studies.

Building engaged, sustainable online communities : a case study of an adventure travel website

This paper will provide an overview of a join research initiative being developed by the Queensland University of Technology in conjunction with the Australian Smart Services Cooperative Research Centre in relation to the development and analysis of online communities. The intention of this project is to initially create an exciting and innovative web space around the concept of adventure travel and then to analyse the level of user engagement to uncover possible patterns and processes that could be used in the future development of other virtual online communities. Travel websites are not a new concept and there are many successful examples currently operating and generating profit. The intention of the QUT/Smart Services CRC project is to analyse the site metrics to determine the following: what specific conditions/parameters are required to foster a growing and engaged virtual community; when does the shift occur from external moderation to a more sustainable system of self-moderation within the online community; when do users begin to take ownership of a site and take an invested interested in the content and growth of an online community; and how to retain active contributors and high-impact power users on a long-term basis. With the travel website rapidly approaching release, this paper begins the process of reflection, outlining the process undertaken and the findings so far aggregated whilst also positioning the project within the greater context of current online user participation and user generated content research.