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Duke, A; Richardson, M --- "Music Markets and Bad Actors in Copyright and Competition Law" [2008] UMelbLRS 5

Last Updated: 30 June 2009

Music Markets and Bad Actors in Copyright and Competition Law

Arlen Duke[∗] and Megan Richardson[∗∗]

Abstract

The economically focussed understandings of intellectual property and competition law has generally resulted in courts adopting a welfarist approach to provide a policy frame for understanding and elaborating legal standards of liability. Under the welfarist approach, attention is focussed on the effects of conduct and questions of industry economics and consumer, or user, welfare rather than the intent of the alleged wrongdoer. However, this situation may be changing. In a recent copyright infringement case and a recent case concerning exclusive dealing in the music industry, liability was imposed on the basis of the ‘bad behaviour’ of the defendant. That the cases are both to do with music is striking. It is possible that the subtle and evolving characteristics of music markets mean that a disciplined focus on industry economics and consumer or user welfare still eludes the courts, leading them to fall back on more intuitive moralistic answers. Although some are concerned about such moralistic reasoning, we argue that moralistic judgments may point to more sophisticated understandings of welfare effects and that combining moralistic and welfarist approaches should generally lead to results that are both socially beneficial and morally desirable.

Introduction

One thing copyright and competition law scholarship have in common is that there is no consensus as to appropriate philosophy. Economists tend to prefer to focus on welfare effects. Lawyers are traditionally inclined to adopt a more moralistic approach. However, in latter years many lawyers have become more like economists in treating welfare as the philosophical yardstick of legal policy. Unfortunately, welfarism has a tendency to crowd out moralism. For instance, in a classic statement of the welfarist approach, Justice Oliver Wendall Holmes in The Path of the Law,[1] spoke of ‘the danger of confounding morality with law, and the trap which legal language lays for us on that side of our way’. Such ways of thinking set the scene for modern law and economics, especially that of the ‘Chicago School’ variety, which rejects rather than embraces apparently competing ways of thinking about law.[2] More recently, (ex-University of Chicago) lawyer-economist Tim Wu of Columbia Law School has criticised the ‘bad actor’ approach to copyright infringement as ‘punish[ing] alleged wrongdoers based on malicious behavior of the suspect and the prospect of harm to favored sectors of the economy, like small businesses (in antitrust) or the entertainment industries (in copyright)’, adding that a ‘welfarist’ approach ‘calls for judges generally to ignore intent or “bad behavior” in exchange for a disciplined focus on questions of industry economics and consumer, or user, welfare’.[3]

We differ slightly from Professor Wu on matters of definition. For instance, in our view, a truly moralistic approach is not designed to favour certain sectors of the economy but is rather premised on a moral stance (which may not be articulated) – for example, that a person should not be used as a means to another’s ends,[4] or should be entitled to enjoy the fruits of labour,[5] or should be free to pursue their own good in their own way, so long as they do not cause harm to others.[6] To be sure, a welfarist approach can also be thought of as a ‘moral’ approach in arguing that ‘good’ behavior is that which produces the greatest happiness for the greatest number, as John Stuart Mill has argued.[7] But here we are talking about a moral as distinct from a welfarist approach. Then, when it comes to a welfarist approach, we point out that this may not be directly concerned with addressing the welfare effects of particular conduct on a case by case basis (‘act utilitarianism’) since decision-makers may prefer to focus on compliance with rules that are thought or assumed to be designed with welfare in mind (‘rule utilitarianism’)[8] – as indeed common law judges often do.[9] That said, we agree with Wu’s basic propositions (1) that a moral approach is concerned with behaviour while a welfarist approach is concerned with effects, or outcomes, and (2) that economically, and perhaps legally, speaking the second is more easily justified. However, our contention is that there is a role for a moralistic approach within the rubric of copyright and competition law.

The contention may be seen as heretical in the competition law context. Since at least the mid 1980s, a welfarist approach has generally been adopted by courts to provide a policy frame for understanding and elaborating the legal standards for determining liability in competition law cases. Cases decided as a matter of competition law, which require explicit consideration to be given to policy, typically proceed on the assumption that a welfarist approach is appropriate because, by examining the effects of conduct, attention is focused on what is said to be the predominant (and for some, the only) goal of competition law, namely the achievement of efficiencies through the promotion of competitive marketplaces. The position is clearly evident in Queensland Wire v BHP,[10] where Mason CJ and Wilson J explicitly rejected the notion that ‘take advantage’ in the tort of misuse of market power in s 46 of the Trade Practices Act 1974 (Cth) entailed a moral judgment, elaborating their position in the following statement:[11]

If the purpose of s 46 were the economic well-being of competitors, then ... [an] implication of intent might well be appropriate ... But the object of s 46 is to protect the interests of consumers, the operation of the section being predicated on the assumption that competition is a means to that end. Competition by its very nature is deliberate and ruthless. Competitors jockey for sales, the more effective competitors injuring the less effective by taking sales away. Competitors almost always try to ‘injure’ each other in this way. This competition has never been a tort ... and these injuries are the inevitable consequence of the competition s 46 is designed to foster ... The question is simply whether a firm with a substantial degree of market power has used that power for a purpose proscribed in the section, thereby undermining competition, and the addition of a hostile intent inquiry would be superfluous and confusing.

