Under the Digital Economy Act, passed controversially in mid-2010, copyright holders could send a “copyright infringement report” to ISPs with evidence of unauthorised downloading on their network. ISPs must notify subscribers against whom the allegations are made, providing education about legal alternatives, evidence and guidance on an appeal pathway.

But the scheme remains unimplemented because BT (NYSE: BT) and TalkTalk were granted a judicial review of the act in March 2011. They were ruled against a month later and appealed to the Court Of Appeal, which ruled against them once more on Tuesday in what may have been their final avenue (full ruling).

But the court did give ISPs one small concession – they will no longer be forced to foot 25 percent of the costs when alleged infringers appeal to an appeal body that will be established.

That means the UK government will need to amend the previously-published Draft Statutory Instrument outlining the sharing of costs.

Ofcom, too, will need to amend the draft code under which it will govern the scheme – a spokesperson tells paidContent it cannot finalise the code until the government’s amendment is made.

“Government will seek to make this change as soon as possible,” the UK government’s Department for Culture, Media & Sport tells paidContent. “We are pleased the Appeal Court has upheld the original ruling that the Digital Economy Act is a lawful and proportionate response to the threat posed by online piracy.”

BT tells paidContent: “We have been seeking clarification from the courts that the DEA is consistent with European law, and legally robust in the UK, so that everyone can be confident in how it is implemented. Now that the Court has made its decision, we will look at the judgment carefully to understand its implications and consider our next steps”.

Effectively, it is considering whether it can appeal to the European Court of Justice.

Keep calm and carry on

Many digital libertarians will now protest vociferously about digital rights and internet disconnection. But today’s news stops actually at letter-writing…

Although the Digital Economy Act made provision for ISPs to level technical measures against repeat offenders – like bandwidth shaping and speed throttling – the UK government would only compel Ofcom to order such measures of ISPs if Ofcom’s later research finds that latter-writing has no effect.

In fact, one of the bluntest of proposed measures, blocking of infringing websites themselves, was discarded after Ofcom’s advice that it would be unworkable.

Even if Ofcom’s research suggests a few years of letter-writing has had no effect, a spokesperson for the regulator tells paidContent the proposal for the technical measures would have to clear both European lawmakers and UK scrutiny committees. The European Commission and many parliamentarians are committed believers in internet connections as a universal right.

The decision in a Mannheim, Germany court was first reported by patent blogger Florian Mueller. It is the same case for which Apple requested a €2 billion bond in the event the decision got reversed. (It was only granted a €100 million one in the end, though.) Apple and Motorola have other cases against each other still outstanding as well, and Apple is almost certain to appeal this one if it doesn’t find a way to remove the offending item in question (a “method for performing a countdown function during a mobile-originated transfer for a [general] packet radio system”; GPRS is the data standard for pre-3G GSM networks).

In France, Samsung has been denied its request to a French court for a ban on Apple’s newest handset, the iPhone 4s, over patent violations concerning the wireless radio technology that is in the device, with the judge deciding that the request was “out of proportion” according to this Reuters article.

Samsung had originally filed its request for the device injunction back in October, literally a day after the device had been announced. At the time, Samsung had also filed injunctions in Italy, as well as in Japan — although it has withdrawn an injunction request it had made in its home market of Korea. We are still waiting to hear decisions on the Japanese and Italian cases.

Those denials to Samsung must surely smart, considering how well Apple’s new device is selling. Apple has been reporting record sales for the iPhone 4S, and some analysts are raising their quarterly forecasts on the back of others corroborating Apple’s own reports.

But it’s not all good news for Apple. Over in Australia, Apple has been denied its stay on an original decision for an injunction on the Galaxy Tab 10.1 tablet — a decision that Samsung had appealed successfully after the appeals judges decided that the Korean device giant had been treated unfairly when the first case went in Apple’s favor. The two are locked in a protracted suit and countersuit in the country, with the actual cases scheduled to be heard in the new year.

This is the second injunction setback for Apple in the space of a week: in a U.S. District Court in California, Judge Lucy Koh denied Apple’s motion to ban sales of Samsung’s tablet, after she decided an injunction would have a meaningful enough impact on Apple’s own device sales. (Indeed the Galaxy Tab has not been the major competitive force that some had thought or hoped it would be.)

The story doesn’t end there, though: Apple is now appealing that ruling, as it did in Australia, according to documents obtained by Mueller.

While these incremental advances are not obviously all going in favor of one side or the other, there is a recurring theme. Injunctions have not been as easy to come by as the companies would have thought: Apple had an early win in its fight against Samsung in Germany, where a tablet injunction is still being upheld in that country — although even in that case Samsung managed to have the ban greatly reduced, since it had originally been intended for almost all of Europe.

