The Australian moment – How we were made for these times

By George Megalogenis

One suspects this book was conceived and written in the aftermath of the GFC in 2009/10 when Australia really did look to have dodged a bullet and before the slow down of 2011 which, at least in the South East of the country, felt as bad as anything since the early 90s (if not the mid 70s).

The book’s central thesis however remains valid, even if subjectively it is hard to relate to. Megalogenis argues persuasively that Australia, of all the developed economies in the world, is best placed to weather the current difficult economic times. To make his point he gives a lucid account of Australian economic and political history since the mid sixties. For readers of a certain age and disposition this is a very engaging march down memory lane to a time when politicians had not had media training and when the issues of the day were the kind and extent of economic and social reform. The personal peccadilloes of our elected representatives, while noted in passing, were scarcely the point.

Megalogenis’s argument is essentially that each of our governments since the early 70s can take some credit for producing the uniquely robust set of policies which puts us in the solid position we now, apparently, enjoy. Whitlam lowered tariffs. Fraser decisively changed the immigration mix. Hawke and Keating floated the dollar, deregulated the banking system, managed the trade unions and produced fiscal surpluses when it was appropriate. Howard gave us the GST and didn’t stuff up what Hawke and Keating had achieved. Rudd handled the GFC according to the textbook before imploding. And now, even if there is a double dip recession, Australia is well placed to deal with it. Not that you would know that watching the news (and George has something to say about what is wrong about the intersection between our media and politics, not all that different to what Lindsay Tanner said in Sideshow).

Megalogenis is one of the more interesting journalists writing about Australian economics and politics today. He has some interesting gripes (down on baby boomers for example) but while clearly dry economically does not follow the News Limited script. Highly recommended.

SPQR - A History of Ancient Rome

By Mary Beard

Ever since the mid 18th century when  Edward Gibbon wrote The Decline and Fall of the Roman Empire the Roman world has been the subject of  intensive scholarly and popular writing. Mary Beard's SPQR is the latest in a long line of general histories of the late Republic and early Principate. To mention only a few, Tom Holland's Rubicon and  Dynasty and Robin Lane Fox's The Classical World cover similar territory as does Adrian Goldsworthy and Christian Meier's respective books both called Caesar and Alan Everitt's the First Emperor.

A number of questions arise. Why so many books on this period; what is the fascination? And is Mary Beard's contribution worth a visit?

To answer the last question first: absolutely. Beard is a classicist with a strong knowledge of cutting edge archaeology as well as an exhaustive knowledge of the surviving classical written sources.  Unlike say Holland who in his recent Dynasty tended to take the ancient sources at face value, Beard is an astute reader of ancient agendas and skilfully interrogates her sources to test the received wisdom while avoiding revisionism for its own sake.  She is able to cut through Cicero's self serving depiction of Catiline and Augustus's of Anthony; both of whom suffered the fate that befalls losers in the historical record.

Beyond that Beard is a knowledgeable guide to Roman literature and society. Critically, she understands that the Ancient World is a very strange place not withstanding the frequent moments when it seems strikingly recognisable. As she puts it, it is like "walking on a tightrope, a very careful balancing act."

Which brings us to the fascination. Partly it is that Roman politics is comprehensible albeit brutal. The motivations of  Caesar, Brutus and   Octavian are quite explicable. The contest between libertas and dictatorship and between the "people' and the optimates has been played out innumerable times and, given that this history has been studied by European elites since the Renaissance, there is a real sense in which the fall of the Roman Republic operates as a template for all of the innumerable subsequent transitions from some kind of popular rule to authoritarianism. And then the Romans invented constitutional monarchy, although they never quite perfected the succession problem.

But the fascination also derives from the alien nature of the Roman world. A lot of it is shocking: exposure of unwanted children; the routine sexual exploitation of slaves (and the radically different conception of sexual orientation); the gladiatorial games; the endemic disease and violence.

Either way, we find it hard to look away. One does not have to posit that the study of the Roman World provides lessons directly applicable to our current dilemmas to recognize that even so there is something to be learnt about our human potential and experience.

The Big-daddy of population limitationists in Australia reconsidered.

In the light of recent bleatings about Australia's rate of population growth I thought I'd post this (somewhat critical) review I wrote of the biography of the big daddy of "small Australia". Originally published in the Canberra Times.

Griffith Taylor – visionary environmentalist explorer

By Carolyn Strange and Alison Bashford

National Library of Australia. 283 pp.

By any measure  Griffith Taylor had a fascinating life: he studied geology at Cambridge; went on Scott’s last Antarctic expedition; founded Sydney University’s school of geography and became a controversial public intellectual; later he taught in Chicago and Toronto. A building is named after him at Sydney University. And yet he is largely forgotten. His books are out of print and the Griffith Taylor Building is a mediocre example of the International style.

But life is long and Griffith Taylor is enjoying something of a renaissance. Timothy Flannery in The Future Eaters describes him as ‘one of the greatest and most courageous scientists Australia has ever produced’ praising him for his opposition to the “Australia Unlimited’ boosters of the 1920s and to the White Australia policy.

In Griffith Taylor Strange and Bashford revisit their protagonist’s well documented life and retrofit him as a visionary and environmentalist by emphasizing his early careers as a geologist and meteorologist. Considerable space is devoted to his participation in Scott’s last expedition where he served creditably. The book’s thematic organization means however that his early career – up until the mid 1920s – is rehearsed in a number of different contexts and this tends to obscure the fact that Taylor, while enjoying a successful academic career in the United States and Canada from the late 1920s had by that time ceased to be a significant public figure.