In copyright cases, although the policy reasoning may be less elaborated, courts also seem to have broadly accepted that intellectual property rights are instrumental rights that exist in order to overcome market failure – providing incentives for socially productive innovation (balanced by limitations which allow breathing space for valuable dissemination). This was indeed quite explicitly stated in Desktop Marketing Pty Ltd v Telstra,[12] concerning the originality standard to be applied to the question of the subsistence of copyright in a telephone directory. In this case, the three full Federal Court judges referred in various ways to copyright subsisting in works as protecting them ‘not for their own sake, but because of an underlying policy of protecting that which had gone into the production of them’.[13] Sackville J went as far as to say that ‘[t]he danger in refusing copyright protection to an industrious compilation is that a potential compiler will be deprived of the incentive to undertake work that may prove to be of great value’[14] (disagreeing with the US Supreme Court in Feist Publications Inc v Rural Telephone Service Co Inc[15] that an optimal balance between incentives for innovation and dissemination requires a higher standard of originality and preferring the reasoning of Robert Denicola that ‘effort of authorship can be effectively encouraged and rewarded only by linking the existence and extent of protection to the total labor of production’).[16]

Moreover, the welfarist approach accords with the apparent goals of the modern legislature as interpreted and construed by those responsible for legislative reform in both the competition and copyright law fields. In particular, even though there is no explicit reference to economic efficiency in the purpose provision[17] or the various prohibitions provisions contained in the Trade Practices Act,[18] the central role of economics seems to be well-entrenched in Australian competition law. For example, the Hilmer Committee’s Report on National Competition Policy dismissed the suggestion that other social goals (such as protecting particular competitors and distributive concerns) underpin competition law noting that ‘[i]t is possible for governments to achieve objectives of these kinds in ways that are less injurious to competition’.[19] The drafters of the Dawson Committee Report on the Competition Provisions of the Trade Practices Act were clearly also of the opinion that these provisions had the promotion of efficiency as their exclusive goal and did not even feel the need to raise and dismiss other possible social goals.[20]

Copyright law (and intellectual property law more generally) has similarly been identified with economic purposes in recent decades.[21] This is especially apparent in discussions of the interface between intellectual property laws and competition law. For instance, in the Ergas Report on Intellectual Property Legislation Under the Competition Principles Agreement,[22] which began with a comparison of the economic purposes of intellectual property and competition laws, the conclusion was reached that ‘[i]ntellectual property laws on the one hand and competition policy on the other are ... largely complementary’, the first serving to ‘promote innovation, which is a key form of competition’ and the second ‘keeping markets open and effective’ and so preserving ‘the primary source of the pressure to innovate and to diffuse innovations’.[23] Further, to the extent that intellectual property laws might be seen as potentially overly-inhibiting information diffusion, the problem was characterised as an economic one to be solved by the efficient design of intellectual property laws so as to provide an optimal balance between incentives to invest in innovation and efficient diffusion of innovation.[24]

Such economically focused understandings of intellectual property and competition law have not always been universally accepted. As a relative latecomer to the introduction of an effective competition regime, Australia has seen little of the longer history.[25] However, over the years, a range of policy goals have been said to underpin the United States competition laws on which the Trade Practices Act was based.[26] For instance, Robert Lande suggests that US competition laws were passed, at least originally, to further distributive rather than efficiency goals.[27] Sociopolitical rationales, such as the fear of the political power that flows from aggregations of wealth have been advanced as alternative reasons.[28] Rationales that fit within Wu’s definition of moralism, such as a desire to protect small business, have also been said to underpin antitrust laws.[29] Similarly, vis-à-vis copyright law, before the 1980s the language of the natural rights of a person to the fruits of their labour was a respectable form of discourse in Australian circles.[30] Nevertheless, such non-economic rationales appear to have been swept away in competition law by the end of the 1970s and it seems fair to suggest that the Chicago School’s powerful influence in those years caused this refocusing from the social, political and moralistic rationalisations of earlier times in favour of a welfarist approach that focuses primarily if not entirely on economic efficiency.[31] Moreover, with the rise of the Chicago School in the 1980s, whose attitude to law and economics was that all of law (and especially intellectual property law) should potentially be subject to the rigorous discipline of economics, copyright law has also come to be seen as a field that is at least significantly economic, even in Australia. It may be that the shift to welfarism in this period reflected a greater understanding of economic concepts[32] and concomitantly a greater ability for decision-makers to engage in a ‘disciplined focus on questions of industry economics and consumer, or user, welfare’, as Wu posits. But the compelling intellectual force and simple, or simplistic, logic of the Chicago School arguments for subjecting all of the law to the discipline of economics should not be underestimated.[33]

Nevertheless, in the more complex and conflicted world of the 21st century, the situation may be changing again. As Wu points out,[34] the bad actor approach featured in the US Supreme Court’s decision in MGM Studios, Inc v Grokster, Ltd,[35] where ‘inducement’ of copyright infringements by online music sharers was propounded as a common law basis of liability for a music file-sharing service which encouraged and facilitated vast amounts of infringements for its own commercial ends.[36] In the discussion below, we observe a similar focus on bad behaviour in Universal Music v Sharman License Holdings Ltd,[37] the Australian music file-sharing case[38] which was decided under the ‘authorisation’ language of the Copyright Act 1968 (Cth). Moreover, in Universal Music v Australian Competition and Consumer Commission,[39] a case decided under the ‘exclusive dealing’ provisions of the Trade Practices Act, the bad behaviour of the defendant music companies (rather than any likely effect on competition) was the basis on which the Full Federal Court ultimately held that the music companies had breached the Act. That the cases are both to do with music is striking. Is music less susceptible to a simple welfarist analysis than other creative forms? Or is it that the subtle and evolving characteristics of music markets means that a disciplined focus on industry economics and consumer or user welfare still eludes the courts, leading them to fall back on more intuitive moralistic answers? As lawyer-economists, we find both plausible and suggest the solution may be found in a dualist approach which searches for areas of common ground, allowing moralistic judgments to point to more sophisticated understandings of welfare effects. As Mason CJ and Wilson J observed in passing in Queensland Wire, ‘[i]n the ordinary tort case, a tortfeasor's intent may well be relevant to his dangerousness – if he intends to hurt another he is more likely to cause injury than if he is not trying to hurt the other’.[40] In these situations, at least, we argue, combining moralistic and welfarist approaches should generally lead to results that are both socially beneficial and morally desirable.

