The role of the informal media remans controversial. The recent District Court decision to compel well known commentator and blogger Whale Oil to reveal confidential sources in the Auckland Mayor’s sex scandal on the basis that his site was not a “news medium” illustrates why. http://nzh.tw/11165217
Big Data Wins Big!!
Have just read a very interesting item on Red Bull racing – How an upstart came to dominate Formula 1 with superfast internet and tons of data
It seems, it takes 100 gigabytes of data to win a race – each car is fitted with around 100 sensors throughout the car. Data from each race arrives in “real time,” at the team’s computer centre in the UK during the race allowing instant decision making and adjustment.
It is interesting to contrast this with an item in the Herald today http://nzh.tw/11134945
about local lad Asim Khan who ran Oracle Racing’s database that fed “live” performance data to the crew and sent Team New Zealand home empty handed.
It seems the 300 odd sensors on the boat allowed the speed with which performance data was conveyed and analysed to be done in real time – 3000 variables running about 10 times a second – measuring everything from strain on the mast to angle sensors on the wing sail that monitor the effectiveness of each adjustment.
See the correlation?
2.4 billion people worldwide now have access to the internet. For practitioners and clients alike, this provides both opportunities and risks.
While we often talk about the growth of the so called “social media” this is only one part of a much wider trend . The “new media” encompasses on-demand and interactive access to content – this material is available everywhere and at anytime on the device of your choice. It is disseminated through an array of new tools – blogs, independent websites, “raw” newscasting, Google searches, youtube, …….the list goes on!
Barrister Josh McBride and I will be dealing with these issues in a seminar put on by the Auckland District Law Soc on 6 August. The session will be chaired by Stephen Mills QC.
Any comments or suggestions are welcome.
On 14 May 2013 the Government introduced a supplementary order paper which proposed further amendments to the its controversial computer program exclusion, forming part of the Patents Bill.
The exclusion is of a computer program per se – with an attempt to define what that means. The two most relevant clauses are:
Clause 10A (3):
“A claim in a patent or an application relates to a computer program as such if the actual contribution made by the alleged invention lies solely in it being a computer program.”
Clause 10A (4):
“The Commissioner or the court (as the case may be) must, in identifying the actual contribution made by the alleged invention, consider the following:
(a) the substance of the claim (rather than its form and the contribution alleged by the applicant) and the actual contribution it makes:
(b) what problem or other issue is to be solved or addressed:
(c) how the relevant product or process solves or addresses the problem or other issue:
(d) the advantages or benefits of solving or addressing the problem or other issue in that manner:
(e) any other matters the Commissioner or the court thinks relevant.”
The revised approach is similar to that adopted by the English Court of Appeal in Aerotel Ltd v Telco Holdings Ltd & Ors,  EWCA Civ 1371 – requiring an assessment to be made of the actual contribution made by the inventor, followed by an assessment as to whether that contribution comes from within an excluded category or from outside that category.
This proposed change has received wider acceptance within New Zealand, particularly from the software industry and there now seems to be no impediment to the legislation finally passing into law.
Here is the government’s press release on its proposed new cyber-bullying bill as discussed by me today (4 April 2013) on Radio New Zealand.
Time’s up for cyber bullies
Justice Minister Judith Collins has announced a raft of new proposals to hold cyber bullies to account for their bullying and harmful online behaviour.
“I am pleased to have developed a set of measures that aim to stop the growing incidence of cyber bullying and its devastating effects, particularly for young people.
“Many New Zealanders share my serious concerns about this problem as the reach and impact of bullying has increased considerably in the digital age.
“Tormenters are able to harass their targets 24 hours a day, seven days a week, wherever they go, and the trail of abuse lives on in cyberspace, following victims for years.
“These new measures send a clear message to cyber bullies: Time’s up. Your behaviour is not acceptable,” Ms Collins says.
New proposals to protect victims of cyber bullying and hold perpetrators to account include:
Creating a new civil enforcement regime that includes setting up or appointing an approved agency as the first port of call for complaints.
Allowing people to take serious complaints to the District Court, which will be able to issue sanctions such as take-down orders and cease-and-desist notices.
Making it an offence to send messages and post material online that is grossly offensive, indecent, obscene, menacing or knowingly false, punishable by up to 3 months imprisonment or a $2,000 fine.
Creating a new offence of incitement to commit suicide, even in situations when a person does not attempt to take their own life, punishable by up to 3 years imprisonment.
Amending the Harassment, Privacy and Human Rights Acts to ensure they are up-to-date for digital communications. In some cases, existing laws were written before cell phones, instant messaging devices and social networking websites became common communication channels.
Ms Collins says the proposed new approved agency will help people get the support they need to stop cyber bullying quickly.
