NSW Mining Critical Review Site Censored : Melbourne Indymedia

From the site http://www.miningnsw.com.au, a critical review of the NSW Mineral Councils current propaganda compaign :

"You might not know this, but mining is having devastating impacts on communities and the environment. Most mining in NSW is for coal. This is fuelling global climate change, which is critically endangering life on our planet. The NSW Minerals Council is now running a spin campaign to fool you into thinking that we need the coal mining industry. We invite you to dig a little deeper and find out the real facts."

Unfortunately this website has been forced to be taken down by the Axxs.org Collective due to Freehills lawyers for NSW Minerals Council using this piece of legislation :

http://www.austlii.edu.au/au/legis/cth/consol_reg/cr1969242/s20j.html

which effectively Axxs.org Collective has to comply too, regardless of the legitimacy of the claim of copyright infringement.

The site was a fair use critical review parody site of the NSW Mining propaganda campaign, and brought you facts regarding what was wrong with it.

The statements by the solicitors for the NSW Minerals Council does not explicitly state what exactly is copyright :

"Content in which our client owns copyright may be viewed on it's website, http://www.nswmining.com.au. We ask that you compare our client's website to the offending websites referred to above. On comparison, you will see the copyright infringement issues that our client has with the abovementioned websites."

As the intended recipient of the email, we disclose this information, so that others can see how from our point of view, critical review is being attacked using this piece of legislation.

When asking what exactly was copyright on the phone by one of the collective members, so that we may take it down promptly, and fulfill our obligations, we were told, 'All of it', everything. It was pointed out the source code was totally different, and was told it was copyright to their client, even though elements of the pages, on the site itself, where pointed out as to who the images etc belonged too. This is a very interesting claim, that custom php code by one of our users, images by other parties, the colours, the lot, is the intellectual property of NSW Minerals Council. We have been forced to take the site down by this legislation, as the solicitors pointed out that according to it, we must act appropriately on reciept of such an email, or have failed to fulfill our legal responsibilities. Hence we have done so.

You do the math.

solicitor reaction
by Tom McLoughlin, solicitor nsw Tuesday February 27, 2007 at 02:17 PM

i won't second guess your situation, but suffice to say you obviously don't want to take the legal risk of being sued. But that's not to say you wouldn't have won and had a costs order in your favour.

I'm no expert on copyright, though I did a year as a trademarks examiner which is not really the same thing, and I would say any work that has been copied and then sufficiently changed adapted and altered so there no reasonable chance of confusion with the original even if similar, especially if obviously satirical and as comment or opinion, would likely be legally safe, other things being equal like no defamation etc.

But yes it takes guts to stand up to legal thuggery and oppression, and each activist has to make their decisions in their own circumstances. Good luck and do get more pro bono legal advice.

Also note apparently the NSW Liberals have done similar to the ALP recenlty in the NSW election context I recall reading recently but they made sure it was obviously not official, not the real ALP government, except I think the website name. Which then raises the question does say Morris Iemma have property in his own name. Funnily enough the answer is probably no, whereas say an actor who uses the name as a commercial brand may well.

Anyway that's my provisional feedback and not nearly the final legal word on this situation. Good luck.

Satire like cartoons is valid free speech.

Also another little gratuitous bit:

When I said absent defamation in the material on the website, actually the law now nationally is corporations can be defamed above say small ones of 10 members in the name of free speech (likely as a result of reforms within the James Hardie campaigns on asbestos).

But corporations being what they are, are getting creative to sidestep this exemption.

1. is the celebrated David Jones suit of Australia Institute for alleged misleading and deceptive statements in the course of business by issuing a think tank report on David Jones with some strident criticism. All very arguable and before the courts now.

2. Another curious one: Treasurer Costello recently (also behind creative common law attacks on unions in the Dollars Sweets case) announced changes to the 'secondary boycotts' law of the Trade Practices Act or somewhere (?) to outlaw 'hindrance to the sale of goods'. It got a write up by Phillip Coorey in the Sydney Morning Herald recently.)

This was targetted at PETA advocating naming and shaming of animal cruelty wool production. As if naming and shaming is anything other than democratic. But really it was an initiative to boost Costello's leadership aspirations to the Right of Genghis Khan, ... err I mean the Right of the Coalition party.

I don't think a respectable court in Australia will be willing to find democratic naming and shaming an 'unlawful hindrance to the sale of wool' for simply giving information to consumers about cruel practices. It might cover protester blockades though. Might not cover a symbolic picket line though without actual obstruction.

But it shows the flirtation with fascism on Costellos part for his own career prospects, and the determination of corporations to oppress free speech as much as they can, even if they had to let the James Hardie obscenity through to the keeper re asbestos criminality or tempt a civil riot at every James Hardie asset in the country. But I don't know how long that window of sunshine to the exemption from defamation is likely to last.