But even as an academic geographer Taylor’s achievement was questionable. The version of human geography espoused by Griffin Taylor and known as  ‘geographic determinism’ is neither hard science nor humanity. While it is indubitable that humans live in and are affected by their physical environments it is far from clear why primacy should be given to the physical environment (any more than, say, economics, culture or history) as an explanatory factor in human affairs. If this is in doubt then the rationale for geographic determinism becomes somewhat murky.

The problem goes deeper than mere methodology. Following Scott’s expedition, Taylor returned to Australia, a made man, and worked in the Bureau of Meteorology where he became fascinated by the relationship between climate and race. This is deeply unfashionable territory these days and rightly so. But by the 1920s western culture was saturated with concepts of race and social Darwinism and Taylor found a receptive market for his ideas on human evolution and geography. He became known as an advocate of geographical determinism – the idea that the physical environment has a decisive role to play in the formation of human culture and evolution. Taylor exhibited a talent for self promotion which, combined with his large literary output and facility for presenting ideas diagrammatically, secured him plenty of space in the newspapers and a significant public profile during the 1920s.

Taylor was always something of a maverick. He went to the Kings School but didn’t like rugby and later in life his ideas were not all popular. Above all Taylor considered himself a scientist and if scientists thought that a particular skull shape was the most highly developed form of human then so be it. In 1927 he published Environment and Race the basic thesis of which was that the more advanced races had taken control of the most desirable portions of the earth, pushing their less advanced cousins to the periphery. The most advanced race however was not the ‘European’ but the ‘Mongolian’. This conclusion, by the way, led to considerable interest in his work in imperial Japan.

Taylor was relaxed about intermarriage between Europeans and Asians and maintained that the concept of pure race was absurd. He also wrote however that the ‘negro peoples…stand on a lower plane than white or Mongolian. Racial mixture with them may be a deterioration for the other races’. But not to worry: one of his predictions, which receives less publicity than his pessimism about Australia’s carrying capacity, is that negroes will ‘ultimately disappear’ – bred out by half castes; just as was happening to the Australian Aborigine. ( refer p340 of Environment and Race, Oxford U.P. 1927).

So Taylor’s ideas on race were quirky but hardly cuddly. What really got him into trouble in the 1920s (and what Dr Flannery applauds now) was the suggestion that the Australian continent had a limited capacity for population growth. He predicted a maximum capacity of about twenty million people. Many considered this unpatriotic at a time when Australia was thought by many to have the potential to be another America.

Taylor’s work in fact has little bearing on whether the population limitation environmentalists such as Dr Flannery are right or wrong. Taylor predicted a maximum number which is close to the present population but his assumptions were idiosyncratic. He thought for example that Europeans would not live in the tropics. He thought much of Western Australia to be useless; not forseeing that we could one day dig it up and sell it to China (and use the proceeds to pay for desalinated water).

But what Taylor’s career does show is that the certitudes of intellectual fashion change over time. Taylor was a talented man who invested his considerable ability and energy in areas of study  which today are considered frankly embarrassing. Geography goes on because there is something informative in seeing humans in the context of their environment but the lessons we draw from that study have changed radically. In Griffith Taylor Strange and Bashford have given us a detailed and handsomely illustrated account of a man who is almost forgotten and probably rightly so; but fascinating all the same.

.

Dictator

By Robert Harris

Dictator is Robert Harris's third novel on Cicero completing the story begun and continued in Imperium and Lustrum of the last fifty years or so of the Roman Republic. Dictator focuses on the ascendancy of Julius Caesar and the civil war that followed his assassination.

Cicero is a promising vehicle for such a story because he knew all the major players and his life is extremely well documented. Much of his private correspondence was published during or after his lifetime as were many of his speeches both legal and political. He also wrote extensively on philosophical and political subjects.

Harris's Cicero is seen from the perspective of his slave and later freedman Tiro, also a historical figure who did indeed write a lost biography of his master and patron.

Cicero is a curious figure, a "new man" who advocated the interests of the old Roman  aristocracy, a great writer and orator who wanted to be a politician but lacked a real power base.

Harris's Cicero is basically a decent chap, especially compared to the likes of Clodius and Mark Antony but his preference for  the optimates while historically accurate is not really explicated in a satisfying way. What Harris does capture well is Cicero's propensity to change sides and his talent for rationalisation. In the end of course this proved a fatal ability.

Harris has delivered a book about an atypical ancient protagonist which is faithful to the ancient sources: Cicero is not a warrior nor an absolute ruler nor, thank heavens, an ancient detective. He is a politician, lawyer, family man and philosopher. This book does justice to Cicero's complexity.

Downloading Personal Liability - published in Lexis Nexis Internet Law Bulletin April 2015

Downloading Personal liability

Directors and Managers liability for copyright infringement over the internet.

Grant Hansen, Partner, Holman Webb.

A person who has under his control the means by which an infringement of copyright may be committed – such as a photocopying machine – and who makes it available to other persons, knowing, or having reason to suspect, that it is likely to be used for the purpose of committing an infringement, and omitting to take reasonable steps to limit its use to legitimate purposes, would authorise any infringement that resulted from its use. University of NSW v Moorehouse 133 CLR 1 per Gibbs J (at 13)

Moorehouse was decided in 1975 at a time when photocopiers were still a novelty (to the best of my recollection they did one sheet at a time and made gurgling noises)  and reproduction of copyright material was laborious and slow.

In the 21^st century the digital economy is predicated on the transmission - the reproduction – of information  and every business in the country has “under its control the means by which an infringement of copyright may be committed”.

So if employees or contractors of a company use the company’s computers and internet connection to download or transmit unauthorised copies of copyright material – be that software, music or film – the individuals in charge are potentially personally liable.

As such directors and managers of companies need to understand that as individuals they may be personally liable for secondary infringement by authorisation. This is particularly so given that a person may authorise an infringement by merely “countenancing” the infringement..

