January 31, 2006

The Decline in Civility

Posted in Uncategorized at 2:24 pm by thelawthoughts

If you promise not to tell anybody, I am going to post the entire introduction to today’s Crikey.com.au newsletter (subscribe here). THIS IS NOT MY WORK AND I AM NOT REPRESENTING IT AS SUCH!:

*****In a thoughtful speech to a Law Society dinner in Sydney last night, NSW Chief Justice Jim Spigelman reflected on “the decline in the level of civility in our society.” Referring to a “growing concern with personal conduct in many areas of discourse,” he cited examples like “the emergence of road-rage; the behaviour of parents at school sporting events, referred to as the ‘ugly parent syndrome’; the prevalence of offensive language in many spheres of social interaction and popular culture; the sensationalism of a media driven by declining circulations and audiences; the indifference to the tranquillity of others by the infliction of noise, whether from boorish conduct or mobile phones; the vulgarity and rudeness of reality TV shows; the selfishness of littering; the virtual disappearance in common discourse of words such as ‘please’, ‘thank you’ and ‘sorry’.”

So what should be done about the decline in civility? Well, according to the Chief Justice, relationships of civility, tolerance and trust can’t be left to individuals – “they must be institutionalised.” Evidence of “civil conduct” in the law can be seen in the “language of advocacy,” he said – “it would never cross the mind of a barrister to address me in court, and generally outside court, by my first name. That is a privilege reserved for 18 year olds in telephone call centres.” All too often, says Justice Spigelman, “rudeness is justified as a form of egalitarianism,” and he hopes that “others learn from the ability of this profession to resist the decline in civility apparent elsewhere in society.”

While most people of a certain age would probably agree with the Chief Justice’s assessment of the current state of civility, his plea for effectively legislating civil behaviour could be seen as a judicial solution to a societal problem. While the formality of the legal system is important to maintain its role as the guardian of the law, the idea of applying the same kind of institutionalised “civility” to other places in society is quaint, even if the failure to adopt such a standard means risking being called by your first name by “18 year olds in telephone call centres.” *****

Hear, hear, Your Honour. I agree with his sentiments wholeheartedly. However, whether we can really institutionalise civil behaviour is difficult to tell now. Obviously, we have and can in the more formal legal institutions, but there are plenty of very informal and uncivil solicitors and barristers going around as well. Interesting question and we have already discussed something similar on this blog.


eBay and Third-Party Liability

Posted in Uncategorized at 11:09 am by thelawthoughts

The NY Times has an article here called ‘Seeing Fakes, Angry Traders Confront eBay’ (rego required).

It examines the liability of eBay for fakes sold on its website. Tiffany, that fabled brand, found by buying up pieces of its own product on eBay that 3 of 4 were fakes. It is suing eBay for ‘facilitating the trade of counterfeit Tiffany items on the site’. In Australia, I think they would probably sue under passing off, or trade mark infringement. However, the case isn’t brought against eBay because it is SELLING fakes, but because it ALLOWS OTHERS to sell fakes.

In Australia, s120 of the Trade Marks Act provides as follows:

“A person infringes a registered trade mark if the person uses as a trade mark a sign that is substantially identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered. ”

Essentially, an action in trade mark can only be brought under the Act, where a person uses the mark or sign as a trade mark. In this case, the usual analysis would not wash. Tiffany would need to act against the infringer, rather than the marketplace provider. It would be like suing the owners of the Queen Victoria market for infringement of TMs just because somebody sells infringing products in the market. I just don’t think this is eBay’s fault, especially given that it makes huge efforts to monitor its listings.

Further, I don’t think an action in tort, say for negligence, would work either. eBay simply does not owe a duty of care to those shopping on its site.

This case is essential for the entire future of online commerce, because if firms such as eBay find themselves liable for random people in Romania selling fake tshirts or CDs, they open themselves up to not only civil liability, but criminal liability also. eBay in my experience has a good feedback system and they provide escrow accounts if you are not sure of the providence of your items.

When somebody gets tricked, that sucks. However, no market owner can ever prevent every single case of fraud or good faith mistakes. A loss for eBay in a case like this would, quite simply, be a disaster.

