Think again, Tim

Apparently left-leaning fact-checker extraordinaire and UNSW IT academic Tim Lambert is celebrating April Fool’s day early, and has set up a mirror site of Tim Blair’s blog. But there’s a very real question of just who’s the fool here. Naturally it’s got all TB’s RWDBs huffing and puffing with well-practised conspicuous indignation.

But on this occasion at least, I agree with the Blairites. Tim Lambert has gone too far. He may not be breaching copyright law, because it seems he’s written code that simply points back to Blair’s blog, but it also points to a Haloscan comment box facility that allows anyone to comment on the “Tim Blair” blog without censorship from TB’s “hired muscle” Andrea Harris. Predictably the Haloscan facility is populated with comments from the usual crowd of Howard/Blair haters, mixed with members of the Blair hit squad (justifiably on this occasion) venting their spleens. It makes unpleasant reading, and I really wonder why Lambert has bothered.

It probably seemed like a cute idea to Lambert, subverting Blair’s illiberal commenting regime. Unfortunately, quite apart from the fact that Blair is perfectly entitled to be as illiberal as he likes on his own blog, the “Tim Blair” blog is probably unlawful. It may not breach copyright law, but it probably DOES breach the misleading and deceptive conduct provisions of the Trade Practices Act, and may also amount to the tort of deceit. Blair would be entirely justified in suing Lambert IMO, so it might be better if Lambert backs down first.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Tim Lambert
2022 years ago

I don’t think that people are likely to mistake it for the real Blair blog, but if you can suggest changes that would make this clearer I would like to make them.

Blair provides an RSS feed so I can’t see what the objection could be to repackaging the content.

My real purpose is to see what happens with open comments. Maybe it will prove Andrea Harris right. Let’s see.

Gary
2022 years ago

I going to find a third party to verify if it is possible to do this with out mirroring some of the content.

Jason Soon
Jason Soon
2022 years ago

I agree with Ken. It was a cute idea for the first 10 minutes but Lambert could get into serious poo-poo here.

Nabakov
Nabakov
2022 years ago

Mind you this new Troppo Armadillo mirror site here looks like it could be lotta fun.

Jacques Chester
Jacques Chester
2022 years ago

Ken,

thought that you can other Troppo readers should know that VSU legislation was introduced this morning. The ALSF have said they lobbied on the matter very aggressively, and it looks like they did.

Legislation is here:
http://parlinfoweb.aph.gov.au/piweb/Repository/Legis/Bills/Linked/16030503.pdf

Scott Wickstein
2022 years ago

I do wonder why the Comrades on the left have this fixation, almost amounting to an obsession, with Blair. Most of what he blogs about amounts to holding some of the dafter statements of ‘progressives’ like Margo to well-deserved ridicule, and taking the mickey out of political figures and terrorists.

If he’s wrong, why waste your effort? If he’s not wrong…

Evil Pundit
2022 years ago

Lefties are obsessed with Blair because he pokes fun at their pretensions with a deadly accurate wit.

Moreover, they’re jealous of his large audience.

Since the Left doesn’t have a Tim Blair of its own, they’ve resorted to a cargo-cult like copy.

Nabakov
Nabakov
2022 years ago

Well I think it’s a fun prank, especially as little tim, who prides himself on being a bit of a gadfly, seems rather discombobulated by it.

“”

Pater Facio
2022 years ago

The cyclones in Australia’s north appear to have disapated what little sense of humour was left particularly in the land of Armadillo.

Mork
Mork
2022 years ago

Jeez, Ken, lighten up. It’s just a bit of fun.

I think there might be some arguments around the copyright issues, but there’s no way in hell it’s misleading or deceptive … eveyone who’s gone there has gone via a link that made it perfectly clear what it was, and ther’s no way that you’re going to accidentally type the URL into your browser.

Plus, section 52 deals with M&D conduct “in trade or commerce”. I think you’d struggle to show that this is either.

Gary
2022 years ago

Just remember the time when some idiot copied Tim Dunlop’s or was John Queens work. And RWDB’s such as yobbo condemned it. Well this is a lesson in that a fare go can not be expected from some that are excusing it this time.