Authorisation of Copyright Infringement defined

So what does authorisation mean? Courts have repeatedly found that authorise means to “sanction, approve or countenance”. See for example the High Court’s decision in  University of NSW v Moorehouse 133 CLR 1 at 12.

Section 36 9(1A) of the Act identifies the following factors which must be taken into account when determining whether a person has authorised an infringing act:

a)    The extent of the person’s power to prevent the doing of the infringing act;

b)    The relationship between  and the person who did the act;

c)    Whether the person took reasonable steps to prevent the doing of the act.

iiNet and direct control

In Roadshow Films Pty Ltd v iiNet Ltd (2012) 95 IPR 29 however,  the High Court adopted a somewhat more permissive approach to authorisation than had been expected. That case concerned the liability of an ISP for infringements by its customers. The High Court found that even if iiNet had encouraged or turned a blind eye to infringing conduct they still could not authorise it, absent a direct means of preventing the actual infringement. Disconnecting the erring customer was not such a direct means. As Gummow and Hayne JJ (at paragraph146) put it:

… iiNet only in an attenuated sense had power to "control" the primary infringements utilising BitTorrent. It was not unreasonable for iiNet to take the view that it need not act upon the incomplete allegations of primary infringements in the AFACT Notices without further investigation which it should not be required  itself to undertake, at its peril of committing secondary infringement.

But the iiNet decision turned very much on its own facts . The customers of an ISP stand in a completely different position to employees or contractors who work under direction. A director or manager may well have the requisite direct control which iiNet was found to lack.

How much control and knowledge is required for liability to arise?

Earlier decisions such as Universal Music Pty Ltd and ors v. Sharman Licence Holdings Pty Ltd and ors (2005)65 IPR289  (known as “Kazaa”) and Cooper v Universal Music Pty Ltd (2006) 71 IPR 1 are still authority for the proposition that a person with power to prevent infringement, who is aware of the possibility of infringement, will be taken to have authorised infringement, if they to do what they can to avoid the infringement.

Indeed, such a person may “countenance” the infringement without having any specific knowledge of it.

In APRA v Metro on George Pty Ltd  61(1974) IPR 575 the owner of a live music venue was found to have authorised infringement notwithstanding having no direct knowledge beforehand of the music being performed and despite its contract with the promoter containing warranties of no infringement. Significantly, the owner was on notice that infringement had occurred at its venue and its standard contract with performers permitted it to terminate engagements where licencing could not be shown. The owner however, made no attempt to investigate whether the performances planned were of licenced material.

In Cooper the defendant argued that he did not have the power to prevent infringement and relied on the observation of Lord Templeman in CBS Songs Ltd v. Amstrad Consumer Electronics [1988] AC 1013 (at paragraph 31):

 A person does not authorise an infringement merely because he or she knows that another person might infringe the copyright  and takes no step to prevent the infringement

The full court per Branson J considered what ‘power to prevent meant (at paragraph 32) and observed:

The following hypothetical situation may be considered. One person has a vial which contains active and highly infectious micro-organisms which are ordinarily passed from human to human by the coughing of an infected person. He or she authorizes another person to break the vial in a crowded room knowing that this will result in some people in the room becoming  infected with the micro-organisms. Most people would, I think, regard the first person as having authorized the infection not only of those in the room, but also the wider group thereafter directly infected by them, notwithstanding that he or she had no power to  prevent those who were in the room from coughing.

In other words, even though the ‘authoriser’ could not control the persons who were subsequently infected she will be taken to have authorised that infection because she could control the person who broke the vial.

Similarly, in APRA v Jain [1990]FCA 404 the Full federal court found (at paragraph 30):

The judgment of the members of the High Court in the Moorhouse case establishes that one of the meanings of the  word "authorize" in the context in which it is here used is "countenance". It may be that not every act which amounts to the countenancing of something is an authorisation. Every case will depend upon its own facts. Matters of degree are involved. But the evidence in the present case reveals ... a studied and deliberate course of action in which Mr Jain decided to ignore the appellant’s rights and to allow a situation to develop and to continue in which he must have known that it was likely that the appellant’s music would be played without any licence from it.’

It mattered not that mr jain had no specific knowledge of the music in fact infringed.

In iiNet the High Court observed:

An alleged authoriser  must have a power to prevent the primary infringements. Australasian Performing Right Association Ltd v Jain, Tape Manufacturers, Kazaa and Cooper all confirm that there must be such a power to prevent. So much had been recognised earlier,in any event, in Adelaide Corporation and Moorhouse.  70.

Implications for Directors and Managers

So what does this mean for a director of a company where, for example, unlicensed software is downloaded from the internet by an employee or contractor and used for a purpose incidental to the business?

Consider the following examples in small to medium sized proprietary companies:  an employed architect downloads a cracked version of a high end CAD programme because it is better than the one supplied by his firm; an IT manager for a design firm acting under  budget constraint downloads a cracked version of a suite of design software without consulting the CEO.

In both instances the firm has a written policy prohibiting such conduct but took no active steps to monitor compliance. And for the sake of this argument we will assume that the board of directors was not informed of the specific conduct but had a general awareness of the risk (as evidenced by their written policy).

In both cases the members of the board and the relevant line managers are exposed. Jain and Metro on George are authority for the proposition that once you are aware or ought to be aware of the potential problem active steps are necessary to avoid authorisation.

Kaaza and Metro are also authority for the proposition that token steps to avoid infringement, whether mere statements of intent on a website (in Kazaa) or terms in a contract (Metro) are not enough.

In the above examples, reasonable steps to prevent infringement would mean demonstrating an active software asset management process which regularly identified and removed unlicensed software.

In reality of course, management is rarely completely oblivious as to what is transpiring under its supervision. If actual knowledge can be established then liability inevitably follows, regardless of whether the infringement was procured or directed by management.