Universal Music

In Universal Music v ACCC (from now on Universal Music)[41] Universal Music and Warner Music were held to have engaged in exclusive dealing in breach of s 47 of the Trade Practices Act[42] on the basis that they had a purpose of substantially lessening competition in the wholesale recorded music market when they threatened to refuse (and in a few instances actually refused) to supply their products to retailers who engaged in parallel importing of ‘non-infringing’ copies of sound recordings (which were generally cheaper than or different in other respects from those available through their lists), as permitted by the Copyright Act.[43] Unlike Hill J at first instance,[44] the full Federal Court was reluctant to conclude on the evidence before it that the music companies’ conduct had, or would be likely to have had, the effect of substantially lessening competition as alternatively provided for in s 47(10). In reaching this conclusion the Court noted that the Australian Competition and Consumer Commission’s inability to demonstrate this could have been because the Commission nipped the conduct in the bud and because retailers exhibited more fortitude than Warner expected.[45] Further, it stressed that it would be wrong to assume (as the trial judge had) that the conduct would continue indefinitely into the future.[46] The Court also dismissed a claim of misuse of market power under s 46 Trade Practices Act on the basis that Warner and Universal, which together controlled less than 35% of the market for wholesale recorded music and apparently priced their products on a competitive basis, did not have substantial market power as required by that section.[47] So in the end it came down to the record companies’ apparent purpose of coercing retailers into refusing to deal with parallel importers by threatening to close off supply of their music products and in four cases actually closing off supply of music products.[48] This element of coercion was said to come from the fact that retailers required access to recordings by Australian artists (which were often not produced by overseas record companies) and back catalogues (which parallel importers were unable to provide in a timely fashion). Furthermore, the record companies had considerable control over particular works because they were produced under their label and the majority of consumers were reluctant to accept any substitutes. As the Court summarised it:[49]

[T]he purpose of Universal and Warner was to discourage retailers from importing or acquiring non-infringing CDs of titles in the Universal and Warner catalogue’s respectively. If the purpose had been achieved, it would have had a substantial effect on competition in the market. The fact that the purpose was not achieved is no defence.

A curious feature of the reasoning in the case is the lack of any reference to the legislator’s motivation behind s 47. Section 47(10) proscribes exclusive dealing for an anticompetitive purpose but before the Universal Music case this prohibition had not been used as a sole basis for imposing liability. Rather, such a finding had only been made where other grounds for establishing liability had also been established.[50] At first glance it may seem that including a prohibition against exclusive dealing motivated by an anti-competitive purpose, in addition to the prohibition against exclusive dealing which has an anti-competitive effect, expressly provides for cases to be resolved on a moralistic basis with no regard at all to be made to likely effect. However, we cannot be certain whether parliament intended to impose liability simply on a moralistic basis or rather saw intention as something that might be taken an indicator of sorts of likely effect in a context where likely effect might be difficult to show directly. It is particularly noteworthy in this regard that, when originally enacted, the Trade Practices Act did not prohibit agreements that had the purpose of substantially lessening competition. The fact that purpose was introduced by amendment suggests a desire to make a simple variation to the original provision, rather than introduce a wholly different approach.[51] The prohibition against contracts, arrangements or understandings or exclusive dealing contracts with the purpose of substantially lessening competition was indeed introduced in 1977 in response to the Swanson Committee Report.[52] However, the Swanson Committee did not explicitly recommend the introduction of an intent-based test of liability. Rather, it simply recommended that the phrase ‘restraint of trade or commerce’ be replaced by a ‘notion or notions more closely related to the concept of competition’.[53]

Nevertheless, the intent-based test soon became the focus of specific attention. In particular, a debate arose as to whether purpose should be assessed objectively or subjectively. The objective approach (which focuses on the objectively reasonable explanation for the conduct rather than the actual reason why it was engaged in) is closer to a likely effects standard and for this reason commentators largely favoured its adoption.[54] Courts, for their part, have been less resolute. In the early case of Hecar Investments v Outboard Marine Australia, Franki J appears to have presumed that section 47(10) refers to the subjective purpose of the person who engaged in the conduct on behalf of the company.[55] Yet this approach was called into question less than three months later in Dandy Power Equipment v Mercury Marine,[56] when Smithers J, who clearly believed that a welfarist approach should be adopted when interpreting competition law statutes,[57] contrasted s 47(10) with s 45D, which talks of conduct being engaged in for a particular purpose, and concluded that the wording in s 47(10) is ‘hardly apt to refer to the subjective purpose of a person performing the relevant act and apt to induce an objective rather than a subjective approach’.[58] Two decades later, in Monroe Topple & Associates v Institute of Chartered Accountants Lindgren J similarly thought it questionable whether the relevant purpose in s 47(10) is a subjective purpose.[59]

The uneasiness with the subjective approach was also evident in the Universal Music litigation. At first instance in the Universal Music Hill J determined purpose subjectively although his Honour noted that if uninstructed by authority he would have adopted an objective approach to determine the music companies’ purpose.[60] However, on appeal the Full Court upheld the subjective approach, holding that a relevant purpose under s 47(10) is an ‘inference to be drawn from all of the circumstances ... as to the purpose of the particular respondent, not of some hypothetical bystander’.[61] The Court concluded that it could be inferred that Universal and Warner acted for the prohibited purpose notwithstanding that the effect of substantially lessening competition could not itself be established from the available evidence. Particularly relevant to this finding of intent was that the companies had expressed serious concerns about the introduction of legislation that would allow parallel importing and had devised and implemented a pre-emptive strategy designed to raise the barriers to entry faced by potential parallel importers.[62]

