IceTV Iced: Kangaroos Hopping Mad

The Patry Copyright Blog: In August of last year, I did a post on a decision by Justice Annabelle Bennett of the Federal Court in Sydney, Australia in a copyright infringement suit brought by the Channel Nine Network in Australia against IceTV for the latter’s electronic program guide. Ice’s EPG copied schedule information from Nine’s weekly guides. Earlier background on the suit can be found here in a post by Kim Weatherall, and here in a post by Peter Black. IceTV was found to have copied information from Channel Nine, but to have engaged in its own research as well, combining information from a number of sources. This activity led the judge to conclude: “It is open at law to a person to ascertain the facts recorded in a compilation on the basis of that independent inquiry. This is what IceTV did…” That made sense to me.

On May 8th, Justice Bennett’s decision was reversed on appeal. Here is a link to the appellate opinion. Kim Weatherall has a long post on the opinion here, with a follow-up with other excellent links here. As Professor Weatherall points out regarding the appeal: “This truly was an all-stars copyright case: interesting issues, an all-star IP bench (including the CJ himself, plus two senior IP heavies - Justices Lindgren and Sackville) (note too - the same bench that sat on the Desktop Marketing case), no less than 4 senior counsel (all of them IP heavies in their own right) plus juniors.” That said, for American lawyers, the opinion, as with the earlier opinion by in Desktop Marketing Systems Pty Ltd. v. Telstra Corporation, Ltd. [2002] FCAFC 112, involving telephone directories, may prove baffling. Not that baffling American lawyers should be any consideration for Australians: I am merely noting that Australian law on the issues…


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