Ken Parish
Ken Parish
2022 years ago

Mork

Blair is clearly engaged in trade and commerce, both directly (via his paypal button) and by virtue of the fact that his blog is a seamless part of his work as a journalist. The misleading and deceptive aspect may be somewhat lessened now Lambert has altered the banner to read “this is not Tim Blair’s blog”. Previously it was identical. But there’s still the risk of misleading by readers who navigate to the site via Google (once it catches up with the mirror site’s existence). And I’m not completely convinced that Lambert has avoided breaching Blair’s copyright, a cause of action that doesn’t require proof of damage in any event.

I don’t know why anyone should “lighten up” in the face of what appears to be blatantly unlawful activity. You may reckon it’s funny. I don’t. Moreover, the “do unto others …” maxim is pretty relevant here IMO.

Evil Pundit
2022 years ago

Since the content is loaded from Tim Blair’s server, I think it could be argued that Lambert’s site is a theft of Blair’s resources.

Buzz
Buzz
2022 years ago

Seems an interesting use of an academic’s time and the University’s resource as well.

It’s hardly likely to engender sympathy should these institutions receive financial cutbacks from the public purse.

Robert
2022 years ago

EP — I had to complain about Tim loading an image directly off my server once. It’s not a crime, it’s just rude.

Rex
Rex
2022 years ago

“Since the content is loaded from Tim Blair’s server, I think it could be argued that Lambert’s site is a theft of Blair’s resources”

That’d make Google in breach of copyright of every website on the planet.

Google cache’s content, It modifies content (converts PDFs to HTML), it uses other people content in order to generate its own income, (Google search terms).

What Tim has done is take publicly available material and enhanced it, y putting his own spin on it. Blair does this all the time.

Jason Soon
Jason Soon
2022 years ago

“Seems an interesting use of an academic’s time and the University’s resource as well.”

It really is amusing to see Buzz and his comrades pick up on this point and run with it for all it’s worth. Did RWDBs disproportionallu fail uni or something? How do you know Ken isn’t doing the same thing? Or Kim Weatherall. Unless your boss is an anal retentive or you have a job which demands a constant attention (e.g. IT help desk) I don’t see what the big deal is with posting blogs during nominal ‘work time’. If you are required to put in a min 8 hours a day and you decide to take breaks during the day and work on a blog and in return break later, and this has no impact on the timeliness of your work, there are no ethical issues.

Caz
Caz
2022 years ago

I’m a little rusty at this, it was about 8 years ago that I studied copyright law as a unit in my uni degree. But I seem to recall one of the ways copyright could be breached was via ‘passing off’ – which this appears to do, mirrored site or not. A Google cache at least makes it very clear that its a Google cache.

Until Lambert whacked up that little disclaimer, the average punter might not have known they weren’t visiting Blair’s site.

gilmae
2022 years ago

It’s a pointless stunt. If Lambert is genuine about just wanting to see what happens with open comments, he could have had a raw site straight from the rss feed; he didn’t need to copy the layout wholesale. He could have linked to individual post archive pages on Blair’s site, perhaps with limited excerpts on his own site – full text after the jump. All he really needed was the original title of the post, a link to the original post and his own comments page.

Instead he was lazy – I’ll give him the benefit of the doubt – and copied the entire site. He wouldn’t *need* the disclaimer if he hadn’t copied the layout.

Roll it back, Lambert. You’re losing credibility.

Mork
Mork
2022 years ago

I don’t know why anyone should “lighten up” in the face of what appears to be blatantly unlawful activity.

Jeez, Ken, are you going to tell me that you’ve never had fun while doing something that was illegal?

Rex
Rex
2022 years ago

It’s all academic now!. Site’s been pulled!

ab
ab
2022 years ago

Ken,

Mork appears to be right in this instance. Whether or not Tim Blair is engaged in trade or commerce is irrelevant, I would have thought. If you’re saying that Tim Lambert’s conduct is misleading or deceptive conduct, for the purposes of the TPA, the relevant issue is probably going to be whether Tim Lambert is engaged in trade or commerce. This is at least arguable, in that the specific relevant conduct (ie. the linking and the fiddling with the comments) has to be ‘in trade or commerce’, not just conduct by someone who may engage in trade or commerce in another capacity (eg. a businessperson can be as dishonest as he/she likes to his family, without fear of the TPA/FTA regimes). Is what Tim Lambert has done sufficiently connected with his trade/commerce activities? It’s arguable.