Thus, although the purpose prohibition may not have been included to permit the courts to engage in moralistic reasoning, it appears to have been interpreted to permit them to do so. Before Universal Music findings of subjective intent had clearly coincided with findings as to likely effect under the alternative ground in s 47(10). This was not the case in Universal Music. Thus an interesting question remains about the role, if any, left for welfarist considerations in cases decided solely on the basis of the purpose prohibition. The answer is not entirely clear. At times, the full Federal Court appears to have reached the conclusion that the conduct in question would not affect competition at all. For example, it described the music companies’ conduct as ‘naïve in retrospect’.[63] If the Court did not believe that there was any chance that competition would be substantially affected, this suggests that liability was imposed purely on a moralistic basis aimed at punishing the ‘bad’ conduct by a company that for the first time faced direct competition with respect to its own titles. At other points, the Court suggested that it was prepared to accept that on the evidence there was some likelihood that competition would be substantially affected even if this was not strong enough to satisfy the ‘real chance or possibility’ standard required by the likely effect ground in s 47(10).[64] After all, the Court did acknowledge that those with industry knowledge (including the defendants) believed that the conduct would make it much more difficult for parallel importers to establish themselves since it was anticipated that consumers would be reluctant to deal with retailers who did not carry major labels. Nevertheless, the court remained ‘uneasy about deciding the [effects claim] on that basis’ alone.[65] Thus it seems that the court suspected the conduct was likely to negatively affect competition but did not believe that this likelihood had been established to the required legal standard by the evidence presented. Imposing liability on a moralistic basis in these circumstances was not inconsistent with a welfarist approach that takes into account the difficulties of proof associated with establishing likely economic effects as a matter of legal likelihood.

In conclusion, the possibility that moralistic reasoning crept into the Court’s analysis in Universal Music cannot be ruled out and indeed seems rather evident in its references to the subjective intention of the defendants as all-important. However, at the same time the purpose prohibition seems to have become a vehicle for allowing the court to accept a lower evidential standard of likely effect than might have otherwise been permitted under s 47(10). That both moralistic and welfarist policies may have been at work helps to explain the somewhat ambiguous stance of the court as to the precise basis of liability in the case. Indeed, many of the court’s statements are consistent with either explanation of the ultimate finding. Take, for example, the court’s statement that ‘there was every incentive to try and [deter the new competition], even if against the odds’.[66] Was the court saying that the fact that the record companies (who can be assumed to have a good understanding of the competitive dynamics of their industry) engaged in the conduct indicated that there must have been a real likelihood that competition would be lessened even though the evidence could not independently demonstrate this as a legal likelihood? Or, was it suggesting that, even apart from the prospects of success, the conduct was nevertheless deliberate bad behaviour that ought to be punished? We suggest the best answer to the conundrum is that both were relevant. The question we will return to later is whether it is noteworthy that the first case in which a court was prepared to impose liability on the basis of anti-competitive purpose was a case involving the music industry.

Kazaa

Two years after Universal Music came Universal Music v Sharman License Holdings Ltd (popularly known as Kazaa).[67] The facts and holdings in Kazaa are as well-known in intellectual property circles as the Kazaa file-sharing service is known in file-sharing circles.[68] Kazaa used the same file-sharing technology as Grokster and Streamcast, whose marketing led to the US Supreme Court’s pronouncements on inducement in the earlier Grokster case. Kazaa was also along with Grokster and Streamcast being sued in the US, but since it was controlled by an Australian-based company (Sharman Networks Ltd) proceedings were launched in Australia as well. Indeed, Kazaa was the leading file-sharing service-provider, in its heyday attracting some 317 million internet-users, being 79% of the file-sharing population (and 5% of the world’s human population).[69] And, since a large number of uses involved copyright infringements[70] – at the same time as record companies were being pressured to grant licences to Sharman’s associate, Altnet Inc[71] – it is not surprising that proceedings would be launched in the Australian Federal Court, instituted by a range of applicants, including ‘companies associated with the world’s major distributors of sound recordings’.[72]

In the result, Sharman and its associates were held liable under s 101 of the Copyright Act, which gives the copyright owner the exclusive right to ‘authorize ... the doing in Australia’ of acts comprised in the copyright in sound recordings.[73] Under s 101(1A), introduced as part of the package of Digital Agenda reforms in 2000,[74] infringing authorisation must be decided by reference to a range of factors including:

(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.

Perhaps these factors were considered by the legislature simply to codify the common law.[75] However, at common law authorisation had been treated as requiring control over infringements – or, at least, that was the Australian position immediately prior to 2000 as a result of a series of cases decided in the 1970s to 1990s[76] – and it may be argued that the ambiguous reference to ‘if any’ in 101(1A) undermines this requirement.[77] The leading case of University of New South Wales v Moorhouse[78] had already made plain that, at least as far as Australia is concerned, a rather liberal meaning of ‘control’ could be adopted, for instance as in that case a failure to exercise supervision in circumstances where supervision is possible.[79] But even the possibility of this level of control was disputed in Kazaa and, although Wilcox J was prepared to find some control exercisable on the evidence,[80] it seems he was not prepared to rely entirely on this in concluding on authorisation under s 101. As Wilcox J noted, Kazaa had set out to capitalise on the plaintiffs’ copyright material, and ultimately this became the basis of the decision. Thus, notwithstanding some references to Moorhouse, the reasoning in Kazaa was actually rather similar to that of the Supreme Court on inducement in Grokster, and finds echoes as well in language used in some earlier cases on authorisation which had adopted a distinctly moral tone in identifying the standard as one of ‘sanction, countenance or approve’. [81] In particular, Wilcox J held:

At all material times, it has been in Sharman’s financial interest for there to be ever-increasing file-sharing, involving an ever-greater number of people. Sharman always knew users were likely to share files that were subject to copyright. At least since ... May 2003, Sharman, through Ms Hemming and Mr Morle, have been aware this was a major, even the predominant, use of the Kazaa system.

