August 9, 2006

Non-Copyrightable Stats

Posted in copyright, judgments and transcripts at 5:54 am by thelawthoughts

Marty Schwimmer at the Trademark Blog points to a case in the US where it was held that MLB does not own the statistics of baseballers, and therefore cannot prevent others making money from running fantasy leagues which use those statistics.

Well, yeah. I am not surprised that this was dealt with by summary judgment (albeit 49 pages. 49 page summary judgment? Sheesh). My mother even knows that facts are not copyright. It is the way one reduces those facts to material form that becomes the copyright material.

So here is my question – do fantasy league owners use stats generated by the MLB and published by them? If they do, surely that is infringement. If, for example, I run a little basketball fantasy league between my friends, charge them $10 each to enter and get the stats from, that much be infringement. Only if I compile the stats myself am I not reusing the expression of another.

What am I missing here?


August 8, 2006

HC Follow Up

Posted in high court, judgments and transcripts at 1:26 am by thelawthoughts

Further to my previous post, I am going to run a little poll. I can’t work out polling software so comments are welcome, please.

What is the most interesting High Court case this year?

1. Waller – suing a doctor for wrongful life for failure to advise of genetic condition in IVF baby?

2. Theophanus – examination of the interplay between criminal law and ability of the government to seize superannuation of that person?

3. Koroitamana – whether children born in Australia are aliens? I did think this was already decided by Singh a few years ago but I must admit to not having read it yet.

4. Buckley – whether evidence of sex with animals could be taken into account when deciding on an indefinite sentence (my pick)?

5. Cummins – if only because he is a bankrupt barrister with lots ofassets in the wife’s name and a strange lack of tax returns for x years?

6. One of the hundreds of industrial law cases decided this year?

7. Something else? You must specify.

Let’s see what we get.

Is our High Court Boring?

Posted in high court, judgments and transcripts at 1:16 am by thelawthoughts

I have missed the High Court handing down five decisions recently, although when I read the catchwords I am not sure if I have missed very much. When freezing orders to confiscate property can be made, when a limitations period begins to run in the context of post-traumatic stress disorder, apprehended bias of a judge, allowed tax deductions for CityLink, whether an indictment was a nullity because a count was wrongly included and a miscarriage of justice after a badly worded jury direction.

Granted, there was an extradition case which looks quite interesting, but these cases in general just don’t get me excited. They seem to be niche cases, there is very little ground shifting going on. No Mabo or Walton Stores. Now, granted, these cases don’t come around very often, and I’m not reading as many cases as I should, but have any REALLY big cases been decided this year? Or is it just this ho-hum stuff about, well, not much?

I read somewhere a little while ago that Australian authority is being relied on less and less in other common law jurisdictions than it was in the days of, say, the Mason or Barwick courts. Is this because the High Court is deciding less important cases? I am really interested in people’s view of this so please pipe up!

June 26, 2006

MUSU in Liquidiaton v Darren Ray

Posted in criminal law, funny law, judgments and transcripts, university at 7:01 am by thelawthoughts

Every now and then a case comes along that makes one really laugh. Remember Darren Ray? For those of you who have been at uni for a few years, he was the guy who got elected to the Student Union by giving us all $8 vouchers to spend at the UBar in return for voting.

Anyway, he was supposedly one of the driving forces behind the spectacular collapse of the Melbourne Uni Student Union (the other guy was called Scott something, and tried to get elected to a City Council recently. Brimbank maybe?).

Darren Ray and Benjamin Cass, amongst others, were sued by the liquidator for breaches of fiduciary duty and conspiracy. This proceeding related to an injunction sought by the liquidator to prevent Cass publishing material on his blog, in contempt of court.

The injunction wasn't granted, so Cass can still publish whatever he likes about the liquidator's conduct in the proceedings. I'm going to be straight with you, I'm not going to read the whole judgment.

You can, if you like, because from the overview that I took, it seems an interesting case in the evolution in this country of liability for work published in blogs.

Relevance and Discovery in Copyright Proceedings

Posted in copyright, discovery, judgments and transcripts, procedure at 1:39 am by thelawthoughts

Greenwood J on 9 June, 2006 handed down a short but interesting judgement on the extent to which discovery of relevant materials must be made in copyright proceedings. (See Norm Engineering Pty. Ltd. -v- Digga Australia Pty. Ltd. (No.2) [2006] FCA 732)

Basically, emails were sent describing the nature of the Applicant's buckets, as well as a short discussion about how the Respondent's were better because they had taken the features of two of the market leaders and made their own. They didn't want to discover this document (hmmm, wonder why) and so said it was not relevant.

The relevance argument was based on the fact that the Court would determine objective similarity when deciding whether copyright had been infringed.

Greenwood J held it was an essential part of determining objective similarity that emails discussing the early conceptions of the product were examined. He held the documents were relevant because they detailed how the product came into existence, which can be taken into account when determining objective similarity.

The Respondent also complained they had a dodgy IT system, which could not search emails properly, and they had 711,000 emails they might need to read.