Sole Directors and Multi Director Boards

By definition a sole director of a proprietary company has power to control access to his or her company’s computers. There is literally no one else and any delegation of power cannot detract from the directors statute endowed authority. See Microsoft Corporation v. Auschina Polaris (1996) 36 IPR 225 at 237.

Absent reasonable steps to prevent the infringement the position of such a director is highly exposed. It is difficult to imagine any one being able to argue successfully that they had , to adopt the language of Gibbs J in Moorehouse, “no reason to suspect” that untrammelled access to computers could result in infringement.

The position is more complex in larger boards and for non-executive directors and will turn on whether in fact individual directors had any power to avoid infringement. In such organisations managers may be more exposed because they have in fact been delegated the requisite authority.

In TS&B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd(2007) 72 IPR 44 one of three individual defendants was found not to have authorised even though he knew about the infringement because he had no direct connection to it. He was not a director and did not give any instructions or have any apparent ability or power to avoid the infringement.

On the other hand, In Microsoft Corporation v PC Club 2005 FCA 1522 Conti J found that directors not directly involved in infringement had authorized infringement:

208 In the circumstances that Mr Fang had the purported authority of the office of chief executive director, coupled with his evident or likely awareness of Mr Lee’s activities…, it was contended by the applicants that Mr Fang should be inferred to have sanctioned, approved and countenanced the infringements of copyright of PC Club and Mr Lee’s conduct undertaken on behalf of the Club in that regard, and hence to have authorised the same within the meaning of that term contained in s 36 of the Copyright Act… I have difficulty in accepting how it could be that Mr Fang can avoid any measure of extent of personal responsibility for the consequences tending to arise from his acceptance of and continuation in office as a director of PC Club at all material times, irrespective of what may be readily inferred as to Mr Lee’s dominant personality in relation to PC Club’s affairs, and as to his dominance in PC Club’s decision-making...

209 Similar adverse implications to those indicated above in relation to Mr Fang should I think be implied as flowing adversely to Mrs Lee by reason of the nature and extent of her office as a director of PC Club and of her apparently full time duties undertaken. She held the office of director of PC Club at the material times, and the evidence tends to demonstrate that she was as equally actively involved in the day to day operations of PC Club at Rhodes as Mr Fang.

Significantly even one director in a multi director board was found to have requisite power to avoid infringement such that failure to exercise that power could amount to authorisation.

Conclusions

So the question of authorisation will turn on the analysis of the particular facts. See iiNet per Gummow and Hayne JJ Roadshow Films Pty Ltd v iiNet Ltd (2012) 95 IPR 29

Some awareness of the possibility of infringement is necessary. But once that is established the question will be whether as a director the person concerned could have taken steps to prevent the infringement.

In most proprietary companies that will certainly be the case. In such companies directors routinely exercise their authority without the benefit of a board decision.

Token steps to prevent infringement will not suffice. In Universal Music Pty Ltd and ors v. Sharman Licence Holdings Pty Ltd and ors, the Respondents sought to rely on d on terms in the Respondent’s end user licence  such as:

 “Sharman respects copyright and other laws. Sharman requires all Kazaa users to comply with copyright and other laws. Sharman does not… authorise you tom infringe the copyright..of third parties..”

Wilcox J observed [at 340]: “While I agree with the applicants that the existing warnings do not adequately convey to users what constitutes breach of copyright, I am not persuaded it would make much difference if they did.”

His Honour went on to find certain respondents in a position to control the use of the Kazaa peer to peer file sharing system were liable for authorisation of infringement.

Written policies on internet and social media use are all very well; but if they are not enforced they do no more than show that management had the requisite knowledge of the risk of infringement that exposes them to liability for authorisation.

A number of conclusions arise:

1.    Once a director or manager is aware of infringement they must take active steps to prevent it or risk personal liability. Such steps include regular audits of all computers used in a business with appropriate follow up if unauthorised material is discovered.

2.    Even if not aware of the actual infringement a director can be liable if aware of the possibility of infringement by means under their control. Sole directors are most exposed. Unless a sole director has taken real and effective steps to prevent employees or contractors engaging in copyright infringement eg active software reviews or insisting on evidence of licencing, they will be exposed.

3.    Even directors of multi director boards can only minimise liability by insisting that policies be put in place that will counteract the risk of software infringement.

grant.hansen@holmanwebb.com.au  

The Great War - published in October 2014 GR Magazine

The Great War

In his Age of Extremes Eric Hobsbawm wrote: "The destruction of the past or rather of the social mechanisms that linked one's contemporary experience to that of earlier generations is one of the most characteristic and eerie phenomena of the late twentieth century."

Now the Age of Extremes is an uncannily prescient book; written at a time (1994) when American neo-conservatives were crowing about the "end of history". Hobsbawm, old Marxist that he was, correctly saw that with the collapse of the Eastern bloc a world brought into existence as a result of the Great War was coming to an end. The new world would be fundamentally different: not Eurocentric; globalised economically; and characterised by "the disintegration of the old patterns of human and  social relationships...".

Now that we are in the second decade of the 21st century some things are becoming clearer. And Hobsbawm's characterisation of the period from 1914 to 1991 as the "short twentieth century" - a unified era brought into existence as a direct result of the forces unleashed by the Great War now seems blindingly obvious. No Great War: no October Revolution in Russia; no Stalin; no Nazi Germany; no World War Two; no Holocaust; no Cold War.

The centenary of the war has produced a flood of new books. Many of these focus on the causes of the

 war and reengage with the debate as to whether the war was inevitable or a colossal snafu and the 

related debate as to whether Germany was really to blame. The consensus that developed following the publication in 1961 of Fritz Fischer's Germany's War Aims in the First World War - that Germany 

precipitated the war in order to pre-empt Russia's growing economic and military power has come 

under attack in recent years and does suffer from the fact that no coherent war aims can be found to 

have existed prior to September 1914.