Even in cases where there have been injunctions, it’s arguable whether they have made much of a difference. Samsung has been having trouble shifting its Galaxy Tab 10.1, whether or not the courts are saying they can sell it or not.

With the potential still to reap lucrative licensing deals depending on the outcome of these cases, a major incentive remains for Apple and Samsung to press on with their fights. But with at least some of the power of injunctions diffused, perhaps this is a signal from the courts that they and the power of patents will not fall over like pawns in these companies’ wider chess games to master the mobile marketplace.

Androidland, which has been developed by Australian operator Telstra in cooperation with Google (NSDQ: GOOG), looks like it is the first Android-based retail setup in Australia and may be the most extensive Android-dedicated retail operation that we’ve seen anywhere yet — although if you have been to one of the big trade shows, like Mobile World Congress in Barcelona, some of the installation concepts may look familiar to you.

The shop is actually a “zone” within Telstra’s flagship retail store in Melbourne, and its purpose is to educate and delight people with all things Android.

There is a section dedicated to games; a spaceship that lets people “Androidify” themselves and fly through Google Earth; and a giant touchscreen device to play with apps. All the major Android makers, including HTC, Samsung, LG (SEO: 066570) and Sony (NYSE: SNE) Ericsson (NSDQ: ERIC), are represented. It’s not clear whether any of the devices sold at the store are unlocked to use with carriers besides Telstra.

Although Australia is in the middle of its summer right now, that has not stopped Telstra and Google from riffing on the winter theme in the entrance way, as you can see from the illustration here. It will form a central part of the carriers’ holiday season promotions, a key time for all consumer tech companies to pick up business and longer-term customers.

One company that has had yet another setback in that marketing game, though, is Samsung, whose 10.1-inch Galaxy Tab tablet was most definitely not a part of the display at Androidland when it opened today.

Over in Sydney, an appeals court has granted Apple yet another week’s extension in its injunction against Samsung over alleged patent violations concerning that tablet. That injunction was due to be lifted this Friday afternoon, after a panel of appeals judges decided that Samsung had been treated unfairly and that it should be allowed to sell the device, despite the ongoing court case.

According to Reuters, the ban will now stay in place until at least December 9, when Apple is due to make its formal response to the appeals’ court decision. In all, Apple and Samsung are filing injunction requests against each other’s devices in some 20 separate cases, although the only other case where Apple has succeeded in blocking a Samsung tablet is in Germany.

But as we noted when the appeals judges thew Samsung a tablet lifeline on Wednesday, it may be too late in any case to do anything for the device, which has not exactly overtaken the iPad in markets where it is being sold.

If only Androidland had a time machine that let Samsung go back and review its tablet strategy afresh…

The vote, from an appeals court in Sydney, should not come as too much of a surprise: during hearings last week, the three judges on the appeals bench indicated a strong leaning in the direction of Samsung in the case, with one judge questioning initial rulings by Justice Annabelle Bennett as unfair to Samsung and too in favor of Apple.

Apple had originally succeeded in getting an injunction on the device, and now has until Friday afternoon to try to get a stay on the order, which would over-ride the appeal.

But even if Apple does not succeed in getting that stay — there are already questions over whether Samsung’s Android-based device may have missed its window of opportunity in the wider market.

Despite injunctions in two countries — Germany and Australia — the device has not exactly been the killer best-seller, or even marketing juggernaut, that Samsung had hoped would dent the stronghold that Apple has over the tablet market at the moment.

Forrester’s research from yesterday on the tablet market pointed out that at the moment consumers in the U.S., currently the biggest tablet market, are most interested in the iPad (61 percent); followed by Amazon’s tablet (24 percent); with Samsung’s tablets coming in third (21 percent). That put Samsung just five percentage points ahead a tablet that is no longer being made (the TouchPad from HP (NYSE: HPQ), at 16 percent).

Song Myung-sub, an analyst at HI Investment & Securities in Seoul, speaking to Reuters, thinks that accolade should be reserved for the Kindle Fire from Amazon (NSDQ: AMZN), a low-cost Android-based tablet that has yet to launch anywhere but the U.S.:

“Apple will continue to dominate the tablet market as Amazon appears to be the only viable threat at the moment and other vendors, including Samsung, continue to struggle.”

Apple has been suing Samsung in Australia over patent and design violations, claiming that its larger Galaxy Tab tablet, which was due to debut in Australia months ago, was a ripoff of its iPad. Samsung is also lodging claims against Apple for patent violations of its own. In all there are 10 countries now where the two are sparring, including Germany, the UK, the Netherlands, France, Italy, Japan, Korea and the U.S.

