Fish Curry with Spicy Vegetables

Ingredients

Fish Curry
400gr White Fish, cubed
1 Onion
1 Clove Garlic
1 Cm Chopped Fresh Ginger
1 Can Tomatoes
1 Tsp Ghee
1/2 Tsp Dried Chilli Flakes
1 Tsp Tamarind paste
125 ml Coconut Milk

Spice Mix
2 TBSP Ground Corriander
1 TBSP Ground Cumin
1 Tsp Black Pepper
1/2 Tsp Tumeric
1/2 Tsp Ground Chilli

Spicy Vegetables
1 Tsp Mustard Seeds
1 Tsp Cumin seeds
1 Tsp Ghee
1 Carrot
1 handful of green beans
1 Cl garlic

Method

Fish Curry
Fry Onions in the Ghee until they are just starting to brown then add the garlic, ginger and chilli flakes and cook for a minute or two more.
Add the spice mix to the pan and fry until they become fragrant.
Put the fried onion mix into a food processor and add the tomato, coconut milk and tamarind and blend into a paste.
Cook the paste in a pan until the tomato is cooked out (you'll be able to taste when the tomato is cooked, about 5 minutes).
Add the fish and simmer until the fish is cooked.

Spicy Vegetables
Lightly steam the carrot and beans.
Heat the ghee and add the cumin and mustard seeds.
Cook until they "pop"
Add the vegetables and garlic and lightly fry.

Serve with rice.

Optus v NRL: Copyright's Dark Clouds

The Full Bench of the Federal Court recently handed down its decision in the ongoing Optus TV Now case (National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59). The Full Bench overturned the findings of Rares, J in the Federal Court and their conclusions in this appeal will have serious implications for cloud computing in Australia.

In this post, I will only be examining one of the issues that were examined by the court - the issue of who "makes" a recording.

In Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2) [2012] FCA 34, Rares, J found that the subscriber to the TV Now Service was the principal who "made" the recording. This is important because it releases Optus from liability for primary infringement and brings the subscriber under the protections of s111 of the Copyright Act (1968) which allows the "Recording [of] broadcasts for replaying at more convenient time".

According to Rares,J at [63]:

"the user of the TV Now service makes each of the films in the four formats when he or she clicks on the “record” button on the TV Now electronic program guide. This is because the user is solely responsible for the creation of those films. He or she decides whether or not to make the films and only he or she has the means of being able to view them [...] The service that TV Now offers the user is substantively no different from a VCR or DVR."

At [65]:

"[...] The legislative materials do not support the rightholders’ argument that, in effect, the user could only utilise technology or equipment with which he or she had some greater connection than the “record” button on the TV Now electronic program guide"

Rares, J approached the TV Now services as an analogue for already existent non-infringing technologies and recognised that the exception in s111 was to allow for technological advances, arguing at [77] that: 

"The value of the exception created by the Parliament, that is designed to give greater flexibility to individuals so as to take advantage of technological advances, would be seriously eroded if a service provider, who has structured a service as carefully as TV Now, had to lead evidence about each user’s individual purpose on each occasion of use"

These arguments were rejected by the Full Bench and their findings, if brought to their logical conclusion, would erode the usefulness of s111 to encourage technological advances.

At [58] the Full Bench placed the emphasis on the producing of the "physical thing" (ie. the recording), rather than the actions that caused the "thing" to be made.  This, by definition placed greater emphasis on the service provider rather than the subscriber as a "maker", rejecting Rares,J's argument that the user did not need a "...greater connection than the record button..." (Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2)[2012] FCA 34 at [65].)

The Full Bench stated at [59]:

"We merely note here that a subscriber’s clicking on a button labelled “record” may trigger a sequence of actions which result in copies of a selected programme being made, but it does not necessarily follow that the subscriber alone makes that copy."

Furthermore, the Full Bench rejected the analogy with already existent technologies stating that the "TV Now" system performs the functions of the Optus-subscriber relationship (albeit automated), not just the recording function, and stated at [64] that:

"is not apparent to us why a person who designs and operates a wholly automated copying system ought as of course not be treated as a “maker” of an infringing copy where the system itself is configured designedly so as to respond to a third party command to make that copy"

If this argument is brought to its logical conclusion, it would be extremely difficult for a cloud service provider with which an individual had a contractual relationship to allow their service to be used by that individual to make a recoding of copyrighted material. If they did, the service provider is likely to be the "maker" as it was in this case.