In 1914  - The Year the World Ended  Paul Ham argues that "the Great War, in short was an avoidable

exercise in collective stupidity...launched by profoundly flawed ...men..."  Ham is a reliable guide in 

most cases but this judgement seems a little glib. In The War that Ended Peace  Margaret Macmillan 

offers a more nuanced analysis based on a detailed survey of the economic and political developments

in each of the main protagonists in the generation leading up to the war. She emphasises how the 

motivations and historical experiences of each of the major players interacted to narrow options and 

make war more likely. Max Hasting's Catastrophe provides a  relatively concise overview of what he 

describes as "the most complex series of happenings in history" before moving on to a detailed account

of operations in the balance of 1914. His view is that Germany and Austria bore primary responsibility 

and that the war had to be fought to prevent the Kaiserreich dominating continental Europe.

The debate about the causes of World War One is essentially impossible to resolve because each step in the descent into the abyss was a necessary but not sufficient cause. Current events in Europe do however 

make one hope that the lead up to the war receives the attention it deserves.

Once the war began its history is necessarily military history and this can be something of an acquired 

taste. Partly that is because the subject matter - killing and destruction on an industrialised scale - is

inherently repulsive. But on the other hand without military history it would be impossible to 

understand how the carnage went on for four years. Nor would the societal dislocation that it caused be

explicable.

Les Carlyon’s Gallipoli  is a well written conventional narrative history which places the campaign in 

its strategic context and provides considerable information about Turkish as well as Allied motivation 

and objectives. Patsie Adam-Smith’s Anzacs is a history of the first AIF with insights into matters such 

as the comparative rates of venereal disease in the allied armies. The Australians led the way in this 

area as well as on the battlefield. Somme Mud by EFP Lynch is the memoirs of an Australian infantry 

man, written in 1921 but only recently rediscovered and published for the first time. This appears to be 

the genuine article – the forward is by the respected military historian Bill Gammage – and is that rare 

thing: a detailed first hand account by an intelligent and thoughtful observer who somehow forced 

himself to confront and record the appalling reality he experienced.

The starting point for reading on the first AIF and in many ways the originator of the Anzac ‘legend’ is 

CEW Bean’s Official History of the Australia in the war of 1914-1918. At twelve volumes and in 

amazing detail – often actions are recounted at the platoon level with individuals being named -  this is 

not for the faint hearted. Bean was not jingoistic and was careful to discount exaggerated claims as to 

Australian martial prowess but he is also assiduous in finding admiring commentary from both allied and enemy observers. The overall effect is somewhat adulatory. Bean also wrote an abridged version of his history 

Anzac to Amiens which is rather more approachable.

A somewhat less uplifting impression is conveyed by The Broken Years a selection of Australian soldier’s letters home, edited by Bill Gammage, many of which depict the brutalising effect of incessant slaughter on the correspondents. Particularly by 1918 the Australians hated the enemy and exalted in their destruction. It was this hatred which seems to have driven the Australians to perform so well in the critical battles of 1918.

Many of those battles were directed by an Australian – John Monash. Roland Perry’s Monash: the Outsider who Won a War makes a pretty big claim for its subject in its title. In March and April 1918 Australian troops under the command of Monash, stopped the last great German offensive of that war from taking Amiens and splitting the British and French armies. It was the last throw of the dice for the Germans and it nearly came off.  On 8 August of that year 100,000 Australian troops, again commanded by Monash, and supported by Canadians, smashed the German defences south of the Somme  and advanced 8 kilometers in two days. At least 6 German divisions were effectively destroyed. Ludendorff, the German supreme commander called it his worst experience of the war and thereafter became convinced the war was unwinnable.

Monash is a fascinating figure on several levels. As a Jew of German birth he encountered real but 

subtle prejudice, particularly as he was promoted into the highest ranks of the army. His outstanding 

ability as an organiser, his considerable personal charm and his ability to attract mentors, including 

George V meant that none of this detained him for long. But whether he won the war as Perry suggests 

is definitely open to debate. Like a lot of successful military commanders Monash understood the value of public relations and one must be careful not to swallow his PR whole.

John Laffin’s The Battle of Hamel focuses on the first major set piece conducted by Monash which 

prefigured his later successes and set the pattern for the defeat of the German’s on the Western front.

British writers tend to be less effusive about Monash. Indeed since the 1980s there has been the development of a revisionist school which seeks to rehabilitate the reputation of the likes of Douglas Haig. Walter Reid's Architect of Victory Douglas Haig makes the case for the rationality of Haig's leadership and the centrality of his contribution to devising the improved operational methods which eventually permitted the Allies to break the stalemate in 1918.

Readers of Patrick Lindsay’s Fromelles will struggle with this view. Frommelles was the first battle in which Australians were involved on the Western Front and was the a textbook example of the horrors of trench warfare. Over 5,000 of the 7,000 attackers were casualties including over 2000 dead.

Les Carlyon's The Great War is a sound over view of 1916 to 1918; written from an Australian perspective it places it in the broader context of the war's strategic and tactical evolution.

Because evolve it did. Contrary to the classic image of repeated suicidal frontal attacks as shown in films such as Paths to Glory and All Quiet on the Western Front, the commanders of both sides had grasped by the end of 1914 that there was no point in committing infantry to wave attacks against entrenched opponents. Over the next three years the respective protagonists sought to develop techniques that would permit infantry to capture and hold opposing trench systems. Many of the techniques that produced the Allied breakthrough of August and September 1918 - the creeping barrage, smoke, counter battery fire, and tanks were already in use by 1916. The problem was that it took nearly two years of trial and error and the consequent appalling casualties to perfect the combination.