Evil Pundit,

You talk about ‘resources’. That’s fine. I think you’ll need to be more specific, though. What property of Tim Blair’s is Tim Lambert misappropriating? I wouldn’t have thought that Tim Blair owns his bandwidth; bandwidth is something that someone else provides that Tim Blair pays for. Now, Tim Blair may be incurring further costs, but he may also be generating extra revenue by way of further advertisement views (I have absolutely no idea how internet advertising works, so feel free to correct me on this one). Either way, I’m struggling to see how anything has been ‘stolen’.

Copyright is a different matter, but again, it may be problematic because it seems that no reproduction of Tim Blair’s site has been made (however, query the whole ‘derivative works’ angle, which I have no idea about.)

Cheers

Mark U
Mark U
2022 years ago

Why would Tim Blair’s real site have a link to the mirror site if he was genuinley worried about copyright? A bit like Michael Jackson setting up a stall outside Neverland to sell bootleg copies of Thriller.

If there really was a copyright issue, could Ken be charged with aiding and abetting because he also provided a link?

Ken Parish
Ken Parish
2022 years ago

Mark

Blair was protesting about his copyright being breached, both on his own site and by writing and phoning Lambert. What would you expect him to do? Are you really suggesting he wasn’t sincere in his protests? I think your prejudices are showing. In any event, the protests worked, because the mirror site seems to have been taken down.

BTW I remain of the view that it may well have been both a TPA breach and the tort of deceit as well as a copyright breach, not to mention “passing off” as Caz mentioned. The whole exercise was legally problematic in each of these respects. I’m not saying that all grounds would necessarily have succeeded, but you couldn’t say they were flimsy either. I suspect TL was told by UNSW in no uncertain terms to get the material off their servers because of the legal risks.

Evil Pundit
2022 years ago

Lambert was stealing the resources of storage and bandwidth used to produce the majority of the site. It wasn’t a mirror, like Google, but depended on material served from timblair.net for its primary content.

I am not a lawyer, but it seems to me that appropriating Tim Blair’s storage space and bandwidth, for which he has paid, constitutes a theft.

Tim Lambert
2022 years ago

Tim Blair called my head of school several times to complain about my proxy (the only thing actually on the UNSW server was a 32 line perl script). My HoS checked with UNSW’s lawyer who reckoned that there wasn’t anything wrong with what I was doing, but would prefer that I hosted it off-campus.

Meanwhile, drscroogemcduck posted an elegant bookmarklet that lets you add the Haloscan links yourself, which I think is a nice solution that might make everyone happy. (Click on my name for the script — I think you need Firefox to run it.)

I also talked to Tim Blair who seemed a little upset, mentioning “Packer lawyers”. I asked him if he would mind if I took the RSS feed and added the comments to that, but he didn’t know what an RSS feed was or that he had one so we didn’t get very far.

ab
ab
2022 years ago

Ken/Evil Pundit,

Fair enough; it’s all arguable.

On another, related, point: what is the copyright status of copying and pasting large slabs of someone’s else’s text and commenting on it (which seems to be almost all that Tim Blair does)? Presumably there is some defence to copyright infringment in relation to fair comment (or some other similar concept)? If that is the case, is what Tim Lambert has done (ie. taking content and commenting on it, and providing a facitilty for others to comment) substantially different from what Tim Blair does, leaving aside the stealing bandwidth issue that Evil Pundit raises?

Cheers

Zoe
Zoe
2022 years ago

At least there hasn’t been any sperm theft.

Gary
2022 years ago

I just reread my comment above and have to apologize to John Quiggin for miss spelling his name. It was not deliberate and drawback from having to rely on spell check.