Today’s news in Australia, at the very least, should serve to bolster Samsung’s public image, however, as it continues to fight its legal battles against Apple elsewhere.

Just yesterday, Apple returned to the German courts to try to extend its tablet injunction on Samsung’s newest Galaxy Tab, the 10.1N, which Samsung claims circumvents the patents in question in the existing case. That case will get heard next month, extending the lag for selling the Galaxy Tab even further in a key market for Samsung.

Last Monday, a Supreme Court majority declined an emergency petition to prevent activists from obtaining and publishing the names and addresses of gay rights opponents. In practice, the court’s refusal means that thousands of Washington state residents will soon see their names posted alongside the likes of Joan Aalto (9 Brigham St, Hubbston, MA) and Grzegorz Zyzdryn (3116 Contego Lane, Palmbeach, FL) — individuals in other states who the group, KnowThyNeighbor, has already identified online.

The case in question began two years ago and led the Supreme Court to declare in 2010 that Americans have no right to anonymous speech, except in the case of vulnerable groups. Examples of vulnerable groups over the years have included the NAACP as well as 60 members of the Socialist Workers Party who had been subjected to violence and police harassment.

The gay marriage opponents in Washington claimed they too were a vulnerable group who deserved this protection of anonymity. They cited evidence of harassment that included being mooned, “flipped off”, and glared at by two women who said “we have feelings too.” A district judge, however, ruled these incidents were not enough to let the “John Does” remain anonymous and said in October the names should be released. On an emergency appeal, a divided 9th Circuit refused to stay the ruling and last Monday the Supreme Court did the same (Justice Alito disagreed). This means the names and the addresses of the Washington voters will be revealed in short order.

Does this case, which comes at a time of growing debate over online anonymity, carry any lessons for Google (NSDQ: GOOG) and Facebook users? Recall that the companies have ignited controversy by forcing people to use their real identities when signing up for new products — see this excellent piece by Time (NYSE: TWX) magazine’s Harry McCracken on the consequences for political dissidents and others of being “unmasked” online.

The debate has even set off disputes within the tech community. Facebook’s marketing director, Randi Zuckerberg, said this summer that “I think anonymity on the Internet has to go away” and Google’s former CEO Eric Scmidt has taken to calling online anonymity “dangerous.” People like 4chan founder Christopher Poole disagree, however. Poole told a recent Mashable summit that the companies “do identity wrong” and that our online self should not be conceived as a mirror but instead as a diamond — a series of changing images that reflect the various parts of who we are. Privacy activists like the Electronic Frontier Foundation have also weighed in, claiming that our society guarantees “the right to remain anonymous.”

From the Supreme Court’s point of view, however, this right may not exist. The majority of the judges in the Washington gay rights case said there was no “freewheeling right” to be anonymous and that the Constitution protects the “right to speak, not … the right to speak anonymously.” Conservative Justice Antonin Scalia went even further, citing a series of historical studies to argue that American democracy has always demanded very public forms of participation:

Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously [...] This does not resemble the Home of the Brave.

For now, in the absence of any law about online anonymity, Google and Facebook will not be the subject of Constitutional scrutiny. This means they will still get to decide themselves about whether the need to promote open public discourse (and obtain marketing data) outweighs the need to give anonymous online protection to vulnerable groups like dissidents and gay teenagers.

Until the companies or Congress weigh in, perhaps the last word is best left to Emily Dickinson, one of America’s greatest poets who chose to remain anonymous her entire life:

I’m nobody! Who are you?
Are you nobody, too?
Then there’s a pair of us — don’t tell!
They’d banish us, you know.

How dreary to be somebody!
How public, like a frog
To tell your name the livelong day
To an admiring bog!

German patent owner IPCom says that its decided to enforce an injunction on HTC devices, which include both smartphones and tablets, running on both the Android OS and Windows Phone. The injunction order dates back from 2009 and IPCom today said it wanted it put into effect “in the shorted possible time”, according to a statement from the company (via Reuters). At the time IPCom had won the injunction but then the case went into appeals. HTC, however, withdrew its appeal this week, ahead of a decision next week.

HTC has given us a statement, however, explaining and dismissing these claims:

“On Friday, HTC withdrew its appeal in the German IPCom EP1186189 case. HTC considers that the appeal had become redundant as the German Federal Patents Court had previously held the relevant claim of the patent to be invalid.”