In Beaten Down by Blood  Michelle Bomford gives us a tightly focused account of the First AIF’s last great battle in September 1918 at Mont St Quentin Peronne. Bomford draws on eye witness accounts and battalion war diaries and citations as well as the microscopic history of CW Bean to give a detailed account of the battle.

There is a brief but perceptive treatment of the military ‘strikes’ (usually called mutinies) that followed the battle in late September and a balanced treatment of whether the battle was militarily justified or as CW Bean alleged a product of Monash’s thirst for military prestige. Bomford comes down on the side of Monash and concludes the battle contributed to hastening the German withdrawal to the Hindenburg line and materially shortened the war.

 

The Great War also generated a lot of literature albeit of varying quality. The Penguin Book of First World War Poetry is a good illustration of this. The work of Wilfred Owen, Siegfried Sassoon and Robert Graves has stood the test of time but a lot of their compatriots produced jingoistic doggerel. The war poets may not however be a reliable guide to how the bulk of the population viewed the war. Atypical perhaps, but Robert Graves' memoir Farewell to All That is a wonderful insight into the world of a public school educated British officer. For a much less ambitious but still valuable account of a "typical" Australian see An Anzac's Story by Ron Kyle.

In the late 1920s novels drawing on war experience began to be published. Ernst Junger's Storm of Steel gives a nihilistic German perspective.  Klaus Maria Remarque's All Quiet on the Western Front is a far more perceptive book and of course a classic of the genre. Flesh in Armour by Leonard Mann has some interest for its candid descriptions of Australians in frontline combat but suffers from being neither true history nor well written fiction. Frederic Manning's The Middle Parts of Fortune is a similar attempt from a British perspective and Generals Die in Bed by Charles Yale Harrison from the Canadian. The problem can be seen in the cliché that war is 99 per cent boredom and one percent terror. A novel that attempts to reproduce this experience cannot be truthful without risking narrative momentum and acquiring an episodic, directionless character.

One writer who has successfully negotiated this difficult terrain is Pat Barker. Her magnificent Regeneration trilogy by combing the stories of Owen, Graves and Sassoon with a hyper realistic depiction of the front is a triumph.

The Great War continues to affect us in personal ways. The development of Anzac Day as a response to a collective yearning for meaningful national ritual; as opposed to a spree for returned soldiers, is only the most obvious example. Then there are the direct effects. Had my great grandfather not been killed in April 1917 my great grandmother would never have emigrated from Scotland to Australia; someone else would be writing this article. Many Australian families are still marked by the effects of the 250,000 casualties (some 69,000 deaths) through the impact on our grand parents and parents.

The resurgence of interest in family history evident in both television and on the internet is testimony to this and also suggests that Hobsbawm may not have got everything right. The trick will be - and this is the true role of history - to ensure that the past we rediscover is not merely a fantasy designed to serve our contemporary narcissism.

Protecting Software in the Digital Age (published in Law Society Journal September 2014)

Protecting Software in the Digital Age

Grant Hansen,

Partner, Holman Webb 

In the seminal case on damages for software infringement, Autodesk v Cheung (1990) 171 IPR 69 Justice Wilcox observed that:

one matter which is, in my opinion, relevant, is the difficulty computer program owners face in trying to protect their copyrights. Computer software is easy to duplicate, distribute and conceal. Particularly in a case where a person is supplying computer programs as an adjunct to other equipment, and is therefore not advertising the supply, infringements may be difficult to detect. And, when they are detected, proof of the facts may be a substantial task

Autodesk v Cheung involved a physical sale of counterfeit software, installed on PCs by a system builder. The case predates the distribution of software using internet connections. In the “digital economy” software can be downloaded and activated by an end-user without dealing with physical product. Much of this activity - such as sales on platforms such as eBay and downloads from sites which advertise their purpose -  remains visible. Other transactions using peer to peer technologies are more difficult to detect.  Software copyright owners invest considerable effort in seeking to promote authorised use of their software.

To see what is at stake one has only to consider the fate of the recorded music industry. From 1999 to 2013 music sales in the US dropped from US $14.6 billion to US $7 billion (reference RIAA website). While the development of subscription models such as Spotify now means that end users are at least prepared to pay something for their music, that outcome has been a pyrrhic victory for owners of music copyrights who now receive as royalties a proportion of a much smaller pie than before. Instead of paying twenty or thirty dollars for a CD the consumer can pay ten dollars a month for virtually every CD ever made. That is good for consumers but the long term effects on creative output remain to be seen. Certainly, anecdotal evidence suggests that musicians now make their money by touring rather than by selling recordings.

“Channel” and “End-user” Infringement

Software infringement manifests in two principal ways: “channel” and “end user” infringement. Channel infringement involves the sale of unlicensed software and or the means of activating and using software (typically, on the internet, by sale of product keys that permit activation of downloaded software). Channel infringement can be dealt with using test purchases to gather evidence of infringement. Liability is therefore usually not in issue. Running such enforcement programs cost effectively and identifying the quantum of infringing sales remain a major challenge but generally speaking software developers have been fairly successful in closing down illicit channels of distribution.

A more difficult challenge is posed by commercial end user infringement.

In 1988 major software copyright owners formed the Business Software Alliance. Members include most major software developers and include Adobe, Apple, Autodesk,  Baseplan, Bentley, Dassault Systèmes, Microsoft, PCT, and Siemens. The BSA is an industry initiative that operates throughout Asia, Europe and North and South America. Software owners in each jurisdiction have formed country committees which administer a compliance programme in that jurisdiction. Members pay subscription fees and agree that the proceeds of enforcement are paid to the BSA to fund further enforcement and education.