Reminding me of the times when I leave out the ‘r’ in my name.

ab
ab
2022 years ago

Prove that there hasn’t been.

ab
ab
2022 years ago

Who will you apologise to for putting a space and three Ss in ‘misspelling’?

Gary
2022 years ago

“Who will you apologise to for putting a space and three Ss in ‘misspelling’?”

Not me ;)

Buzz
Buzz
2022 years ago

Jason, if it’s your lunchtime and your server, then sure, it’s no problem whatsoever. But I doubt that’s the case here. Certainly the server is not his but rather his employers. Presumably you must be self-employed, otherwise feel free to forward your comments to your boss.

Jason Soon
Jason Soon
2022 years ago

“Jason, if it’s your lunchtime and your server, then sure, it’s no problem whatsoever. But I doubt that’s the case here. Certainly the server is not his but rather his employers. Presumably you must be self-employed, otherwise feel free to forward your comments to your boss.”

Firstly Tim L’s server didn’t actually have much to do with this as I understand. Some redirection jig but I’m not in IT so I won’t say much on this. Secondly what counts as a lunchtime? If I choose to work late because I do blogs through the day and it doesn’t interfere with my deadlines, etc, whose business is it? In a service industry all that matters is how many hours you’ve entered into your timesheets at the end of the week and what your output is. Academia is basically a service industry.
Thirdly my boss knows all about my blogging activities and encourages. Not all bosses are arseholes, maybe yours is.

Evil Pundit
2022 years ago

If sperm theft was involved, you’d *really* be in trouble.

Ken Parish
Ken Parish
2022 years ago

ab

Yes there is a copyright defence for “fair use” or “fair dealing” with someone else’s work. You can use excerpts/extracts from it for the purpose of education, criticism, reportage etc. But copying the whole of the work, as the Lambert mirror (or whatever it was) did, could not possibly be covered by a fair dealing defence.

Thus, if there was a copying (or purported authorising of copying), it was a breach. I’m not sure exactly what Tim Lambert’s script did in a technical sense, so I’m not sure whether copying was involved. It may be that, even if all the script did was to instruct the end user’s computer to copy and reproduce Blair’s blog in an altered and unauthorised manner on the end user’s PC, that would still be a breach. But I’m getting well outside my area of legal expertise now, and I also don’t know enough of the facts (especially technologically) to form a definitive view. However, I’d be very surprised if UNSW’s lawyer really did unequivocally give it a clean bill of health (as Tim L seems to be saying). I certainly would have been MUCH more cautious than that if I’d been advising.

Buzz
Buzz
2022 years ago

Well in this case Jason, the ultimate employer is the Australian taxpayer. Unlike you perhaps, I think if you would put this proposition to them, they wouldn’t be so sympathetic. University administrators might start thinking the same thing. We’ll see. So far blogging during academic hours is very much under the radar for most of the public. It may not remain that way.

Mork
Mork
2022 years ago

*I certainly would have been MUCH more cautious than that if I’d been advising.*

I’m not sure I would be. Without economic loss on Tim B’s part or gain on Tim L’s, the worst possible legal remedy would be an injunction to take it down.

So what do you have to lose by waiting at least for a formal request, if not someone actually taking you to court? The only real danger you face is a costs order if you were to contest the action, but you’d probably decide the stakes were getting a little high before you ran that risk.

drscroogemcduck
drscroogemcduck
2022 years ago

Jason: I think TimL’s script downloaded TimB’s site then passed it through a filter that would of matched the comment and trackback links and replaced them with haloscan links. So it was much more than a redirect.

Mark U
Mark U
2022 years ago

Ken

I am not sure what prejudice I was meant to be showing in my earlier comment. All I was doing was puzzling over is why he put a LIVE link to the mirror site, making it easy for people to go there. Hence my analogy.

.............................
.............................
2022 years ago

Tim Lamburt would be well advised to keep an eye over his shoulder. Sometimes the odds get even.