January 30, 2006

Do you trust Wiki to tell the truth?

Posted in Uncategorized at 5:02 pm by thelawthoughts

I find this post at Internetcases.com fascinating.

Evan Brown points to a number of cases in the US in which Wikipedia has been used to fill in background details. In the inevitable push online and into open source, it seems the wisdom of the crowds may eventually prevail for FACTUAL information in court cases. So, when we come up against a question such as ‘where is the Sea of Okhotsk and what happens in it’, we may end up just turning to Wiki and letting the crowd do the thinking.

What if Wiki is wrong?

This area of legal practice has always fascinated me. We, as lawyers, are generally crap at things like science, or medicine, or computer technology. Not always, mind you, but often. Given how much of law is bound up in science (think patents and DNA in criminal law), medicine (think accident compensation) or computer technology (just about everything) we are forced to take the word of the person in the dock as ‘truth’. If the nice man with the beard says it must have been the defendant at the scene of the crime, who is Your Honour to judge?

TRIPs and Public Health

Posted in Uncategorized at 4:50 pm by thelawthoughts

I forgot about this one too, in which the IPKat discusses the amendment of the TRIPs Agreement.

Essentially, drug patents are stricly protected by the TRIPs Agreement. Article 31 provides that, where a Member’s laws allow that Member to produce, say, a drug without the consent of the patent holder, a long list of conditions must be fulfilled. This process is called compulsory licencing, and works so that the patent holder cannot prevent the Member producing a drug in times of public health emergencies.

A crucial condition is 31(f), whereby a Member can only produce compulsorily licensed drugs for its domestic market. This sounds reasonable enough, in that you can’t produce drugs protected by patent then export them to any who will buy them. However, when you think about it, this means that a country in which people are too poor to buy essential medicines must have a functioning generic pharmaceutical industry. Of course, this is often not the case.

As part of the Doha round of trade talks, Members made a unanimous Declaration (subsequently called the Doha Declaration) that this provision would not apply to Least Developed Countries. Therefore, a country which is underdeveloped but can make some drugs could then export the stuff to other LDCs without penalty. This made it much easier in theory for LDCs to get together and produce drugs which prevent medical conditions that effectively perpetuate their status as LDCs.

However, because this was only a Declaration, it was not really taken all that seriously. This amendment to the legal text, however, is much more significant. It takes away the ambiguity that surrounded the compulsory licensing provisions and would, for example, force a Dispute Settlement Panel to interpret the TRIPs Agreement in favour of the LDC producing the medicine for its group of underdeveloped friends.

Marketing and Law Firms

Posted in Uncategorized at 4:36 pm by thelawthoughts

Whilst I am not an expert, Seth Godin must be one of the great marketers today. I have had this post saved up for ages and read it all the time.

It makes me think about marketing in the context of a/my law firm. What I see is large firms making huge marketing efforts. Some firm sponsors law school bbqs, so that we have sausages courtesy of X. Someone else sponsors the Careers Guide and the Law Ball. These firms have their marketing strategies down and they seem generally to get the results.

My firm, being very small, simply doesn’t do much marketing. We are too busy getting work out the door to do anything but basic customer service and good product performance in the form of client outcomes. These marketing activities are simply those which go along with the lawyering we do, rather than as a result of any specific efforts on our behalf.

Recently, I have begun to push for a bit more ‘marketing’. Why don’t we have a newsletter? Why don’t we keep in touch with clients to inform a big batch of them about changes in the law, rather than have them call up one at a time? Why do we handle work which doesn’t earn any money? For example, we do TONNES of conveyancing. Despite upcoming changes in the law to restrict access to that market by providers, there is simply no money in conveyancing, unless you are doing big transactions. So why are we wasting time with small clients who own one house and we charge $300 for 10 or 15 hours’ work?

Surely, at risk of pissing a few clients off, we are better saying ‘Sorry, we just can’t take that work on’. If we weren’t so busy doing the small work for loss-making clients, we could focus upon more profitable, rapid repeat clients with whom we have a steady and solid relationship. Then, also, the partners would have more time to think about proper marketing, apart from getting to spend a bit of time doing what they want to do.

