Court Ruling on Copyright of an iPhone App?

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developer

Active Member
7 June 2014
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1
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Hi. I have developed an iphone app (not yet released to the public). I want to get a court ruling on whether it breaches copyright law, before I decide to release the app to the public. Is this possible? If so, how do I apply?

I know with tax matters, the public can apply for a tax ruling on specific matters and that tax ruling will hold up in court. Is there any such thing for other legal issues, like copyright?

Thank you :)
 

John R

Well-Known Member
14 April 2014
689
174
2,394
Sydney

John R

Well-Known Member
14 April 2014
689
174
2,394
Sydney
Hi developer,
LawAnswers.com.au doesn't permit private messaging because it is a free Q&A forum.
Can you reply with any copyright concerns in a "generic" form? For example, a "popular search engine" instead of "Google", etc.
 

developer

Active Member
7 June 2014
8
1
34
Hi John
Thanks for your response. I'll try my best. Basically I want to know if the app breaches copyright by 'authorising communication of sound recordings to the public" section 101 of the Copyright Act 1968. I've looked at section 101 (1A) to determine if authorisation has taken place and also a few case law studies but I'm not certain. The app searches certain well known websites for video clips and allows uses to play these clips. These video clips contain copyright material both owned by/licensed from the owners of copyright and also copyright material not owned by/licensed from the owners of copyright.

Copyright Act 1986 section 101
Infringement by doing acts comprised in copyright

(1) Subject to this Act, a copyright subsisting by virtue of this Part is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.
(1A) In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in a copyright subsisting by virtue of this Part without the licence of the owner of the copyright, the matters that must be taken into account include the following:
(a) the extent (if any) of the person's power to prevent the doing of the act concerned;
(b) the nature of any relationship existing between the person and the person who did the act concerned;
(c) whether the person took any other reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.
(2) The next two succeeding sections do not affect the generality of the last preceding subsection.
(3) Subsection (1) applies in relation to an act done in relation to a sound recording whether the act is done by directly or indirectly making use of a record embodying the recording.
(4) Subsection (1) applies in relation to an act done in relation to a television broadcast or a sound broadcast whether the act is done by the reception of the broadcast or by making use of any article or thing in which the visual images and sounds comprised in the broadcast have been embodied.
 

developer

Active Member
7 June 2014
8
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34

John R

Well-Known Member
14 April 2014
689
174
2,394
Sydney
Hi developer,
Authorisation is a complex (and arguably, unsettled) area of copyright law in Australia specifically in relation to video search/discovery services. You may consider reviewing the following:
As you are likely aware, the two most relevant decisions to your question are both from the Full Court of the Federal Court of Australia:
If the iPhone App is for commercial gain (that is, not for research or study, etc.), you should strongly consider obtaining formal legal advice from a lawyer with copyright law expertise. Any advice should provide you with a clearer understanding of the legal position (for you and your iPhone App) and someone (that is, the lawyer/law firm) to potentially hold accountable in the event that the advice is incorrect and you are pursued for copyright infringement. Hope this helps.
 

developer

Active Member
7 June 2014
8
1
34
Hi John

Thanks for those cases. Yes I'm familiar with both those cases; still looking into both of them. I'm not certain at the moment.. I think I'm being more on the cautious side of things; for most people copyright breach wouldn't even occur to them. There are many apps at the moment that function very similar if not the same as the app I plan. Note the app does not allow for the download of clips nor does it allow for the upload of clips nor links. It simply searches for certain links/video clips.

I didn't know that I could hold my lawyer accountable for wrong advice. So do you mean I can sue the lawyer and he/she will have to pay the penalty fees imposed upon me by a court ruling? or will it be wavered altogether? For these cases how probable is imprisonment part of the penalty? If I relied on a lawyer's advice would such a consequence be wavered?

If the lawyer is held accountable for wrong advice, wouldn't he/she always provide advice on the cautious side so they won't get themselves in trouble? If so what's the point of paying expensive legal fees for advice I already know they will provide - "more than probable if not certainly so, you will be held in breach of copyright, don't do it".

Thanks again for responding.
 

Tim W

Lawyer
LawTap Verified
28 April 2014
4,068
737
2,894
Sydney
  1. No, you can't find out in advance from the court if your app is infringing or not.

  2. To grossly oversimplify and speak generally
    (which is all we can do here, really), an app that is
    nothing but a table of links,
    operating as a sort of "super-index" of content located elsewhere
    is less likely to be a problem.
    But an app that has content where copyright in that content
    is owned by others (including, say, unlicensed samples),
    may well be a problem.

  3. The whole "fair dealing"/ "fair use" caper that they have in the US does not operate the same way in Australia.

  4. You would benefit from the formal advice of a lawyer who works in the ITCM* space.

  5. You can be confident that your lawyer will give you the best possible advice.
    If you are not somebody who can accept advice given in good faith
    from people competent to give it, then don't seek it.


*Information Technology, Communications, and Media
 
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developer

Active Member
7 June 2014
8
1
34
Thanks for everyone's responses.

If a copyright owner had a problem with my app, what is the probable course of action? would they issue a cease and detest letter to take my app out of the app store and if i didn't comply then take me to court or would/could they just take me to court without bothering to issue a cease and detest letter ?