Stokes, Michael --- "Editorial" [2002] JlLawInfoSci 1; (2002) 13(1) Journal of Law, Information and Science 5

• EDITORIAL

EDITORIAL

The first article in this issue, by Dr David Brennan, examines the vexed issue of patent protection for business methods. He argues from the history of Australian patent law, going back to the Statute of Monopolies, 1624, and from economic theory, that it is wrong to deny patent protection to business methods on vague grounds such as general inconvenience and lack of a physical or technical effect. Allowing such vague concepts into the law of patents introduces uncertainty into the system and to that extent undermines one of the economic rationales for having such a system. The purpose of patents is to reward invention by allocating resources from those who benefit from the invention to the inventor. Imposing vague limits such as that of general inconvenience on the extent to which that happens undermines its capacity to reward invention. After examining the failed attempts under the European Patent Convention to give content to the idea that patents should be limited to inventions which have a technical effect or in the words of TRIPs, article 27, operate in a field of technology, Brennan concludes that a better approach is to control business patents by means of the requirement of a minimum level of inventiveness. He argues that patents should not be granted for business methods which merely involve the use of known technology, the internet, for a purpose for which its known uses indicate its suitability.

Determining the authorship of particular software is important in a number of legal contexts such as civil litigation involving allegations of software theft or plagiarism or apportioning liability for software failure and criminal litigation concerning computer fraud or virus and other software attacks on computer systems. Stephen MacDonell, Donna Buckingham, Andrew Gray and Philip Sallis examine the potential of the forensic analysis of source code to provide evidence of authorship in such cases and consider the admissibility of such evidence. After a discussion of some of the techniques used in authorship analysis of software and of examples in which the analysis has been used to provide information about the authors of the WANK and OILZ worms, the authors refer briefly to their own development of a software environment, IDENTIFIED, which computerises methods of analysis and consider its application in a case of alleged software theft. Finally, they consider the application of five evidentiary rules to such evidence, the common knowledge rule, the expertise rule, the area of expertise rule, the ultimate issue rule and the basis rule, suggesting that all are relevant to the admissibility for such evidence.

The use of the internet and email at work raises difficult legal questions for employers and employees. Employers have an interest in monitoring their employee’s use of email and the internet because private use has the potential to lower worker productivity, to breach security, to disclose confidential information and to expose employers to liability. At the same time, the technology allows employers to monitor employees’ use of the internet and email and to intrude into their private lives to an extent never before possible. Karen Wheelright, in her article on monitoring employees’ email and use of the internet at work considers the legal issues to which employers’ interests in and capacity to monitor employee use of the internet and email give rise. She considers such issues as whether employees have a legal right to private use of an employer’s IT systems, the right of employers to determine how work place resources are used, and the extent to which the law protects employees from surveillance by their employer, concluding that in the absence of express provisions in the contract of employment or in work place agreements workers have very little protection. Finally she considers proposals by the NSW and Victorian Law Reform Commissions for legislation to give some privacy protection to employees.

Privacy issues are also at the fore in Associate Professor Richardson’s article about attempts by the music industry to prevent P2P copying of music from the internet on the grounds of breach of copyright. After considering the present state of play in the battle between the music industry and the copiers, Richardson examines potential dangers to privacy arising from the music industry’s strategy. That strategy has given rise to two potential threats to privacy. Firstly, the industry has sought discovery from ISPs of evidence pertaining to the use of the internet by their customers. Secondly, the music industry has sued selected large scale copiers, not to recover damages from them so much as to make a public example of them in order to discourage others. Richardson has few problems with the first potential invasion of privacy because she views the internet as essentially public rather than private, more like talking over the fence than reading a book. However, she is more concerned about the second, arguing that the public shaming of a few selected copiers in order to change public attitudes towards copying from the internet imposes unreasonable costs on the selected victims and may be an abuse or misuse of information given on discovery.

Catherine Lee’s note on the Napster, Grokster and Sreamcast Cases in the USA returns to the issue of downloading music from the internet in alleged breach of copyright. After considering the Napster Case, in which Napster was found liable for contributory and vicarious copyright infringement, the Note considers the later Grokster and Streamcast Cases. All the systems allow internet users to download files, including music from other computers. The Napster system was based on a central server owned and operated by Napster. As all searches and downloaded files went through the server, Napster was encouraging and assisting copyright infringement. However, as they merely provided software to users rather than a network based on a central server Grokster and Streamcast were not similarly liable. They had no control over the use of the software which they provided, so that copying could continue even if they shut down all their own computers. Their position was similar to that of manufacturers and sellers of tape recorders, who are not in a position to control how the technology is used. After considering the American position, Lee considers the potential liability of Grokster and Streamcast in Australia, concluding that The Copyright (Digital Agenda) Act does not provide a clear answer and may need amendment. She concludes that there is nothing in the Australian law which prevents the distribution of P2P software such as that of Grokster and Dreamcast.

The issue concludes with a number of reviews including one by Professor Eugene Clark of the Law School, University of Canberra which stresses the importance of knowledge management to law firms and other organisations.

Michael Stokes

Editor