In the present case, the applicants are able to point to evidence of positive acts by Sharman that would have had the effect of encouraging copyright infringement. These acts include:

(i) Sharman’s website promotion of KMD as a file-sharing facility ...;

(ii) Sharman’s exhortations to users to use this facility and share their files ...;

(iii) Sharman’s promotion of the ‘Join the Revolution’ movement, which is based on file-sharing, especially of music, and which scorns the attitude of record and movie companies in relation to their copyright works ...Especially to a young audience, the ‘Join the Revolution’ website material would have conveyed the idea that it was “cool” to defy the record companies and their stuffy reliance on their copyrights.

Importantly, these acts took place in the context that Sharman knew the files shared by Kazaa users were largely copyright works.

While the above summary tells little that is not already widely known about the case, there are a number of points still to be made which are less obvious and more subtly relevant to our central argument that a moralistic approach is becoming a feature of music copyright cases, at least partly in default of firm understandings of the workings of music markets. First, unlike the Grokster case, the Australian case was a full trial, with extensive evidence led as to the way Kazaa functioned and the activities and motivations of users themselves and it was against this background that the evidence was not enough to clearly establish the extent of control that Sharman was able to exert over users, leading Wilcox J to comment that ‘Sharman’s ability to control — or, at least, to influence — the conduct of Kazaa users is the most contentious factual issue in this case’.[82] In the end, Wilcox J was prepared to infer a degree of technological control but this finding was understood to be contentious. Second, the judge’s alternative reference to ‘influence’ is intriguing, especially when later combined with the language of ‘encouraging’ noted above. Such references suggest not only a degree of moral agency, but also of potential causative effect. In particular, it may be recalled, Wilcox J placed considerable emphasis on it being in Sharman’s financial interest for there to be ever-increasing file-sharing (contributing to Kazaa’s advertising revenue) [83] and that Sharman not only encouraged the use of its website for file sharing purposes but did so in the knowledge that it stood to benefit.[84] Third, in an apparent side-comment, but again of some significance, the judge commented that the language of ‘join the revolution’ to the youth market especially ‘would have conveyed the idea that it was “cool” to defy the record companies and their stuffy reliance on their copyrights’.[85] And there was arguably some evidential support for this characterisation, with focus group reports of Kazaa users’ perceptions reporting the following as typical behaviour:[86]

— I know the song I want.

— I go to Kazaa to download it for free, with no hassles, at no cost.

— I burn it on to CD to play in my car, etc.

These comments would seem to suggest that while previously ‘control’ might have been concerned with physical control, or at least the ability to exercise physical supervision, what we may be seeing with the Kazaa case is an incipient recognition of psychological control, or influence, as a potential ground of liability especially where combined with a manifest subjective intention to exercise such control. Coercive tactics were touched on in Universal Music as well but in that case, at least, the coercion entailed economic threats (albeit they depended on assessments of consumer psychology), while in Kazaa, the influence on consumer behavior was of a particularly subtle psychological character.

In the past, judicial acknowledgments of psychological influences have been more associated with doctrines such as unconscionability and undue influence in equity than with tort law. Nevertheless the experience of these equitable doctrines is instructive. Indeed, it has become quite widely accepted among lawyer economists that while the language of unconscionability and undue influence may be moral the doctrines may further welfarist goals as well in tackling inefficient advantage-taking which undermines prospects for free, informed and rational bargaining.[87] Now Kazaa implies something similar for the economic tort of authorisation of copyright infringement, viz that moral and welfarist approaches can be combined into a hybrid approach that seeks to find ‘common ground’ in promoting the moral and economic goals of copyright law.

Concluding Comments

It is noteworthy that both our cases were about music. Taken individually, they may seem merely to exemplify the problems courts face in applying traditional legal reasoning to conduct that hinges on complex modern forms of market concentration and sophisticated new technologies. But, viewed together, they raise the question of the law’s ability to deal with the realities of music and music markets, at least so long as it seeks to maintain a ‘disciplined focus’ on questions of industry economics and consumer welfare. Although an expert witness in Universal Music said that music is like breakfast cereal in being used up in the process of consumption and distinguishable from more stable products in the demand for constant generation of new products,[88] there are important differences between music and cereal. As Mary Davis observes in Classic Chic: Music, Fashion and Modernism,[89] music has historically occupied an expressive world in which audiences identify with the creativity of production, reveal their individuality through their tastes and choices, and constantly find ways to rebel against authoritarian values – and indeed an element of rebellion against the authoritarianism of major record companies and their ideas of what the market should accept, rather than catering to what individuals within the market actually want, can be seen in the background of our cases. The difference was that in Universal Music the rebellious impetus of music consumers was supported by copyright law (and two of the majors sought to undermine this) while in Kazaa it entailed copyright infringements (aided, abetted and incited by the Kazaa file-sharing service). In other words, copyright law gave courts the authority to determine that a legally cognisable ‘harm’ had sufficient moral impetus to override the consumer’s otherwise morally imperative desire to be free. Seen in this light, the judicial referencing to moral considerations in the music cases should be supported – especially if it is not taken as a substitute for establishing liability according to welfarist standards but fosters a more sophisticated treatment of welfare effects (including ways in which conduct may influence behavior of actual music consumers). Our one cautionary note is that a moralistic approach allows considerable scope for multiple moral arguments and, absent further guidance from courts, we might expect this will be exploited in cases to come.

