A few weeks ago, I reported that ContestedFooty.com had received a cease & desist letter from the AFL over its use of original images depicting AFL players in the context of reporting and providing commentary on AFL news and events.

We were able to put the administrators of ContestedFooty.com in touch with a local solicitor who was willing to donate the time to examine the AFL's claims and demands. I am now happy to report that ContestedFooty.com has advised the AFL that they will continue to use images relating to Australian Rules Football in their independent coverage of the sport.

This is a very good outcome from our perspective - ContestedFooty provide valuable independent reporting and commentary on a sport close to the hearts of many Australians, and their ability to do so would be significantly hampered if they were required to seek and agree to licensing terms from the AFL. We are certainly happy that ContestedFooty have been able to examine the AFL's claims and ensure that they can continue to operate without infringing copyright, trademark, or passing off laws.

However, this case shows the difficulty inherent in the complexity of Australian law, and the potential for abuse by rights holders. We are extremely disappointed that the AFL sought to suppress news and commentary in the way that it did by issuing legal threats against the operators of an independent blog. We believe that this is an example of over-reaching that the system allows, primarily due to a lack of clarity as to what exactly users of trademarks and copyright material may do without a licence. The unfortunate effect of this lack of clarity is that independent publishers are forced with a tough decision - to comply with the demands without further examination, or to seek costly legal advice. Because the cost of legal advice for a blogger is often prohibitive, we are very concerned that rights holders are often able to make overly broad demands. Luckily, in this case, the bloggers were fortunate enough to be able to obtain pro bono advice from an experienced solicitor - but not all such stories end so well.

I would like to reiterate our support for the team at ContestedFooty, and wish them all the best in continuing to provide high quality independent coverage of Australian Rules Football.

2 comments

  1. PRO BONO : latin, meaning "for the public good"

    So the lawyered-up big guns of AFL are leaning on the little guys?

    Surprise!

    Were it not for the legal tradition of Pro Bono, Law would truly be on the side of only the rich.

    Organisations seeking to coerce other parties upon points of law need to be punished if they do not have a case - along the lines of a vexatious or malicious suit.
    How many legal proceedings were discontinued because noone had the money to pay the lawyers? How many of those "no contest" decisions were actually in the right, if they had only the funds to get a competant legal mind applied to it?

    The law is too complex
    If it were simpler maybe the average person would already know where they stand without having to re-mortgage.

    Sure lawyers are expensive... If I had to spend an extra decade or so in school to do my job I would demand decent pay too.

    long term solution: Simplify Australian Law so that it can be taught in secondary school, so that every educated adult in the country has an understanding of the rules they must follow.
    As I understand it, not knowing about a particular law or statute that is applicable in your situation, is no excuse for not following it.

    THATS RIGHT YOU COULD BE BREAKING THE LAW RIGHT NOW AND BE PUNISHED DESPITE ACTING IN GOOD FAITH AND WITH NO KNOWLEDGE OF YOUR WRONGDOING.

    Doesnt seem very fair to me, although I can see that it would be hard to Prove you DIDNT know about the laws you were breaking.
    That kind of excuse/diversion only works for politicians.

    Short Term solution: encourage the spirit of probono, and maybe of the 'no win, no pay' type of service.

    Testing a point of law should be done for the common good - so all can benefit from a more certain, clear and professionally debated decision.
    As decisions (especially precedents) clarify the law for us all, perhaps the common good of a decision needs to be weighed against the court costs.
    If a decision is important enough to the rest of us, the individuals involved maybe should not have to pay all the costs as it improves the law for everyone.

    no-win no-pay implies a certain amount of money on the line - this only seems to be prevalent in the personal injury and medical negligence arenas, but I'm sure it could be workable elsewhere - most law firms have financial controllers with enough nous to come up with a figure of X hundred dollars an hour for services based on win/loss ratios and other actuarial thingies that leads to the same net income for the providers of legal services....

    BIG GUY: I don't like you doing what you are doing, so I will tell you that you are doing wrong and you will stop.
    LITTLE GUY: I am not doing anything wrong. I will not stop.
    BIG GUY: I say you are doing something wrong. If you disagree with me then we shall go to court over it.
    LITTLE GUY: I cannot afford to go to court over it, even though I am right.
    BIG GUY: So you see now? You will stop doing what I do not want you to.
    LITTLE GUY: But I am right!
    BIG GUY: That has nothing to do with it. You are Poor, and will do as I tell you to....

    OK this post has gone on enough......
    But a big THANK YOU to EFA and that Conscience-wielding lawyer.

    Comment by Joe on 29 June 2009 at 3:32 am
  2. One of my students in Australia said to me:

    Comment by federal criminal def on 31 August 2009 at 12:36 am