The big markets for enforcement work are not surprisingly in the developing economies of Asia where non-compliance rates frequently exceed 50 per cent.

Australia may lead the world in downloading unlicenced versions of Game of Thrones but our surveyed non-compliance with software is average for a developed economy, about 21 per cent valued at US$743 million in a 2013 (reference BSA Global Software Survey 2014).

The remit of the BSA is to promote authorised use of software by end-users. It is a feature of software enforcement that where one product is being infringed normally several others are as well.

Motivated Informants

Obtaining evidence of end user infringement is of course the major challenge. Infringers rarely spontaneously confess. Unlike channel infringement there is no public nexus - no point of sale  - where evidence can be obtained. The BSA in Australia therefore usually acts on information received. Informants come forward for a variety of reasons - to claim a reward; to get even with an employer they feel has treated them poorly; and because they do not agree with using unlicensed software for profit.

The use of motivated informants is an unusual feature of an essentially commercial jurisdiction and of course great care is required in assessing the reliability of the information provided. Generally speaking however, by assessing the consistency and specificity of the information and comparing that with publicly available information it is possible to form an accurate view of the informant’s reliability.

The BSA always gives the Respondent an opportunity to produce evidence of that it was in fact licenced (contrary to the information received). If evidence of licencing is not forthcoming the BSA then seeks to reach an appropriate negotiated settlement

If that is not possible the affected BSA members have a choice between commencing proceedings (based on the evidence provided by the informant) or making an application for preliminary discovery.

Preliminary Discovery

Preliminary discovery is a highly technical jurisdiction under rule 7.23 of the Federal Court Rules. It  requires evidence, at the time of the application, that: the Prospective Applicant:

i)       may have the right to obtain relief in the Court from a Prospective Respondent;

ii)     after making reasonable enquiries, does not have sufficient information to decide whether to start proceedings ;

iii)   reasonably believes that:

(a)     the Prospective Respondent has or is likely to have, or has had or is likely to have had, in its control, documents directly relevant to the question whether the Prospective Applicants has a right to obtain the relief; and

(b)   .inspection of all of the documents sought by the Prospective Applicants ;

would assist in making the decision to commence substantive proceedings.

This requires evidence from an appropriate decision maker within the Prospective Applicant. Given that Prospective Applicants are typically large multi-national corporations with complex internal delegations of authority, careful consideration is necessary. In Telstra Corporation v. Minister for Communications (no. 3) [2007] FCA 1567 the Prospective Applicant failed because the evidence going to the Prospective Applicant’s reasonable belief was from a person with insufficient authority to make the decision to commence proceedings.

Nor is preliminary discovery available when the Prospective Applicant has formed the view that it does have a right to obtain relief. See Gibson v. ANZ Banking Group Ltd (VSC Gobbo J. No 10670/91).

Clearly there is a tension here between having a reasonable belief that information may be held by a Prospective Respondent which will assist in making the decision to commence proceedings (which entitles the Prospective Applicant to preliminary discovery)  and actually having a belief that  a cause of action exists (in which case preliminary discovery is not available). The more reasonable the belief that the Prospective Respondent may have information that assists in the decision to commence proceedings, the more likely it is that the Prospective Applicant will be found to actually believe that it has a cause of action.

Commencing Proceedings

For this reason, if sufficient evidence is held to permit the particularisation of at least one instance of infringement as required by rule 34.35 of the Federal Court Rules, the better course is to commence substantive proceedings and to then obtain an order for discovery pursuant  Division 7.3 of the Federal Court Rules. Such orders are however not made as of right; it is necessary to persuade the Court that the Respondent has documents within its control that are directly relevant to a real issue in dispute.

Nevertheless, Courts do routinely make discovery orders in copyright infringement matters because the quantum of infringement is usually a real issue in dispute and can most reliably be addressed using the Respondent’s business records.

Whenever software is installed on a computer, a record of that installation, including the time and date of the installation is created and stored on the computer’s permanent storage medium. Those records can be accessed and reproduced in a written form. If the records show an installation and the respondent does not have a corresponding licence then liability for that instance of unlicenced reproduction can be established.

Traditionally in copyright matters, the respondent’s first line of defence was to put the applicant to proof of their title to the copyright in question. This does not happen in software cases because of the presumptions as to ownership under s129A of the Copyright Act . Providing the owner asserts its ownership on the software using the copyright symbol © ownership is deemed to be established unless disproved by the Respondent.

Software created in a country which is a signatory to the Berne Convention for the Protection of Literary and Artistic Works 1886 or the Universal Copyright Convention Geneva 1952 receives the full protection of Australian law by virtue of the operation of the Copyright (International Protection) Regulation 1969 made pursuant to s 184 of the Copyright Act.

Evidence

More often than one might expect however, the quality of information provided

by an informant is astonishingly good and includes internal documents and screenshots of network files disclosing the existence of “crack files” or internal emails containing admissions of the use of illegal software.

Older readers will remember when ephemeral communications were by telephone or even, incredibly, face to face. In those times the litigators’ task was much harder. In the digital age, the email is truly the litigator’s friend.

The question arises however, can use be made of internal documents obtained by an employee or consultant, perhaps covertly, which incriminate the employer?

Section 138 (1) of the Evidence Act (Cth) 1995 provides that evidence obtained

“improperly or in contravention of an Australian law” is not to be admitted unless the desirability of doing so outweighs the undesirability of admitting such evidence Section 138(3) sets out matters the court can take into account such as the probative value of the evidence and the gravity of the contravention and the difficulty of obtaining the evidence without “impropriety”.