[∗] Lecturer, Melbourne Law School.
[∗∗] Professor, Melbourne Law School, The University of Melbourne. We are grateful to George Barker and participants in the 2007 Australian Law and Economics Association Annual Conference for helpful comments and discussions about ideas presented in this paper. We also thank Frances Hanks, Alexandra Merrett, Rhonda Smith and Richard St John for their helpful advice.
[1] Oliver Wendall Holmes, ‘The Path of the Law’ (1897) 10 Harv L Rev 457 at 463.
[2] See Gillian Hadfield, ‘The Second Wave of Law and Economics: Learning to Surf’ in Megan Richardson and Gillian Hadfield (eds), The Second Wave of Law and Economics, Federation Press, 1999, 50.
[3] Tim Wu, ‘The Copyright Paradox’ [2005] Sup Ct Rev 229 at 230.
[4] Although surprisingly unelaborated by intellectual property theorists, the Kantian corrective justice perspective finds support in the work of Peter Cane on tort law in general: see, for instance, The Anatomy of Tort Law (Hart, 1997), ch 1. See also Don Dewees, David Duff and Michael Trebilcock, Exploring the Domain of Accident Law (OUP, 1996), ch 1 (citing the writings of Ernest Weinrib on negligence law).
[5] See Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law (CUP, 1999), especially ch 11, referring to the Lockean natural rights tradition which dominated British copyright law prior to 19th Century utilitarianism and still retains some influence. See also (finding a parallel in American libertarianism), William Fisher, ‘Theories of Intellectual Property’ in Stephen Munzer, ed., New Essays in the Legal and Political Theory of Property (Cambridge University Press, 2001) ch 1.
[6] As famously argued by John Stuart Mill in On Liberty (1859) in M Warnock (ed), John Stuart Mill: Utilitarianism, On Liberty, Essay on Bentham (Collins, 1962), ch 1. Although ostensibly Mill adopts a utilitarian rationale for his ’ethical’ position on liberty, he is talking about ‘utility in the largest sense, grounded on the permanent interests of a man as a progressive being’: ibid p 136.
[7] Utilitarianism (1861), in M Warnock (ed), John Stuart Mill: Utilitarianism, On Liberty, Essay on Bentham (Collins, 1962). Cf Fisher, referring to such approaches as ‘social planning theory’, above n 5.
[8] Such rules may simply classify conduct according to its welfare producing effects (in which case rule utilitarianism is little more than a summary form of act utilitarianism) or, as with the rules of a game, may establish new practices which may otherwise not exist and which are welfare enhancing: see John Rawls, ‘Two Concepts of Rules’ (1955) 64 Phil Rev 53.
[9] For instance, preferring incremental development of traditional actions (rules) over new torts to deal with changing situations and circumstances: see Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73; (1984) 156 CLR 414, Deane J at 437 and generally Cass Sunstein, ‘On Analogical Reasoning’ (1993) 106 Harv L Rev 741.
[10] Queensland Wire Pty Ltd v BHP Ltd [1989] HCA 6; (1988) 167 CLR 177.
[11] Ibid at 191.
[12] (2002) 55 IPR 1.
[13] Ibid, Lindgren J at [150] (citing Laddie J in Autospin (Oil Seals) Ltd v Beehive Spinning (a firm) [1995] RPC 683). Cf Black CJ at [8]: the relevant authorities demonstrate ‘a reluctance of the courts to allow unfair advantage to be taken of the outlays of another in originating a work’. See also the comments of Sackville J at [424] (the policy considerations informing the nineteenth century authorities on copyright in factual compilations are ones of encouraging and rewarding ‘total labor of production’).
[14] Ibid [424].
[15] [1991] USSC 50; 499 US 340 (1991).
[16] ‘Copyright in Collections of Facts: A theory for the Protection of Nonfiction Literary Works’ (1981) 81 Col L Rev 516 at 530.
[17] Section 2 Trade Practices Act.
[18] The key prohibitions contained in the Trade Practices Act promote efficient markets by prohibiting conduct that has the purpose, effect or likely effect of substantially lessening competition. When analysing the effect of conduct, the courts are required to look at the impact of the conduct on the structure of the market and the likely future competitive dynamics in that market. In accordance with the legislative provisions, efficiencies are looked at by the courts exclusively in terms of their effect on the competitive process. If the conduct results in efficiencies that are likely to stimulate further competition in the market, this goes against a finding that the conduct in question has the purpose, effect or likely effect of substantially lessening competition. However, where the conduct generates efficiencies for the firm engaging in the conduct but is also likely to substantially lessen competition, parties cannot escape liability by arguing that their conduct generates efficiencies. Firms wishing to engage in conduct of the latter kind can, however, apply to have their conduct authorised by the Australian Competition and Consumer Commission on the basis that the anti-competitive detriments caused by the conduct are outweighed by the public benefits brought about by the efficiencies resulting from the conduct. For a discussion of these concepts in the merger context, see Arlen Duke, ‘A more efficient use of merger efficiencies in merger authorisation determinations’ (2007) 35 Australian Business Law Review 278.
[19] Independent Committee of Inquiry, ‘National Competition Policy’ (August 1993) (Hilmer Report), 6.
[20] Dawson Committee, Review of the Competition Provisions of the Trade Practices Act (2003), 29 – 33.
[21] See, for instance, Copyright Law Review Committee, Copyright Reform: A Consideration of Rationales, Interests and Objectives (AGPS, 1996).
[22] Review of Intellectual Property Legislation Under the Competition Principles Agreement (2003).
[23] Ibid p 6. Cf Trade Practices Commission, Application of the Trade Practices Act to Intellectual Property (1991), 5.
[24] Above n 22 at p 6.
[25] Although the Australian Industry Preservation Act 1906 (Cth) was introduced shortly after the US Sherman Act 1890, it was given a restrictive interpretation because of the prevailing judicial view of the Commonwealth’s constitutional power. The Trade Practices Act 1965 (Cth) which replaced it was invalidated on constitutional grounds. Thus, Australia only really had a comprehensive competition law statute from 1974 onwards (see Stephen G Corones, Competition Law in Australia (4th ed, 2007), 163–166.
