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Contents Preface Introduction 1 1. The dead poets society: copyright term and the public domain 36 2. Remote control: time-shifting and space-shifting 93 3. The privateers of the information age: copyright law and peer-to-peer networks 144 4. The grey album: copyright law, digital sampling, and mash-ups 206 5. Grand turismo in the high court: copyright law and technological protection measures 248 6. Agent smith and the matrix: copyright law and intermediary liability 299 7. Google: search or destroy? 355 8. Remix culture: the creative commons and its discontents 414 Conclusion. A consumer's manifesto: the declaration of innovation independence 470 Bibliography 486 Preface 'The iPod has consumed my life like few things before it.' Dylan Jones, iPod, Therefore I Am: Thinking Inside the White Box A late adopter of new technology, I received an iPod Shuffle, a hot ticket item, as a Christmas present in December 2005. Travelling across the Pacific from Australia to Canada on New Year's Eve, I listened to one hundred and twenty songs drawn from my musical library. The personal soundtrack to my life included the psychedelic music of Pink Floyd and David Bowie; the agitprop pub rock of Midnight Oil, Hunters & Collectors, and the Cruel Sea; the Antipodean storytelling of singer- songwriters, David Bridie, Paul Kelly, and Neil Finn; and the keening of country divas, Kasey Chambers, the Dixie Chicks, and KD Lang. I was impressed that the MP3 player allowed me to engage in the 'space-shifting' of my musical collection, and the 'time-shifting' of Internet broadcasts. As an intellectual property academic, I was also intrigued by the implications of the iPod for copyright law. Apple Computers encouraged its customers to 'rip, mix, burn'; yet warned them, 'Don't Steal Music'. The one device could contain copyright works bought from the iTunes music store, copies of vinyl recordings and compact discs from home computers, as well as digital music circulated, without permission, on the Internet and peer to peer networks. It struck me that the 'white box' deserved greater critical scrutiny and examination. There was a need to better explain the complex relationship between copyright law, new digital technologies, and consumer behaviour. My interest in copyright law is a longstanding one. It has been fostered by a number of academic mentors and teachers. I owe much to Professor Peter Drahos for kindling my interest in intellectual property at the Australian National University. I am indebted to my old doctoral supervisor, Professor Kathy Bowrey of the University of Technology Sydney for her enthusiasm, guidance, and inspiration. I am grateful to Professor Jill McKeough of the University of Technology Sydney for providing sensible advice, calm support, and dry wit. I have also been indebted to Professor Brad Sherman from the University of Queensland for his camaraderie and patronage. This book has been written while I have been based at the Australian National University College of Law. I have been fortified by the support and the trust of the Dean, Professor Michael Coper, and the Head of School, Professor Stephen Bottomley, and his predecessor, the late great, Professor Phillipa Weeks. I have learnt much from my academic colleagues and students alike. This book has been immeasurably improved by the help and assistance of a number of enthusiastic and dedicated research assistants and Summer Research Scholars, including Katrina Gunn, Ishtiaque Omar, Elsa Gilchrist, Jessica Graham, Christine Henry, and Paul Clarke. This book has been enriched by my associations with a number of organisations. I am an associate director of the research centre, the Australian Centre for Intellectual Property in Agriculture (ACIPA), which is based at the Australian National University, the Griffith University, and the University of Queensland. I am grateful for the help and support of all the researchers and administrators who have worked under its banner. I have also had fruitful discussions with members of the 'Unlocking IP' group based at the University of New South Wales, and the Centre for Governance of Knowledge and Development at RegNet. I am a member of the Copyright and Intellectual Property Advisory Group of the Australian Library and Information Association (ALIA). This affiliation has heightened my appreciation of the wonderful work of librarians, archivists, and information managers. I am also a director of the Australian Digital Alliance (ADA), an advocacy group, which represents the copyright interests of libraries, educational institutions, and technology developers. This lobby group has sharpened my understanding of the abrasive politics of copyright law. This book was nurtured and cultivated during visits to cold, progressive countries. I am grateful for the productive dialogues that I had in Canada with Professor Michael Geist and Marcus Bornfreund of the University of Ottawa, Professor Margaret Ann Wilkinson of the University of Western Ontario, and Professor Myra Tawfik of the University of Windsor. I am also thankful for the exchanges that I had in Scandinavia with Eva Hemmungs Wirten of Uppsala University, Mathias Klang of Goteburg University, and Lee Davis of the Copenhagen Business School. I am also obliged for the support of a number of academics from other institutions / including Dr Kirsten Anker of McGill University, Dr Livio Dobrez of the Australian National University, Associate Professor Andrew Kenyon of the University of Melbourne, Dr Dianne Nicol of the University of Tasmania, and Professor Carolyn Sappideen of the University of Western Sydney. As always, I rely upon the kindness of friends, especially Kevin Boreham and Edwin Cho, Helen and James Chisholm, Janine Lapworth, Dr Simone Murray, Dr Kristin Natalier and Al King, Dr Mark Nolan, Tanya Richards-Pugh and Ivan Sun. I am thankful for the magnanimous commitment to education shown by my parents, Professor Peter Rimmer and Dr Susan Rimmer. I am also fortunate to have the insights of my artistic siblings, Joe Rimmer and Rachel Rimmer. I hope that my two children, Marina Rimmer and Joshua Rimmer, will understand the importance of reading public domain, 'Winnie the Pooh', instead of Disney's copyrighted versions. Finally, I wish to thank my wife (and sometime iPod widow), Susan Harris Rimmer, for her generous love, commitment, empathy, and eternal patience.
Library of Congress Subject Headings for this publication:
Copyright and electronic data processing -- United States.
Copyright and electronic data processing.