Greenwood J, rightly so, was 'essentially unsympathetic'.

The case is set down for trial.

The Court

June 15, 2006

High Court Judgments

Posted in high court, judgments and transcripts at 1:29 am by thelawthoughts

The High Court is like my bus service. Nothing for weeks then five buses, I mean judgments, all at once.

June 14, 2006

Discovery Undertakings

Posted in judgments and transcripts, procedure at 7:46 am by thelawthoughts

As I have had drilled in to me this semester, when documents are discovered, the party discovering gives an implied undertaking that they will not make the contents of the document public.

Can a party to litigation give discovered documents to litigation funders? Yes, they can, according to Finkelstein J in Cadence Asset Management P/L v Concept Sports Ltd [2006] FCA 711, handed down on 2 June, 2006.

The applicant asked the court for permission to pass discovered documents to what might be considered a party that was a 'stranger to the action'. Not in this case, where litigation funders have a sufficient interest in the case to be made privy to discovered documents.

I imagine this is an issue of increasing importance, given the presence of litigation funders on the ASX. 

High Court Reporting

Posted in blogging, judgments and transcripts at 6:13 am by thelawthoughts

I toyed a while ago with the idea of reporting High Court cases as they happened (see the result here) but after discussions with some people it never quite got off the ground.

Does anybody think there is call for immediate discussion of every High Court judgment, as well as significant arguments (ie transcript reporting), or do people find it easier to find information from better sources?

Better still, is anybody interested in actually writing some case notes as the cases are handed down? Does anybody else actually offer this kind of information, other than people like Simon Evans?  

June 12, 2006


Posted in constitution, funny law, judgments and transcripts at 9:52 am by thelawthoughts

I, along with lots of others, have previously noted Inchoate's invaluable service of providing High Court transcript humour.

This is the latest piece of verbal acrobatics of Mr. Bennett, in arguing that murders in lighthouses should be able to be dealt with under the lighthouses power. This would, of course, bring extra criminal legislative power into the hands of the Commonwealth, at the expense of the States.

However, it is the Special Leave application in the same post that got my attention. Go and read the Hich Court transcript here. Mr. Walker from the other side didn't even need to speak, save for his 'we seek costs, your Honour'. Payday. What would he and his learned junior picked up for that court appearance? $1000 each?

The easiest money they ever made. 

Is Appealing Appealing? (updated)

Posted in criminal law, judgments and transcripts at 9:17 am by thelawthoughts

Since Zarah Garde-Wilson is the subject of every second search that drives traffic to my blog, I thought I should write another post about her. People obviously want to know.

Links are somewhere, but she has abandoned her potential appeal against her contempt of court conviction. This in effect means she is trading off her practicing certificate on the chance she would go to jail for a month or so.

That is such a tough call for a person to make. For me, I would probably have a crack. I would figure that my career was that important. I don't think they would have sent her to the big house. If you read Harper J's first instance judgment, he was big on her having been through enough. I think the bench get it.

Here is a question. Would you testify? Would you be scared? Would you be scared enough to trade in your career? These are the decisions people make every day I suppose.

I also guess that one can always find another career, however it is tough to forget going to jail.

UPDATED: This post had a page view within five minutes of being posted. Incredible. 

June 11, 2006

Citing Legal Blogs

Posted in blogging, judgments and transcripts, law reform at 7:23 am by thelawthoughts

Ian Best has put together an incredibly interesting list of citations in judgments to legal blogs.

Welcome to the future of legal scholarship. It is only a matter of time until judges here start to cite blogs by legal academics in Australia.

June 9, 2006

Appellate Judges

Posted in funny law, judgments and transcripts at 6:18 am by thelawthoughts

See David Starkoff for a great quote about appellate judges, from the perpsective of trial judges.

I would just post his post in full, but that is naughty.

Community Service in Zambia

Posted in funny law, judgments and transcripts at 4:58 am by thelawthoughts

This UK businessman will be thanking his lucky stars– after overstaying his visa in Zambia, he was sentenced to 15 days gardening at, guess, the Zambian Immigration Department!

Imagine we applied that policy in Australia. Right, all you queue jumpers, get out and mow the lawn, then we will deport you. We would save a heap of money on those expensive outback detention centres, and would save even more on the gardening bills in Canberra. I hear there is a lot of grass up there.

June 8, 2006

Alternative Dispute Resolution

Posted in funny law, judgments and transcripts at 7:50 am by thelawthoughts

Writing my Civil Procedure exam notes, which deal extensively with alternative dispute resolution, means I am in a frame of mind to be receptive to quirky methods that do not involve the words mediation, negotiation or arbitration.

Having said that, this case is not what I had in mind. Evidently, two lawyers who could not agree on the venue for a hearing were ordered by the court to play rock, paper scissors to determine the outcome. Yes, by court order. This is a binding order which in punishable by contempt of court proceedings.

It makes one ask the question, 'why can't they just figure it out?'