[26] Elzinga notes that ‘[a] reading of the congressional debates on the Sherman and Clayton Acts reveals no single thread of efficiency weaving together the whole of the fabric: see Kenneth G Elzinga, ‘The Goals of Antitrust: Other than Competition and Efficiency, What Else Counts? (1977) 125 U Pa L Rev 1191, 1191.
[27] ‘Wealth Transfers as the Original and Primary Concern of Antitrust: The Efficiency Interpretation Challenged’ (1982) 34 Hastings LJ 67.
[28] Ward Bowman, Patent and Antitrust – A Legal and Economic Appraisal (1973), 14; Lawrence Sullivan, ‘Economics and More: Humanistic Disciplines: What Are the Sources of Wisdom for Antitrust?’ (1977) 125 U Pa L Rev 1214, 1232-3.
[29] See Brown Shoe Co Inc v US 370 US 294, f 28 and accompanying text. See also United States v Aluminum Co of America 148 F. 2d. 416, 427.
[30] See, for instance, WMC Gummow, ‘Abuse of Monopoly: Industrial Property and Trade Practices Control’ [1976] SydLawRw 2; (1976) 7 Sydney L Rev 339, 340 at 340 (offering rationales from alternatively ‘natural property’ and economics for intellectual property rights); Staniforth Ricketson, ‘Reaping Without Sowing: Unfair Competition and Intellectual Property Rights in Anglo-Australian Law’ [1984] UNSWLawJl 1; (1984) 7 UNSWLJ 1. In the latter article Ricketson draws on the US Supreme Court decision in International New Service v Associated Press [1918] USSC 191; 248 US 215 (1918), with its natural rights language of ‘reaping’ without sowing (per Pitney J at 241), in arguing for adoption of an unfair competition doctrine in Australia. In that case, economically-minded Holmes, along with Brandeis, did not concur in the majority’s reasoning. Subsequently, partly as a result of federal preemption by the Copyright Act 1976, but also due to the rising reliance on economic ways of thinking, by the mid-1980s, the INS doctrine had been largely discredited: see Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73; (1984) 156 CLR 414, Deane J at 442-3 and NBA v Motorola, Inc, [1997] USCA2 86; 105 F3d 841, 845, 853 (1997) (where as Winter J put it cases that relied on INS authority in the years immediately following, ‘sought to apply ethical standards’, but by 1997 it should be understood that ‘INS is not about ethics; it is about the protection of property rights in time-sensitive information so that the information will be made available to the public by profit-seeking entrepreneurs’.).
[31] For a discussion of the shifting policy goals in the United States see Robert Pitofsky, ‘The Political Content of Antitrust’ (1979) 127 U Pa L Rev 1051.
[32] As argued by Lande above n 27.
[33] A point generally made by Gillian Hadfield, ‘The Second Wave of Law and Economics: Learning to Surf’ in Megan Richardson and Gillian Hadfield (eds), The Second Wave of Law and Economics (Fed Press, 1999).
[34] Above n 3.
[35] 545 US 913 (2005).
[36] As Souter J said, ‘[w]e hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties’: ibid 936-7.
[37] Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242; (2005) 65 IPR 289.
[38] Kazaa is not Australia’s only music downloading case, followed soon after by Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187; (2006) 71 IPR 1 where liability was also premised on authorisation – but that case was concerned with rather different facts of hyperlinks placed on an internet site enabling music downloading (rather than the provision of p-2-p file sharing facilities).
[39] Universal Music (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193; (2003) 57 IPR 353.
[40] Queensland Wire Pty Ltd v BHP Ltd [1989] HCA 6; (1988) 167 CLR 177, 191. Cf Conagra v McCain Foods [1992] FCA 159; (1992) 23 IPR 193 at 236, Lockhart J observing, in a case under s 52 Trade Practices Act and passing off, that ‘evidence that the defendant had a fraudulent intent may assist in establishing the requisite misrepresentation, as the court “will not be astute to find the defendant has failed in his nefarious design”’, quoting Harman J in Midland Counties Dairy Ltd v Midland Dairies Ltd. (1948) 65 RPC 429 at 435.
[41] Universal Music (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193; (2003) 57 IPR 353.
[42] Section 47(1) prohibits the practice of exclusive dealing (subject to the other parts of section 47). The conduct engaged in by Universal Music and Warner Music constituted exclusive dealing within the meaning provided in sections 47(2) and 47(3). Section 47(10) provides that the forms of exclusive dealing engaged in by the record companies is not prohibited by section 47(1) unless the engaging by the corporation in that conduct has the purpose, or has or is likely to have the effect, of substantially lessening competition.
[43] See especially Wilcox, French and Gyles JJ at 404-14 ([225]-[274]).
[44] Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442.
[45] Universal Music (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193; (2003) 57 IPR 353, 407.
[46] Ibid. At 407 the full Court notes that ‘[o]nce one takes away the effect of any future conduct, it becomes difficult to say that the exclusive dealing conduct of either of the appellants was likely to have the effect of substantially lessening competition in the market’.
[47] Ibid, 382 – 391.
[48] Ibid 406.
[49] Ibid 356.
[50] Interestingly, despite numerous references in the case law to the possibility of establishing liability under section 1 of the Sherman Act by proof of either unlawful purpose or an anti-competitive effect, there has not been one decision in which liability has been imposed on the basis of purpose alone: see Donald Robertson, ‘The Primacy of “Purpose” in Competition Law – Part 1’ (2001) 9 Competition and Consumer Law Journal 101, 109.
[51] By contrast, Section 45(4) prohibited contracts, arrangements or understandings in ‘restraint of trade or commerce’. Agreements other than price fixing agreements were not in ‘restraint of trade or commerce’ unless they had or were likely to have a ‘significant effect on trade or commerce’. Price fixing agreements were in ‘restraint of trade’ if the restraint had such a slight effect on competition as to be insignificant. Section 47 prohibited exclusive dealing contracts that were likely to have the effect of substantially lessening competition.
[52] Trade Practices Act Review Committee, AGPS, Canberra, August 1976
[53] Ibid, 4.8.
[54] See, for instance, Kathryn McMahon, ‘Church Hospital Board or Board Room?: The Super League Decision and Proof of Purpose under Section 4D’ (1997) 5 CCLJ 129, 130-131; Donald Robertson, ‘The Primacy of “Purpose” in Competition Law – Part 2’ (2002) 10 CCLJ 43, 44 (see also pp 50-52 for a discussion of policy arguments in support of an objective standard).
