Archive for July, 2011
Wednesday, July 27th, 2011
Daniel Goncalves a Union County man has been sentenced to a term of 5 years imprisonment for the theft and sale of the domain name P2P.com, in what is believed to be the first domain name theft case of its kind.
It was alleged that in 2006 Goncalves gained unauthorised access to an AOL email account operated by the registrant of P2P.com, in order to authorise a transfer of the domain name. Once the name was transferred Goncalves apparently sold the domain name on Ebay for $111,000. He was later arrested on 30 July 2009 and was indited for a range of offences including computer theft. He plead guilty to those charges in 2010 and was this week sentenced.
The domain name has been returned to its rightful owners and the Court ordered that Goncalves pay an amount in restitution to the victims.
Sunday, July 24th, 2011
All states and territories of Australia (except for NSW) have agreed to introduce a new adult R18+ category of classification for computer games.
It is anticipated that current M15+ classified games, which are inappropriate for children will be reclassified to a new R18+ rating. Justice Minister Brendan O’Connor today said that the new classification was required to protect children from adult content, and that the existing refused classification system would be maintained to ensure that the most inappropriate content was not classified.
There has been significant debate on the introduction of a new adult category for computer games, with strong lobbying from the computer games industry. The debate has been ongoing for approximately 9 years.
It is expected that NSW will review and consider the agreement reached including amendments included in the draft proposal.
Monday, July 11th, 2011
In September 2011, the adult industry will get its own internet ‘red light district’ when the new .xxx top-level domains become available for registration.
ICM Registry, which has been approved by ICANN to administer the .xxx TLDs, has announced a pre-registration ‘sunrise’ period, starting on 7 September 2011 and running for 30 days.
In Sunrise A, members of the adult entertainment industry will be able to pre-reserve their desired .xxx domain names.
In Sunrise B, which will run concurrently with Sunrise A, trade mark owners in non-adult industries will be able to pre-emptively block the registration of a .xxx domain name that matches their trade mark. It’s a defensive measure that ensures that a brand is not associated with explicit or adult-oriented content by removing the associated .xxx domain name from the pool of domain names able to registered.
The important points:
Sunrise B opens soon and will run for a very limited time. Contact us to take advantage of this one-time opportunity to pre-emptively keep your valuable brands out of the .xxx neighbourhood.
Tags: domain law, domain lawyer, domain lawyers, domain name law, ICANN, technology law, trademark, trademark registration
Monday, July 11th, 2011
Optus has been hit with a $5.26m penalty in the Federal Court, for falsely advertising broadband download quotas. The decision heralds a new level of risk in communications advertising in Australia.
The clear rule is that high-powered headlines plus small print equals advertising danger.
This bulletin explains:
What Optus advertised
(a) In April 2010, Optus campaigned for a new range of ‘Think Bigger’ broadband plans.
(b) Each plan included a large data allowance (120/150/170GB) divided into ‘peak’ and ‘off-peak’ entitlements eg the 120GB plan was advertised with 50GB peak usage and 70GB off-peak usage allowance.
(c) The disclaimers stated: ‘Speed limited once peak data exceeded’.
How the advertised plans really worked
(a) When peak allowance was used, entire service was shaped to 64kbps for rest of month.
(b) Shaping applied to remaining off-peak allowance as well.
(c) So, for instance, if customer used whole 50GB peak allowance first, then entire 70GB off-peak allowance shaped to 64kbps.
(d) But if off-peak was exhausted first, further off-peak MBs were deducted from peak allowance, and shaping applied when that was exhausted.
How Optus defended the plans
Optus said that ‘Speed limited once peak data exceeded’ was a sufficient explanation: Once your peak allowance is reached, speed is limited.
Why ACCC took action
ACCC disagreed that the disclaimer was a clear and proper explanation. It argued:
(a) Public would assume that peak and off-peak entitlements were independent.
(b) Public would not understand that exhausting peak use would result in off-peak speed shaping to non-broadband speed.
What the court said and did in 2010
(a) The court agreed with ACCC.
(b) Court said that ordinary people simply wouldn’t understand the full rules of the plans, based on the advertising.
(c) Court particularly attacked ‘headline advertising’ where a powerful headline told one story and small print told a different story.
(d) Said there was:
(e) 29 October 2010: Court ruled that advertising was deceptive.
(f) 2 November 2010: Court banned Optus from repeating that kind of advertising for 3 years.
(g) 19 November 2010: Court ordered Optus to write to all affected customers offering remedies.
(h) 8 December 2010: Court held a penalty hearing.
What the court did on 7 July 2011
Announcing the result of the penalty hearing, the court ruled that Optus must pay the Commonwealth a pecuniary penalty of $5.26m.
Why a $5.26m penalty is now possible
(a) Before 2010, no financial penalty was possible under the law in a case like this.
(b) In 2010, the Competition and Consumer Act (‘CCA’) was amended to allow the court to impose penalties on a company of up to $1.1m per breach of certain sections of the CCA. That includes breaches of the law against misleading about ‘the quantity of services’.
Other provisions that can attract penalties
The new penalties are available for a wide range of breaches that communications providers should keep in mind. Here’s a non-exhaustive list:
(a) misrepresentations that goods are of a particular standard, quality, value, grade, composition, style or model
(b) misrepresentations that services are of a particular standard, quality, value or grade
(c) misrepresentations that a particular person has agreed to acquire goods or services
(d) misrepresentations that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits
(e) misrepresentation that the person making the representation has a sponsorship, approval or affiliation
(f) misrepresentation with respect to the price of goods or services
(g) misrepresentation concerning the availability of facilities for the repair of goods or of spare parts for goods
(h) misrepresentation concerning the need for any goods or services.
Obviously, communications advertising has just become more challenging. It’s a strong argument for having every advertisement checked by an expert in the area.
 That doesn’t make it legal in three years. It means that, should Optus break the ban, it will incur even higher penalties.
 As it is now called … it was then the Trade Practices Act.
Tags: Federal Court of Australia, ISP, isp law, ISP Lawyers, MIsleading and Deceptive Conduct, Optus, telecommunications law, Telecommunications Lawyers, Trade Practices Law