“People needing help will get fast support including liaison with website hosts and ISPs to request takedown or moderation of clearly offensive posts.
“The agency will also be able to investigate and resolve complaints directly, with the most serious complaints being referred by the agency to the District Court which can issue take-down orders and cease-and-desist notices.
“Our new anti-cyber bullying proposals protect victims and hold perpetrators to account. No one should ever be subject to this kind of cowardly attack – now with the right support and modern laws in place, victims will no longer have to suffer,” Ms Collins says.
A bill giving effect to the changes will be introduced to Parliament to be passed later this year.
There have recently been a couple of articles in the Herald on the proposal to allow software patents as part of the government’s overhaul of the Patents Act – see Pat Pilcher: “Software patents stoush rolls on” http://www.nzherald.co.nz/technology/news/article.cfm?c_id=5&objectid=10865580
I would like to comment briefly on a couple of observations he makes and present a slightly different view.
First, he says that even though the Commerce Select Committee and numerous industry experts recommended that software be excluded from patentability the government has essentially ignored them. Numerous industry experts also strongly argued against banning software patents outright i.e. a rather blunt blanket ban – regardless of the merit of the particular invention concerned. They also questioned the way the issue had been raised at the select committee stage, thereby taking many by surprise.
Mr Pilcher then goes time to say that “the experts” say it would “provide large lawyered-up multinationals with a means of tying smaller kiwi software developers up in court, effectively stunting our homegrown software industry”. Just who are these experts? What about a potentially relevant contrary view? Why should the software industry be treated any differently to any other industry? The homegrown software industry has to compete in a world in which software patents are a reality. If we create an open source Nirvana in New Zealand is that the way to make us competitive in international markets? I doubt it is. Further, this argument ignores the fact that many local software companies understand and use the patent system very successfully.
Mr Pilcher then quotes Clare Curran’s argument that New Zealand’s political processes are being manipulated by big business. Even if we assume for argument’s sake that this is correct, what is the difference between this and the Commerce Select Committee being influenced by the open source movement and recommending changes to our law which would have put us out of step with virtually all of our major trading partners?
The argument then proceeds on the basis that the patent system works to the advantage of multinationals and that over the last 20 years the estimated cost to the US economy of patent litigation has been an estimated half a trillion US dollars. Again, even if we assume this is correct, relatively young companies such as Google, Facebook, Amazon and YouTube have prospered and grown in this environment. Equally, there has been significant innovation and growth in the Internet environment, notwithstanding the existence of software patents.
David Lane, the President of the NZ Open Source Society says that there will be very little incentive for start-ups to consider New Zealand. With respect, why should we be any different to start-ups in countries such as Australia, the US and the UK? It’s a tough world out there and we have to learn how to cut it both locally and internationally, not just in the software industry but across the board.
Mr Lane then goes on to assert that the benefits clearly outweigh the negatives. Perhaps so from the open source movement’s way of thinking, but like most issues there are pros and cons and I don’t think the situation is quite as clear cut or dire as Mr Lane believes.
Specific knowledge important in considering legality of Mega website
The new Mega website fronted by Kim Dotcom appears to have been set up to ensure that Mega does not have specific knowledge of the information which is being stored or shared, intellectual property lawyer Clive Elliott says.
Mr Elliott, who is convenor of the New Zealand Law Society’s Intellectual Property Law committee, says knowledge is a key aspect in any consideration of the legality of Mega.
“The Mega service is an API – applications programming interface – which is said to provide ‘user-friendly could storage with security and privacy’,” he says. “Two important points arise from this when looking at whether the service is legal.”
Mega is seeking cloud storage partners, provided they are located outside the United States.
“The plan is to store data on servers run by third parties, thereby stepping back and largely farming out this role. It also means that, arguably, the US authorities would have to take any legal action outside their own jurisdiction. As can be seen with the extradition proceedings, this would add a whole range of complexities to any potential proceedings.”
All Mega users will automatically obtain a unique and randomly generated encryption key, Mr Elliott says.
“This means that the user alone will have access to that information. They alone will be able to decide what to store and what to share and how. This is another way in which Mega is purporting to step back from the process.
“On the face of it, Mega will not have first-hand knowledge of what is being stored or shared by its partners or customers or any intermediaries.”
Mega will still need to remove any infringing material from its site.
Mr Elliott says that if and when content owners draw offending material to Mega’s attention, its “no need or wish to know” policy will no longer shield it from liability or attract safe harbour immunity.
Contact: For further information please contact Clive Elliott, convenor of the New Zealand Law Society’s Intellectual Property committee. Clive is available on (021) 389 121 or through Shortland Chambers where he works on (09) 307 9808.