Again this is only provision legal advice, and no substitute for getting your own lawyer.

[On a personal note an ex at law school did a thesis to help Costello with his common law union busting. I guess that's why she dumped me. Different values.]

In the public interest this subscriber material a week old now:

Morrisiemma.com -- the Libs go cybersquatting to build trust
Date: Monday, 19 February 2007
Thomas Hunter writes:

When NSW voters log on to do some Premier shopping ahead the state election in March, they’ll be surprised by what they find at http://www.morrisiemma.com:

“Labor loves to talk about flip flops … they do it all the time.”

“Dam Fools. Water strategy? What water strategy?”

“The biggest risk facing NSW at this election is that nothing changes.”

An ill-timed outbreak of political honesty? Not quite: this is actually a website run by the NSW Liberal Party (the Premier’s official site has an additional.au on the URL).

Beneath the brief animation you can find the name Graham Jaeschke, State Director of the NSW Liberal Party.

Jaeschke appears to have borrowed this "cybersquatting" strategy was from his Victorian counterparts, where the move backfired to some degree during the Victorian election last year when Victorian Liberal leader Ted Baillieu directed radio host Neil Mitchell to the Bracks Broken Promises website (now offline). Baillieu denied knowing who was behind it, but within moments Mitchell revealed the website was authorised by Julian Sheezel, state director of the Victorian Liberal Party. There was even a link to it on the Victorian Liberal Party’s website. Much embarrassment followed.

So what recourse does the NSW Labor Party have? Can you stop this sort of negative campaigning? And what sort of rights does a state premier have to his own name in cyberspace?

An internet law expert told Crikey that the first step is assessing the legitimacy of the site. In this case, no attempt has been made to disguise who’s behind it. There’s no attempt to obtain a financial advantage by using someone else’s name. Which raises the question, does someone like Morris Iemma have “rights” to his name which allow for the closure of the site?

The answer is probably not, because unlike Julia Roberts, Iemma’s name doesn’t carry any commercial rights. Indeed, Roberts won a case on those grounds back in 2000.

Further, Labor might argue it’s defamatory, but the Liberal Party would argue it’s about informing the electorate, and that if negative campaign information can be run in newspapers or on television, why not online? Overall, it’s doubtful the Labor Party has any recourse through the law.

But what does it say about the credibility and trustworthiness of the party that wants to run NSW? "

[Grovelling thanks to crikey.com.au for letting me lift this one. The genuine Morris Iemma website via google is here:

http://www.morrisiemma.com.au/

that is with the .au Try watching the video without gagging at the USA style shmultz.

The rival Liberal one is still up there as a direct attack advert. Without the .au]

Heya, these are good points in fighting this, but according to the legal aspect of it, regardless of the issue, the content in dispute has to be brought down, or WE as carriers, break the law. It is a separate issue. Of course they could win the argument, and probably will (hopefully, section 41 of the copyright act clearly states these fair use situations or parody and critical review) but it has to be done in a counter claim, AFTER the takedown. We get put in the position as the carrier, having to monitor this. the counter comes thru us, and we can inform them then, that unless they take these people to court in 10 days, the site goes back up.

The point really, is that under the current legislation, it is being used to keep the site offline. The fact or right or wrong just doesn't mean anything. If right, TOTALLY RIGHT, very clearly, by law, we have to act as per the legislation on recieving such an email from a solicitor. THAT was the solicitors stance when I tried explaining that they can't copyright HTML/PHP that is totally different, and when I asked them to list the actual items that are copyright.

they said, bad luck basically, you have to comply to the law on receiving this, or break it. ie: this law is flawed, and badly.

as a descriptive point only, I'm not condoning anything :
Anyone feel like drafting up the fact a government site contains their copyrighted information/images/HTML? I mean, I reckon a lot look similar to activist sites .... just claim the lot, html, images everything. It'll be down for 10 days at least.

http://digg.com/environment/Mining_Lobby_Silencing_Community_Comment

It just goes to show we need a genuinely decentralised world wide web, of the type that we were marketed when the current one was launched.

The correct procedure is this -- do NOT ask them anything on the phone, don't even talk to them on the phone. You send a request IN WRITING stating, "yes we will comply when you send back IN WRITING a description of exactly which material is a Copyright voilation AND we want a Statutory Declaration by the rightful Copyright holder (or their representative) identifying the specific material in question."

That's the important bit -- the bit about getting it in writing and getting a Statutary Declaration. When they send that through, you remove the material that they have identified AND if you think they are full of bullshit you then go and nail the bastard for creating a false stat-dec (a false stat-dec can get the individual who signed it into jail so that gives them something to think about).