This argument pushes many different automated subscriber cloud-based services outside of the s111 exception. This ultimately erodes the utility of the exception in s111 and ultimately ties it to physical devices over which a user has possession and control and excludes any cloud-based subscription service which enables a user to use that cloud service to make a recording of copyrighted material.

The emergence of cloud-based services that allow access to recorded digital content, such as TiVo (EDIT: although this is not strictly a cloud based service, the problem comes from the mediation of commands by TIVO from the user to the device [thanks to @neatest for pointing this out]), are now under considerable threat from copyright holders and the danger is that investment in these innovative technologies will be stalled in Australia.

As has been pointed out repeatedly, hindering access to content is a major driver of copyright infringement. However, rightsholders have been extremely reluctant to engage with technology to enable that access, preferring to hinder technological advancement by litigation (and where that fails, legislation).

Technology companies have become extremely frustrated with the content industries, stating that they may as well be "talking to a brick wall". Content industries themselves seem to be content to rely on ever more draconian copyright laws to protect their ailing business models.

While unfilled consumer demand remains and consumer behaviour continues to change in response to technology, infringement will continue. Parliament must recognise that the law must adapt to these changes in consumer behaviour and to some degree accommodate those changes (while still protecting the interests of copyright holders). As Rares, J pointed out in his FCA opinion at [74], s111 was constructed to do exactly that. 

However, the interpretation of s111 by the Full Bench has eroded its usefulness and their construction of the section is backwards-looking, legalising old technologies while ignoring the new. Unless this construction is re-examined and widened in the inevitable appeal to the High Court, parliament must expand s111 to reflect the realities of modern consumer behaviour. If it does not, investment in new legal technologies that advantage both technology and rightsholder companies will stall. The inevitable result is more infringement and that benefits no-one.

Observations from the US: The economy and partisan politics

In his recent speech to the American Chamber of Commerce (SA), Reserve Bank of Australia governor Glenn Stevens outlined Australia's exceptional economic performance in the face of global uncertainty. Stevens urged Australians to see the glass as half full even though many Australians have been determined to see that the Australian economy is in crisis - a perception that is helped by the hysterical campaigning of the opposition parroted by a captured Australian media.

According to Stevens:

"[...]the nature of public discussion is unrelentingly gloomy, and this has intensified over the past six months. Even before the recent turn of events in Europe and their effects on global markets, we were grimly determined to see our glass as half empty. Numerous foreign visitors to the Reserve Bank have remarked on the surprising extent of this pessimism. Each time I travel abroad I am struck by the difference between the perceptions held by foreigners about Australia and what I read in the newspapers at home."

I have recently spent six weeks travelling around the United States and this has been my experience as well. I observed a deeply depressed American economy and a highly polarised political climate. There was a general feeling of malaise from locals I spoke to about the current state of the American economy. Many of them knew about Australia's excellent economic performance and were bemused by the pessimism about the Australian economy expressed by Australians.

The middle class in America has been under sustained assault from a succession of policies promulgated from rent-seekers and interest groups through Congress.

According to the Congressional Budget Office:

"[...] over the 1979 to 2007 period, the highest income quintile’s share of market income increased from 50 percent to 60 percent, while the share of market income for every other quintile declined. In fact, the distribution of market income became more unequal almost continuously between 1979 and 2007." 

Any attempt to mitigate the outcomes of these policies has been systematically blocked by the partisanship that has pervaded the American political system.

This, combined with the unemployment rate that has exceeded 8% since February 2009, has gutted the middle classes. This has reduced the spending of the middle-class that is the underpinning of the economy.

One of the locals I spoke to (a small business owner) lamented "there is no middle class in America, just the rich and various classes of poor".

Everyone I spoke to was stunned by Australia's economic figures (particularly the unemployment rate) and even more stunned that Australians were complaining about the economy. However, once I explained the partisanship that had infected our political discourse, many of them recognised the political climate that has led the American economy to its current state.

There is a lesson in this for Australia: the sort of partisanship that is being pursued by the opposition and its pandering to rent-seekers and interest groups has consequences for the wider Australian economy. When even the central bank is warning about its effects on confidence, the opposition should take note and begin to act in the National interest, rather than their own interest in gaining power at any cost.

Australians should see the glass as half full: our economy is doing well, unemployment is very low and inflation and interest rates are also low - if Australians really want a view of how "Hockeynomics" and Abbott-style partisan politics works out: go the the US and observe the future.