Guilty of Infringement of Copyright - Lab Report Example

MEMORANDUM OF ADVICE Mr. Teddy Craine, Partner Articled clerk September 22, 2005. CLIENT: Mr. Mr. Boxer Boxer and Juicy Bones Re: Copyright issues on downloaded Music, The issue of Spam, Mother’s will and State Arms, Professional negligence of Solicitor --------------------------------------------------------------------------------------------------------------- Executive Summary: Mr. Boxer may be liable on a copyright infringement suit for downloading the music. In the event of legal action, he is advised to contest it on the grounds that he is not commercially in the business of making and selling records and derived no economic benefit whatsoever from the transaction. In regard to the SPAM issue, options to consider are the filing of a suit under Section 478.1 of the criminal Code Act. However, in view of the difficulties in prosecution of an unseen party who cannot be contacted and the incomplete nature of SPAM legislation it is recommended that Mr. Blocker enroll with a Spam blocking service. The Mother’s will offers no remedy to prevent the estate going to his sister’s children, unless Mr. Boxer can provide some proof of his mother reluctance to pass on her estate to them, in which case remedy may be sought under the informal alteration clause of the Wills Act of 1970. In regard to the Queensland State of Arms, Mr. Boxer is advised to meet the reporter and press his claim as a loyal citizen. A suit for professional negligence against the solicitor is not recommended at this time, unless some definitive proof is available to satisfactorily prove to the Court, the solicitor’s negligence in carrying out Mr. Boxer’s mother’s instructions. COPYRIGHT ISSUE: Are Mr. Boxer Boxer and Juicy Bones guilty of infringement of copyright? As far as the downloaded of music is concerned, this was not done at Mr. Boxer’s instigation but was the doing of his employee, Jonathan. However, in respect of performance of a sound recording, whether or not Mr. Boxer’s permission was obtained, he will nevertheless be liable for the performance, being the owner.1 Mr. Boxer has exhibited the music publicly without specific license from the owner of the copyright2 , but it must be stated that Mr. Boxer’s store Juicy Bones may be considered as an enterprise not in the business of making or selling records.3 Since the performance of the music is not the primary source of income, Mr. Boxer can justifiably put forth a case of not having reasonable grounds for believing that such a background performance for the video detailing services offered to dogs at his café would constitute infringement of copyright.4 However, should there be an action of copyright infringement against Mr. Boxer, he would have to be prepared to provide proof7 that he was using a non infringing copy.5 This could be a problem for Mr. Boxer, since the music was downloaded off the Net using a P2P network, against which there have been many copyright infringement suits filed by artists and recording Companies6. Also, in the case of an infringement action, another aspect that will be considered is whether Mr. Boxer took any steps to prevent his employee from downloading the music.8 However, copyright is said to be infringed on a sound recording when it is imported into Australia for the purpose of selling or hiring the article for use by the public9. Moreover the responsibility for any infringement action must also be shared by the ISP provider who is responsible for providing the medium through which communication of the music took place. Remedies available to Mr. Boxer: The copyright system imposes “ordinary and reasonable” limitations on the creative process,10 by requiring that a song or a piece of music requires permission from the creator of the song or the music before it is used. But on the other side of the coin is the argument that certain products are in the “public” domain and therefore accessible in the public realm, which may be distinguished from private ownership11. Moreover, the most important issue here is the fact that Mr. Boxer was not making use of the music itself as a commercial item, he was not profiting directly from its sale or distribution, because he is not in the business of public sound performances. The major purpose of the video was to portray the services available at his dog clinic, the music only formed the background and he has accrued no economic benefit from the use of the recorded music. Therefore, while there is ground for a cause of action against Mr. Boxer, it may not stand. SPAM ISSUE: Can Mr. Boxer sue the spammer who sent the offensive mail? Current legislation that exists on the Spam issue is included in Section 52 of the Trade Practices Act, in combating spam originating in Australia, which is deceptive in its body or in its headers.12 New legislaiton is being framed in view of the fact that Spam has become such a huge problem. The problems inherent in the invoking of the privacy Act to combat spam mail have been spelt out in an report prepared by Australia’s National Office for the Information Economy (NOIE)13, and it is not yet clear how effectively the Privacy Act can be used as a remedy for action against Spam. But there will be some legal options available to Mr. Boxer under the Criminal Code Act. Since in this instance, the e-mail message appears to have been generated indirectly through the action of downloading the music, added to which the contact telephone number appears to be a non working number, it appears that the spammer has used open relay mail servers in order to mask his or her real location. In such an instance, this may be a breach of the Commonwealth Criminal Code Act of 199514. There may also be some relief available under the Broadcasting Services Act15, which regulates Australian Internet content and Mr. Boxer may be able to file a complaint against the spam mail he has received, propagating offensive material on the web. Mr. Boxer could also consider contacting SPEWS (Spam Prevention early Warning System) and placing the senders e-mail addresses on their list so that they are blacklisted and will be unable to contact him or other e-mail addresses since the ISPs will block the addresses. Other spam blocking services may also be considered by Mr. Boxer, although he must be