Sometimes it is a good idea to say no.

January 27, 2006

Amazon sale

Posted in Uncategorized at 2:29 pm by thelawthoughts

Amazon is having a 4-3 sale on lots of books.

Why do they do this to me??

January 23, 2006

Free Speech and Incitement redux

Posted in Uncategorized at 1:17 pm by thelawthoughts

In light of our conversation last week, there is a nice piece on Opinio Juris about Abu Hamza, who is on trial in London for incitement here.

Essentially, this speech highlights there is a continuum on which we must place acts of alleged incitement. Then, we have to draw the line on the continuum over which incitement becomes criminal. This guy is clearly a criminal.

Whilst I would not suggest Alan Jones and other broadcasters before the Cronulla riots are at the same point on the continuum, it throws up interesting questions about exactly where we should draw that line.

Are we going to crash?

Posted in Uncategorized at 1:15 pm by thelawthoughts

I’m never quite sure whether Dave Pollard makes me alarmed, amazed or just plain amused.

If you have nothing to do for five minutes, read his vision of the future here.

January 19, 2006

Funny of the Day

Posted in Uncategorized at 11:10 am by thelawthoughts

I know I am linking a lot lately, but that’s probably because I am at work and, frankly, have more important, but decidely less enjoyable things to do!

However, I have been saving this link up for ages. The blog, A Criminal Waste of Space, is written by a trial judge in California.

The above is possibly the funniest case I have heard of – the decision turned upon whether or not a cow qualified as a ‘motor vehicle’ for insurance purposes.

A must, must read.

Groucho Marx and Generic Movie Titles

Posted in Uncategorized at 9:40 am by thelawthoughts

Given our discussion on generic terms yesterday, here is a link to a famous letter from Groucho Marx to Warner Brothers, who were trying to stop the Marx brothers using the movie title “A Night in Casablanca’.

Hat-tip: LawFont

January 18, 2006

Just Say No

Posted in Uncategorized at 4:35 pm by thelawthoughts

Ever feel like you have been run over on the information superhighway?

Just say no.

Uggs again

Posted in Uncategorized at 1:59 pm by thelawthoughts

Given the substantiality of comments, I decided I should probably put in a bit of spade work on this one.

I am completely unsure of how long uggs have been around, but can tell you that Decker Outdoors Corporation trade marked ‘Ugg Australia’ in Feb, 1999. There are heaps of other ‘uggs’ registered also, such as Kris Kros Ugg Australia.

My guess is that Decker bought a company, along with a registered TM, then tried to stop all the other uggers using it. The other uggers one, it seems.

Therefore, one can use a non-generic term like Kris Kros Ugg, but can’t just register Ugg on its own. See what I mean?

US euthanasia

Posted in Uncategorized at 10:01 am by thelawthoughts

The US Supreme Court has handed down its decision in Gonzales v Oregon (briefs here), although the opinion is not yet on the SCOTUS website.

Report here.

Basically, the State of Oregon has a law allowing terminally ill patients to be prescribed with lethal doses of drugs, provided a the doctor and patient have jumped through a list of hoops.

The Bush administration wanted to challenge this law and based its challenge upon whether the State of Oregon had breached the Controlled Substances Act, which regulates the provision of restricted drugs by anybody, but includes doctors.

I will read the opinion with interest, but imagine that the State law was held not inconsistent with the federal Act.

I note that even though O’Connor voted with the majority, it was still a 6-3 opinion. Once O’Connor is replaced, probably by the much more conservative Alito, it will be interesting to see whether the Court does actually shift position on cases such as this.

Ugg Boots and successful marketing

Posted in Uncategorized at 9:17 am by thelawthoughts

Kim Weatherall points out that ‘Ugg Boots’ is now a generic term and therefore cannot sustain a trade mark registration.

Basically, if a term is generic, it means that use by one person or organisation on one product is disallowed, on the basis that nobody should be able to monopolise a generic term.