Effectively, reading between the lines of that statement, HTC has withdrawn its appeal because there is no longer of the injunction getting enforced. Or that is their belief, at least.

This is just one of the many cases that IPCom has brought against smartphone vendors in the last several years.

IPCom also filed a similar case against HTC in the UK in June, and had also filed a similar case against Nokia (NYSE: NOK) years before. IPCom had won that hearing as well — although Nokia then ultimately got the decision in its favor in a court of appeals.

This is a crucial time of year to have devices on sale, so it’s likely that HTC would not be taking the risk of dropping its appeal if it had not had good reason to think it would be successful in getting the injunction thrown out. Next week should reveal the outcome more definitively.

The news comes in the same weeks that HTC has seen a setback in a patent case in the U.S. between Apple (NSDQ: AAPL) and S3 Graphics, a company it had been hoping to acquire for its patent portfolio, although now it is re-evaluating that buy. The company this week also issued a statement revising down its earnings forecasts for the next quarter to be flat. The two events have given the company’s stock a knock, even though the company is currently the leading smartphone maker in some of the biggest markets in the world such as the U.S. and the UK.

In a case heard today in an appeals court in Sydney, at least two of the judges made comments that at least make it sound like they were giving Samsung a bit more credit, and casting a bit of doubt on the original decision made by Justice Annabelle Bennett to prohibit Samsung from selling its tablet in the country.

Federal Court Justice Lindsay Foster called Justice Bennett’s ruling “terribly fair to Apple and not terribly fair to Samsung.” (via Bloomberg)

Meanwhile, another judge on the panel of three, Justice John Dowsett, said Apple’s arguments for an injunction were “very speculative.” Apple had claimed that it needed the injunction because Samsung would otherwise get an unfair advantage in the market with its portfolio of phones and tablets, and that it would have been impossible to track those sales in the market to claim damages after the fact.

Does that sound like it might be an overstatement by Apple? Well, it’s not the only one doing some serious posturing:

Samsung has been arguing that if it cannot get enough time to sell the product before the new year, it may have to scrap the launch of the device in Australia altogether, because technology will have moved along too fast and the device will be outdated by the time the actual case gets heard next year. Considering that the tablet was at the top end of device specifications when it was unveiled, and that the iPad 2 and Kindle, both very much selling strong, are less souped up than the 10.1 Galaxy Tab, that too may be a bit of a stretch of the truth.

Samsung is a significantly bigger player than Apple in the wider mobile world, but when it comes to the area of tablets the iPad from Apple is by far the biggest seller.

Apple originally filed a case against Samsung in April when it accused the Android-based tablet maker of slavishly copying its designs for tablets and smartphones. Apple has taken its case to a number of countries in Europe, the U.S., Asia and Australia. Samsung has been hitting back with patent suits of its own over wireless technology licenses. So far, Apple has managed to get injunctions in Germany and Australia with one overturned in the Netherlands. Apple faces an injunction too in Germany, but over a case concerning Motorola (NYSE: MMI) rather than Samsung.

The appeals judges in Sydney will likely produce a verdict next week.

The PRCA lost an appeal it made to try to fight these payments — so it will need to pay a fee to NLA — but it now has a chance to return to appeal one part of that ruling, concerning a temporary copying exception.

The ruling, from the UK’s Supreme Court, gives the PRCA, which represents a number of the major PR firms in the UK, the right to pursue an appeal at the Supreme Court on the grounds of the temporary copying exemption — although it is not clear yet if it will. We have contacted spokespeople for the PRCA and will update this post with any responses.

Update: The PRCA has now issued a statement, which sounds like it will that the NLA back to court on this issue. From the statement:

“The decision of the Supreme Court to allow the appeal reflects the significant potential ramifications (for society and the economy as a whole) of the Court of Appeal’s ruling on the scope of what is known as the “temporary copies” exception to copyright protection…The scope of the temporary copies exception is fundamental to how the Internet functions and both the PRCA and Meltwater welcome the decision to allow an appeal of the Court of Appeal’s very narrow interpretation.”

Temporary copying of copyright material, using automated technology, is already permitted under European and UK law.

The NLA — which represents eight main national newspaper publishers in the UK — has pointed out today that the PRCA will not be able to challenge two other parts of the original Court of Appeals ruling:
– That newspaper headlines “attract copyright” (hence royalty payments);
– That clients of Meltwater (such as PR agencies and corporate customers) will still need licenses from the NLA to receive copyrighted newspaper web material.

But it is worth watching whether a decision against the NLA over the temporary exemption potentially gets used by Meltwater and the PRCA to push ahead in its attempt to reduce the kinds of fees that the NLA requires them to pay, if not eliminate them altogether.

