On Stalin's Team

On Stalin's Team

By Sheila Fitzpatrick

Okay here is the thing about Stalin and historiography. He manages to crystallize every major ideological conflict of the twentieth century. As a result, the debate about Stalin oscillates between those like Robert Conquest who portray Stalin's regime as the embodiment of totalitarianism and Stalin as the greatest mass murderer in history and a bungler to boot; those like Simon Sebag Montefiores whose Court of the Red Tzar depicts Stalin as brilliant, charismatic and cruel; and the revisionists, such as Sheila Fitzpatrick and Arch Getty, who seek  to interpret Stalin as a rational albeit ruthless political operator.

One thing is for sure, while Stalin was the boss (and that's what they called him in Russian) millions and millions of Soviet citizens died. Now admittedly, about twenty million of those were killed by the Nazis but that still leaves a massive butcher's bill.

And yet, what if Russia had not industrialised during the twenties and thirties at break neck speed and at the cost of massive human suffering? Well no T-34 tanks for a start. And the Germans could probably have held onto Festung Europa until they developed nuclear weapons. It really does not bear thinking about.

In On Stalin's Team Sheila Fitzpatrick seeks to revise the view that Stalin operated as dictator surrounded by sycophantic yes men. The opening of many Soviet era archives since the 1990s does mean that it is possible to revisit the Cold War Robert Conquest view of Stalin; the risk is - as Fitzpatrick acknowledges in her introduction - that by humanising Stalin and interpreting his actions as, in a sense rational, one can be seen to become an apologist for his crimes.

Fitzpatrick makes a pretty compelling case for her argument, at least up until the post war period. It is indeed striking that Stalin's own family suffered as much or more in the Great Purge as other Politburo members. Also the phenomenon of "dosage" - the way in which team members fell gradually from high office to the  Gulag or worse  - is indeed best explained by Stalin's need to sell his decisions to other team members.

What the book lacks however is a detailed analysis of what the various team members actually achieved in their areas of relative autonomy (with the exception perhaps of Molotov).  Orzhonikidze in industry and Mikoyan in trade for example have fascinating stories to tell but, to be fair to Fitzpatrick, this would require a much larger book.

The Edge of the World

The Edge of the World - How the North Sea Made us Who We Are

By Michael Pye

In The Edge of the World Michael Pye  gives us a brilliant rethinking of the way in which medieval Europe became modern Europe. This is the story of seafaring and trading people - the Frisians, the Norse, the Hanseatic league and all the peoples who engaged in the economy of the North sea.

His method reminds me very much of Inga Clendenin's close reading of the primary sources as evinced in Dancing with Strangers, or Philip Jones'  analysis of post contact Aboriginal artifacts in Ochre and Rust. Pye  focuses on very specific historical detail - be that a known historical event, a clause in a contract, or a physical artifact -  and  by interrogating them for meaning is able to draw plausible wider inferences.

Thus he focuses on the meaning of cash hoards as opposed to hack silver; silk trimming on shoes found in the ruins of an 11th century Norwegian town; the specifics of the construction of Norse buildings at Anse aux Meadows in New Foundland; the details of marriage contracts. Combined with the surviving literary sources this close reading of the sources yields rich insights.

Pye is particularly interested in the way in which the use of money as an an abstract measure of value is related to the development of mathematics and science. In the world of the North Sea this dynamic had its most immediate application to trade, navigation and ship building and windmills. There were implications for politics, capital formation and the status of women.

Along the way he manages to recover innumerable fragments of past lives and by relating them to the larger patterns he infers give them a meaning beyond what the physical artifact or contractual clause alone could achieve.  An unusual and valuable work. 

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.

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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