This, to me, is one of the great contradictions of trade mark law. On one hand, we create an incentive for a term to be marketed so that it is associated with a particular item. Then, if the marketing is excessively successful, we take away the reward that the system is supposed to generate, in terms of a monopoly over that term.

Think of phrases like ‘Eski’. Originally, a product name, marketed as a trade mark. Now, the generic term for plastic bins in which one places ice and drinks/food to keep them cool. The marketing was so successful that the product is an eski, regardless of who makes it. So successful that we remove the reward for the original makers of the Eski (not eski).

To my utter delight, on my recent trip to New Zealand, I discovered they are called ‘chilly bins’. Or, as my Kiwi friends say, ‘cheely buns’.

January 17, 2006

And….International Law

Posted in Uncategorized at 3:15 pm by thelawthoughts

The 25 biggest topics of the year past in international law and international relations, according to Opinio Juris.

No surprise that terrorism, the UN, the ICC, torture and Guantanomo issues feature prominently.


Posted in Uncategorized at 2:58 pm by thelawthoughts

I am catching up on my backlog of reading and must be up to the end of 2005 bit, because I keep coming across stuff like this.

A round up of funny WA court transcripts (yes, there are such things) from Larvatus Prodeo.

The Dangerous Man

Posted in Uncategorized at 10:58 am by thelawthoughts

Dave Pollard shares his collation of dangerous ideas.

If you don’t have much time or energy, just skip down to the dot points.

Tech and IP Predictions

Posted in Uncategorized at 10:43 am by thelawthoughts

I suppose at the beginning of every year some predictions have to be made. Given that I suck at them, I will defer to much better judgment than my own.

Tech/IP predictions: Ed Felten

Intellectual Property forecast: Kim Weatherall

January 12, 2006

Reenacting of Crimes

Posted in Uncategorized at 3:15 pm by thelawthoughts

Utter madness.

What judge on this planet, apart from this one, would let a prosecutor reenact a stabbing in a court room?

How does that not prejudice the defendant? Firstly, the reenactment has to be correct in its particulars, which is virtually impossible. Was the prosecutor present when it happened?

Secondly, this kind of emotive scene always provides an association between the nasty, blood spattered crime scene and the person in the dock, whoever they are and whatever their guilt or innocence.

Photos or nothing, I say.


Posted in Uncategorized at 3:09 pm by thelawthoughts

Rant of the Day

Why won’t the music and movie industries learn? There is no point chasing the proprietors and programmers for eDonkey, BitTorrent, Grokster, Kazaa, Napster or any other ‘illegal’ P2P service. There is even less point chasing individual infringers, who download songs on a daily basis, even if they have 1000 illegal downloads on their computers.

Yes, they keep winning the cases. However, the costs of (1) legal fees and (2) antagonised customers must be huge, especially given the return. For their investment, the industries receive what can only be described as a temporary reduction in illegal downloading whilst those who used the service find another.

Learn from Apple, people! The best way to deal with the problem is turn it to your advantage. You will never beat people by shutting down a service which is easily replicated. Why not change your business model so that you make money out of technological shifts? Don’t fight it, people, go with the flow!

There is a caveat, however. Shutting down eDonkey would be a BIG win. Did you know eDonkey accounts for 50% of ALL internet traffic? HALF of the ENTIRE amount of data passed around the internet is in the form of songs and movies on eDonkey.


Complicity in crimes by a Head of State

Posted in Uncategorized at 2:25 pm by thelawthoughts

PrawfsBlawg discusses a recent case in Texas arguing that the Pope was complicit in sexual abuse, because he covered up such incidents before he became Pope. It seems, however, that the Pope is being sued in tort, rather than for criminal liability.

The Court reportedly held that the Pope had Head of State immunity, even if he was complicit. I am not sure how complicity works in tort, but in criminal law, if you are complicit in the crimes of another, you are basically responsible as if you had committed the crime yourself.

This raises the interesting question of whether the Pope should have such immunity. As we all know, after the Pinochet case, crimes against humanity can be tried even when committed by a Head of State. I am unsure whether less serious crimes can be tried whilst the HoS remains such, although Silvio Berlusconi has been arguing against that proposition in his bribe judging case.