Important to note that neither the original ruling nor today’s news affects individual users: the NLA license fees are aimed only at commercial media monitoring companies who profit from reproducing these stories in one form or another, and their clients.

The NLA is already collecting such licensing fees from clients who receive paper clippings, and intends to bring the fees it charges those who get online clippings up to the same level as those who get the printed clippings.

The parties are still awaiting ruling from the Copyright Tribunal on final pricing and terms of those NLA web licenses.

Authors should not be held liable for providing links to websites that contain defamatory material, according to the Supreme Court of Canada. The decision is a big win for online publishers. It also marks a shift in how the law weighs competing concerns about reputations and free speech.

The case began three years ago when a politician sued a blogger named Jon Newton for linking to an anonymous, allegedly defamatory article. This morning, the court found that linking is not the same as publishing, and it equated links to paths or “footnotes” that help people navigate the internet.

The decision is significant because of ongoing uncertainty in many countries about how defamation laws apply to the internet. In the print world, a publication is liable if its reprints an article that harms someone’s reputation. The principle can extend to other forms of communications. Indeed, one famous case, cited in today’s decision, found that a man who sat by a road pointing to a sign was liable for defamation.

The case of hyperlinks is a challenge for courts because they can be considered as a form or republishing on one hand, or simply as a direction arrow on the other. The court today took the latter view, saying, “Hyperlinks are, in essence, references, which are fundamentally different from other acts of ‘publication’” and that the opposite conclusion “would seriously restrict the flow of information on the internet and, as a result, freedom of expression.” The court added that authors should not be liable for linking since they have no control over the material to which they link.

A minority of the judges thought the new principle went too far. One of these judges, noting that a link can result in a huge spike in the number of people viewing an article, said that links should be considered in the context of how they are presented.

The case is likely to have ripple effects in other common law countries that are struggling with about how to define online defamation. A court in the United Kingdom, whose notoriously strict defamation laws have given rise to “libel tourism,” last year ruled that links should be considered in deciding whether a Spectator article about an Islamic group was defamatory.

In the United States, the defendant in the Canadian case would likely have been protected by the same law that protects Internet service Providers and web hosts from liability, according to Robert Balin and Jim Rosenfeld, media law experts at Davis Wright Tremaine. “Merely hyperlinking in and of itself would fall within Section 230 immunity,” said Balin.

The story, first reported in the FT, cites unnamed sources that say Joaquin Almunia, the competition commissioner in Brussels, is expected to approve the deal without any remedies, or riders that Microsoft would have to satisfy to prove that it will not be too dominant in the market.

Regulators in the U.S. already approved the deal in June, also without imposing any remedies.

A quick approval in the EU signifies a shift in how Microsoft is viewed by regulators in the region, and perhaps how its dominance (or at least the perception of it) has significantly altered in the new technology landscape.

It was only in 2008 that the EU regulators imposed a record-breaking fine of €899 million ($1.18 billion) on Microsoft, for failure to pay a 2004 penalty of €497 million for antitrust behavior.

At the time, Microsoft had been ordered to make its products more interoperable with those of competitors when it was accused of bundling services like Internet Explorer too closely with its widely-used Windows OS, making it hard for other browsers to get a look in on those users. That fine is still being contested by Microsoft, which presented its most recent appeals in the case back in May.

Ironically, it seems that interoperability is one of the main bones of contention with European companies contesting the deal between Microsoft and Skype. This time around, there are competitors in the area of Internet telephony who are claiming that Skype is too dominant already in the market for these services, does not let them interoperate with its system. Further Microsoft would make it too difficult for Windows users to elect to use other internet telephony services if it bundled Skype into the OS.

Microsoft’s defense has been that Skype is a voluntary service, and it has built up its business by offering the service on multiple platforms — including those powering PCs, Apple’s iOS platform for the iPhone and iPad, and Google’s Android — and will continue to do so. Skype currently has 145 million active monthly users.

Several days ago, the blogger Phil Wolff, on Skype Journal, went through a series of hypothetical remedies that the courts could have required of Microsoft, covering areas like interoperability but also other areas of consumer rights, such as the fact that Skype in its terms of service apparently doesn’t allow users to file class action lawsuits against the company. It also mentions the Skype/Microsoft/Nokia (NYSE: NOK) connection, although Nokia’s diminished power, and the relative paucity of WP7 devices among users, surely make that less of a domination threat.

In any case, the list mostly seems like fairly reasonable run-through of areas where intervention could have been useful, so it will be interesting to see if the regulators pick up on any of them after all.