made aware of the fact that such spam blocking services could themselves be sued by spammers.16 Since spam legislation is still at a relatively undeveloped stage in Australia, Mr. Boxer’s best option would be to enroll himself with a good Spam blocking service that would ensure that such offensive incidents are minimized. Will Mr. Boxer’s sister’s children inherit their dead mother’s share of his mother’s estate? The Wills Act of the Australian Commonwealth is quite clear on disposition of wills and states that the disposition of a will is not altered by an alteration of the estate or interest of the testator.17 Therefore, by applying the statutory substitutional gift clause18, the benefit in the share of the estate which should have passed over to Mr. Boxer sister, will now pass over to her children because of her death and it will be divided among them in equal shares. This clause will make this transfer operational by law, “unless the contrary intention appears by the will”19 In order for any contrary intention to become actionable, it would have had to be subject to the provisions of alteration after execution, whereby the signature of the testator would have to appear in the margin or at some other spot near the alteration.20 Moreover, such alteration would also have to be rewritten into the will at some point. Even if it was Mr. Boxer’s mother’s intention not to bequeath any part of her estate to her grandchildren, she needed to have made this clear at the time of writing out the will and it was necessary for her to also specify what would be the course of action to be taken in the event of death of one of her children. Since her solicitor did not take the necessary action to incorporate the relevant provisions into the will and get it appended with Mr. Boxer’s mother’s signature, the will has to be executed as it is written, which in this case will be to pass along Mr. Boxer’s sister’s share of the estate to her five children, to be equally divided among them. No remedial action is possible by Mr. Boxer now, after the death of his mother. Since it is her last will and testament, it has to be executed as written. However he may consider informal changing of the will if he can prove that the deceased intended to alter her will and the Supreme Court is satisfied of such intention.21 If Mr. Boxer can provide other definitive conclusive proof of her intention not to hand over her property to her grandchildren, perhaps in a letter or video tape, or if he can provide evidence, perhaps through other witnesses to whom his mother had expressed her intention, to satisfy the Supreme Court of the legitimacy of the claim not to give the share of the estate to the grandchildren, then it is possible for Mr. Boxer to contest the gift bequeathed to the grandchildren. Queensland State of arms and the image of a koala: As a patriotic citizen, Mr. Boxer cannot be said to have done anything illegal by using the Queensland emblem and the koala in his e-mail, together with discounts at his dog store. Undoubtedly, Mr. Boxer would be in a better position had he obtained permission from the Queensland Copyright Office to use the emblem, however in view of the fact that mala fide motivation and intent to infringe copyright causing damages cannot be proved in this case, it is unlikely that Mr. Boxer will be in any serious danger. Even if he is questioned by the reporter on his use of the emblem, Mr. Boxer can relate it to the discounts he has offered in order to build his image as a loyal citizen of Queensland, who does not mind suffering a loss being the occasion of Queensland Day. Should Mr. Boxer file for Professional negligence of the solicitor? Legal precedent in Australia is not generally in favor of malpractice suits or professional negligence suits filed against lawyers. In particular, the recent decision of the High Court known as D’Orta Ekenaike22 may be cited wherein there was clear case of negligence of the lawyer, yet the Court did not allow the claim to stand. Issues that were raised by the High Court also concerned that of absence of duty of care and consequent immunity that needed to be provided to the lawyers to prevent retrial of a case already tried without overturning of the previous decision. Moreover, since mistakes by lawyers do happen, there is a reluctance to attribute this to negligence of duty since this in effect, will compromise the legal system itself and undermine the faith that people have in the legal system because some clients lose their cases. The attributing of negligence to a lawyer will entail the payment of compensation and large settlements if negligence is proved in the Court. Professor Atiyah argues that tort law providing compensation for negligence and personal injury is not conductive towards corrective justice because he concludes that: “The notion that tort law requires negligent individuals to pay for the consequences of their negligence is patently untrue. At every stage of the proceedings the practical operation of the legal and insurance system effectively shields the wrongdoer from any personal consequences following his actions.” 23 Moreover, the chances of winning a suit have become even more slim after the D’Orta case. While there is some precedent on negligence suits against lawyers filed in the United States, Australia however is a different matter and the judgment on D’Orta has only provided more immunity to the lawyers. Therefore, although there is undoubtedly a cause of action against the solicitor Mr. Barnaby, a negligence suit against him would not be recommended at this time. The problem of the inheritance to be made to Betty and Fred can be addressed on the same basis as that of the other anomalies in the mother’s will – by seeking to establish her intentions in a manner sufficient to satisfy the Court that her intentions were not carried out and thereby seek an informal modification or alteration of the will in order to incorporate the changes that are required. Such a motion filed in the Court is likely to be more successful than a legal malpractice suit, especially if Mr. Boxer can provide supporting evidence through oral testimonies of witnesses and/or any kind of written or recorded transcript of his mother’s intentions. Thus, a legal malpractice suit is not recommended at this time. Read More