Jason Soon
Jason Soon
2022 years ago

“So far blogging during academic hours is very much under the radar for most of the public. It may not remain that way”

Buzz, again what is it with these antiquated notions like ‘lunch hour’ and ‘academic hours’? Sure, if he’s turning up late to class or not seeing a student who’s come in for consultation because he’s blogging or not marking papers in time because he’s blogging, that’s a concern but otherwise … I know you’ll be shocked to hear this but lots of people, even in the private sector, do non-work reading on the Net during office hours. Hell, some people even take a crap during office hours. So Tim L is blogging instead. But as long as a crane isn’t going to go astray when they’re doing this and they put in extra hours later in the day or week as compensation to put in their minimum weekly hours, it’s of no one’s concern. Do you happen to know any actual academics, Buzz? I do. When there are papers to mark, there are papers to mark and no one really gives a crap about ‘designated office hours’ aside from teaching and seeing students – something that may have to be done is done, irrespective of what time it’s done and that’s the only thing that matters. My academic friend would start work at 5 am to mark papers and sometimes work through the night to prepare lectures the next day – like any other job.

Mark Bahnisch
2022 years ago

“Well in this case Jason, the ultimate employer is the Australian taxpayer.”

Nope. The good old Australian taxpayer only stumps up about 40% of the cost of most universities these days. The rest of the income comes from research grants, business and students.

Universities are corporate bodies incorporated under state Acts.

Mark Bahnisch
2022 years ago

I’d make the further point that one of the duties QUT requires of its employees is “community service”. This explicitly includes writing op/ed pieces for the papers, or being available to comment to journos in your area of expertise – the idea is that the University encourages its academic staff to interface with the broader public. I’m sure blogging would fall under that heading as well.

James Farrell
James Farrell
2022 years ago

Please let me know exactly which are the ‘academic hours’, Buzz, so I’ll know when to stop working. Depending on your determination, I might have to stop taking evening classes and marking essays and exams on weekends. Of course it will be tough for the students if they don’t have a tutor or get their results on time, but I sure don’t want to be in the wrong place when that radar you mentioned comes my way. And please also cc. my VC, so she’ll know what hours she can expect me to work.

Jason, why would someone with your gift for the pithy riposte waste so many words rebutting such nonsense?

Buzz
Buzz
2022 years ago

I’m completely sympathetic to your points of view. I too have been paid by the year rather than by the hour. And I’d love to see a geologist blogging about rocks, or even a political scientist blogging about politics. You’re dead right, it would be the perfect interface between the public and academics. But if you think the public is going to think it’s useful for an academic such as Mr Lambert to use his ‘on-campus time’ and the University’s resources in such a way, I think you’d be mistaken. The perception and probably the reality would be that he’s wasting taxpayers money. It may even ruin it for legitimate purposes such as you describe.

Dress it up however you like, but such behaviour is it going to endear the public to spend any more of their tax dollars.

Louis Hissink
Louis Hissink
2022 years ago

Heavens to murgatroyd Ken,

Even I have been affected by Andrea’s policies on Tim’s site. Youb know the rules, and act accordingly. Unless you believe you are above any law or custom.

I can speak with some authority about the left because most of my family, alive and recently decedent, are left or excessive left in view (one nephew is mainstream). And my best friends are card carrying members of the ALP. (but we never discuss politics but I know more of what goes on in the ALP than most, and honour confidences too).

What is it with you socialists that drives to you hate someone?

Margo Kingston, for example, pointedly stresses she does nothing to incite hatred but then publicly asserts she is a Howard Hater. Is she of two minds on the subject?

Then a sibling announced a hatred of President Bush – why? – and I personally experienced a reaction of family seeing Howard on television which elicited another visceral display of hatred – almost as if they were spitting cobras (animals I have passing familiarity with in Durban 20 years ago).

What is it with you on the collective side that make you so nasty?

cs
cs
2022 years ago

“Then a sibling announced a hatred of President Bush – why?”

Well Louis, it’s a long story …

What’s your hang-up with hatred? Did somebody hate you too young? You a catholic or something? Get out there son, and dig the smell a fresh hatred in the morning.

anthony
2022 years ago

Y’know if I were Jet and I got covered by AC/DC, I’d be pretty happy about it.

gilmae
2022 years ago

There is also a slightly more useful version of the bookmarklet at

Requires Firefox + greasemonkey