The first question is whether there is in fact any impropriety in the way evidence has been obtained from the Respondent. Sections 126A to 126E of the Evidence Act 1995 (NSW) create “protected confidences” but internal office communications are not within these categories. Sections 117 to 131 of the Commonwealth Evidence Act deal with privileged communications but again these do not include internal office communications. Such documents are however business records and admissible pursuant to s69 of the Evidence Act.

Even if a contractual provision purports to prohibit the disclosure of an incriminating document, it would remain potentially admissible by virtue of s138 (1) of the Evidence Act and at common law.

In National Roads & Motorists Assn v Whitlam [2007] NSWCA 81, Campbell JA (with whom Beazley JA and Handley AJA agreed) observed in relation to “confidential information” which is not subject to a statutory privilege,  the usual approach of the court is that it is more important that such evidence (if relevant)  be used in the administration of justice rather than that the confidence be protected.

The common law position is clear enough. The authorities established that the public interest in the disclosure (to the appropriate authority or perhaps the press) of “iniquity” will always outweigh the public interest in the preservation of private and confidential information.  In Allied Mills Industries v Trade Practices Commission  34 ALR 105 at 127 Sheppard J quoted with approval Wood VC in Gartside v Outram (1856) 26 LJ (Ch) 113, (at 114): “The true doctrine is, that there is no confidence as to the disclosure of iniquity. You cannot make me the confidant of a crime or a fraud, and be entitled to close up my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intention on your part: such a confidence cannot exist.”

Allied Mills concerned breaches of the Trade Practices Act. There is no doubt that that logic would also apply to breaches of the Copyright Act, many of which breaches are also potentially punishable by fines and imprisonment. (see ss132AC and following of the Copyright Act) Commercial infringement (reproduction), sale of and possessing infringing copies for a commercial purpose are all criminal offences.

As a practical matter however this issue rarely needs to be tested. Once the applicant knows a specific document exists its production can be required by a notice to produce pursuant to rule 20.35 of the Federal Court Rules, subject only to the recognized categories of privilege. If the document is not found by the respondent or is “lost” then the extant copy in the informant’s possession will, subject to s138 of the Evidence Act be admitted into evidence.

Indeed, the temptation to destroy evidence is significantly reduced by the Court’s power to strike out a defence in situations where evidence has been destroyed. In such cases it will be open to the Applicant to make an application for an order under rule 16.21(f) of the Federal Court Rules) to strike out the defence. See Moody Kiddell & Partners Pty Ltd v Arkell [2013] FCA 1066 and Palavi v Queensland Newspapers Pty Ltd [2012] NSWCA 182).

Damages

Generally speaking, the major legal issue in most software cases is assessment of damages. Typically that is done by applying what is known as the “licence fee test”. That is based upon an inference that the Court may draw that a respondent, when presented with a choice between paying the licence fee and not using the software would have paid the necessary licence fee; see  Autodesk Australia Pty Limited v Cheung (1990) 171 IPR 69 and Microsoft Corporation & Ors v Ezy Loan Pty Limited & Anor (2004) 69 IPR 54.  Damages are payable irrespective of whether there has been any belated legalisation.

In Autodesk Inc & Ors v Ginos Engineers Pty Ltd & Anor [2009] FMCA 14 at [109], His Honour, FM Lloyd Jones held (in respect of the licence fee test) that in that case “the proper measure of damages is the retail price that would have been paid by the respondents had they obtained the licences they were required to. If the respondents had purchased valid licences, they would have purchased them at the retail, not the wholesale, price.”

Compensatory damages are however just the beginning. Section 115(4) of the Act provides that the Court is empowered to make an award of additional damages under section 115(4) of the Act where the Court is satisfied that it is proper having regard to the following:-

(a)               the flagrancy of the infringement;

(b)               the need to deter similar infringements of copyright;

(c)               the conduct of the defendant after the act subsequent to infringement or after an allegation of copyright infringement;

(d)              whether the infringement involves the conversion or work or other subject matter from hardcopy or analog form into digital or other electronic machine readable form;

(e)               any benefit to have accrued to the defendant by reason of the infringement; and

(f)                all other relevant matters.

The deliberate infringement of copyright for gain constitutes deliberate and flagrant conduct (see Microsoft Corporation v PC Club Australia Pty Ltd [2005] FCA 1522 at 223 per Conti J).

The availability of additional damages is a powerful incentive for respondents to settle software infringement claims at an early stage. Awards of multiples of the compensatory damages are routine. Post detection conduct is one of the factors a Court can have regard to in awarding additional damages.

Authorisation

The other great incentive for respondents to settle is the concept of authorisation under s36 (1) of the Copyright Act. Notwithstanding the High Court’s decision in Roadshow Films Pty Ltd v iiNet Ltd (2012) 95 IPR 29, company directors still have the requisite control to be exposed to personal liability where their company has engaged in infringing conduct. That can be the case even when the director had no actual knowledge of the infringement.

In University of New South Wales v Moorhouse (1975) 133 CLR1 the High Court found that authorisation included “countenance or acquiesce”. In Microsoft Corporation & Ors v PC Club Australia & Ors [2005] FCA 1522 at paragraph 277 Conti J applied the Moorehouse to directors of a private company observing:-

"As directors in office of PC Club at all material times, neither Ms Lee nor Mr Fang can escape liability ...for the same quantification of s115(2) damages for infringement of copyright. By virtue of their respective appointments...and their full time...employment...each of them must be taken to have authorised the infringing conduct of PC Club."

In APRA v Jain (1990) IPR 663, a decision of the full Federal Court, Mr Jain was the CEO of the proprietor of Old Windsor Tavern but he left the day to day running of the tavern to an employee. The Court found (at 671):  "Mr Jain knew that music would be performed at the tavern, but did not concern himself  with the actual pieces of music which would be performed."

Mr Jain was found to have authorised infringements even though "he did not concern himself with the actual pieces of music which would be performed."