This is of course a special case. Given that the Pope is appointed for life, should he retain this HoS immunity for life also? Does such an appointment wipe away any sins of the man, before he becomes the Pontiff? Or should such immunity be dropped because there is no chance of prosecution after his term ends?

This case also raises the very interesting question of why the Holy See is even a ‘State’, although it is recognised as such by international law. Geoffrey Robertson for one argues, as I recall, that this is a ridiculous state of affairs (see Crimes Against Humanity – a WONDERFUL read). I found it funny that during the Rome Statute for the ICC negotiations, the Holy See tried to include drug smuggling as a crime against humanity. This probably would have been fine, except for the slight problem that the Court is located a half an hour’s drive from Amsterdam. This just goes to show how out of touch the Holy See actually is.

In any case, I think if they can prove there WAS complicity in the crime on the part of Ratzinger, there is no reason why he should not face the penalties imposed by the Court, although whether he is subject to that jurisdiction, or could be forced into the jurisdiction for a hearing, is of course unlikely.

Do you ‘respect’ your neighbours?

Posted in Uncategorized at 2:15 pm by thelawthoughts

The UK government is discussing its new ‘Respect’ program. It builds upon the foundations of anti-social control orders, which can be used now by UK police to move people on, stop them hanging around in shopping centre car parks, or spitting on the footpath. This latest extension includes the ability to evict people who excessively disturb their neighbours.

The underlying policy goal as I see it is to alter the culture which allows anti-social behaviour to flourish. I am all for this type of policy, however am unsure whether the law is the appropriate instrument for achieving it. These kinds of laws are generally fairly blunt, open to discretionary application and probably do not substantially alter the behaviour. The flip side is further antagonisation of a group of people who are already antagonised.

So, if we start from the position that this kind of behaviour should be reduced as much as possible, is the law the best means of achieving the goal? Are on the spot fines for pushing a trolley around a car park the best way to stop the behaviour? Should people caught spitting be forced to clean up city streets? Or should people be educated better on why anti-social behaviour is unacceptable? Should more options be available for youth: more classes, sporting facilities, other activities to keep them occupied? Or are they the kind of people for whom these incentives would not be attractive?

I wanted to float a few ideas departing from the standard assumption that to change behaviour, harsher laws do the trick.

January 10, 2006

Future Fund

Posted in Uncategorized at 10:03 am by thelawthoughts

My Crikey email yesterday had a quick peek at the Future Fund, set up to invest the proceeds of the Telstra sale on behalf of future generations of Australians. I would love to quote the whole thing, but since its for subscribers, I probably shouldn’t (copyright and all!).

It discussed an uncited SMH article (which I can’t find) that pointed out the government’s intention that the Trustees of the Future Fund ‘will take a vigilant and active role in the companies it invests in’. I assume this means the trustees will invest in companies, then push for corporate governance change and better shareholder value. For any other investor, including institutional investors, this would be fine. I am a bit worried about the same principle being applied by those running the future fund. Yes, they are supposed to be independent, but I don’t trust our government to ensure that is the case.

My understanding is that the point of the Telstra sale is to release the company from government interference and allow it to run completely as a private enterprise, with no government spots on the board and other signs of government management. This government ran its election campaign based on lowering the level of government influence over the economy. I am thinking specifically of the Telstra sale, but also the IR reforms and VSU. They are all based upon better releasing free market forces.

Why, then, should the government push for better governance or shareholder value in particular cases? Given the assumption that the trustees will not be independent, this is the same as the government introducing legislation which deals with corporate governance or better shareholder value at, say, the National Australia Bank. Legally, it can’t do that. Laws must be made on a general and not specific basis. It follows that the government should be pushing for better coporate governance at the general level, not by picking undervalued or badly managed companies and generating better returns.

If our government wants to get itself out of business, it cannot then turn around and get itself into shareholder activism. They can’t have it both ways. If they are interested in the free market, it follows that the better course of action is to give the proceeds of the Telstra sale back to the people of Australia and let THEM pick undervalued companies.