[55] [1982] FCA 118; (1982) ATPR 40-298, 43,705-6. This issue was not discussed on appeal.
[56] [1982] FCA 178; (1982) ATPR 40-315
[57] Ibid, 43,897. Smithers J started his discussion of purpose by noting that ‘[t]he interpretation of the reference to “purpose” in section 47(10) depends upon the nature of the enactment and the context in which the particular provision occurs. The nature of Part IV of the Act is that it aims to ensure a state of competitive trading by providing rules of conduct, penalties and remedies to persons who suffer if the rules are contravened’.
[58] Ibid, 43,898.
[59] [2001] FCA 1056 at [241]. This issue was not discussed on appeal.
[60] Australian Competition and Consumer Commission v Universal Music (2001) 115 FCR 442, 548
[61] Universal Music (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193; (2003) 57 IPR 353, 410 [256]
[62] Ibid, 369 [58].
[63] Ibid, 412 [263].
[64] See discussion of authority at [1.45.30] in Russell V Miller, Miller’s Annotated Trade Practices Act (29th ed, 2008).
[65] Ibid, 408 [248]. In reaching the conclusion that the conduct was likely to substantially lessen competition, Hill J did not place any weight on the fact that the record companies were clearly of the opinion that this conduct might be successful. Rather, he based his conclusion on the fact that the signaling effect of the conduct (Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442, 547 [442]) and the fact that each company had a ‘monopoly’ over its own titles (551 [480]).
[66] Universal Music (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193; (2003) 57 IPR 353, 410 [263].
[67] Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242; (2005) 65 IPR 289.
[68] The case has already been the subject of extensive comment, see for instance Graeme Austin, ‘Importing Kazaa – Exporting Grokster’ (2006) 2 Santa Clara Computer & High Tech. LJ 577; Rebecca Giblin-Chen and Mark Davison, ‘Kazaa goes the Way of Grokster? Authorisation of Copyright Infringement Via Peer-to-Peer Networks in Australia’ (2006) 17 AIPJ 53; Jane Ginsburg and Sam Ricketson, Inducers and authorisers: A comparison of the US Supreme Court's Grokster decision and the Australian Federal Court's KaZaa ruling’ (2006) 11 MALR 1; Megan Richardson and Arlen Duke, 'Hello!, Nike and Kazaa: Bargaining in the Shadow of Intellectual Property Law' [2007] Ent L Rev 56.
[69] Based on information published on the KMD webpage and by Sharman’s CEO, Hemming: see above n 37 at [160] and [182]. This very quickly changed, however, by later in 2004: http://www.theage.com.au/news/technology/sorry-but-we-cant-hear-you/2005/09/16/1126750125395.html.
[70] As Wilcox J commented, ‘Sharman knew the files shared by Kazaa users were largely copyright works’: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242; (2005) 65 IPR 289, [406].
[71] Ibid [316]. Although Altnet might still have been acting independently of Kazaa and that encouraging licensing should be an explicit policy of copyright law, this was not the view of Wilcox J who commented that ‘I understand the argument in favour of more widespread licensing of copyright works. No doubt that course would have commercial implications for sound recording distributors. Whether or not they should take it is a matter to be determined by them. Unless and until they do decide to take that course, they are entitled to invoke such protective rights as the law affords them’: ibid at 292.
[72] Ibid at 292, per Wilcox J.
[73] And for the same applying to works see s 36(1).
[74] Copyright Amendment (Digital Agenda) Act 2000 (Cth), schedule 1, item 99, and see similarly item 36 (same factors introduced, regarding infringement by authorsation of works, by s 36 (1A)).
[75] The Explanatory Memorandum for the Copyright Amendment (Digital Agenda) Bill stated that ‘[t]he inclusion of these factors in the Act essentially codifies the principles in relation to authorisation that currently exist at common law (see in particular University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1). It is intended to provide a degree of legislative certainty about the steps that should be taken in order to avoid liability for authorising infringements’: see [124] and see similarly (regarding s 36) [56].
[76] In particular, in University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1 (Gibbs J) and Australian Tape Manufacturers Association Ltd v Commonwealth [1993] HCA 10; (1993) 176 CLR 480 (Mason CJ, Brennan, Deane and Gaudron JJ).
[77] As pointed out by Giblin-Chen and Davison above n 68 at 68.
[78] University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1.
[79] Ibid, see Gibbs J at 13 (‘a person who has under his control the means by which an infringement of copyright may be committed — such as a photocopying machine — and who makes it available to other persons, knowing, or having reason to suspect, that it is likely to be used for the purpose of committing an infringement, and omitting to take reasonable steps to limit its use to legitimate purposes, would authorize any infringement that resulted from its use’). The line was however drawn at cases where no control was exercisable at point of infringements: Australian Tape Manufacturers Association Ltd v Commonwealth [1993] HCA 10; (1993) 176 CLR 480, Mason CJ et al at 498.
[80] Especially in use of keyword filtering and ‘flood filtering’, as devices to distinguish and control infringements: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242; (2005) 65 IPR 289 [414].
[81] For instance Falcon v Famous Players Film Co [1926] 2 KB 474; Adelaide Corporation v. Australasian Performing Right Association Ltd [1928] HCA 10; (1928) 40 CLR 481, especially Iasacs J at 489-90 (adding that the legislature’s introduction of the word ‘authorise’, understood in this sense, into the copyright statute, ‘made a distinct effort to bring the statute law up to the manifest demands of morality’ – although Isaacs J, as the other judges in that case, appeared to assume a degree of control was required). Indeed, the seeds of Wilcox J’s modern approach can be found in the judgment of Jacobs J in Moorhouse, who, relying on the sanction, countenance or approval language of the earlier cases, premised his finding of authorisation on a finding of ‘permission or invitation’, an expression which, as he said, ‘is apt to apply both where an express permission or invitation is extended to do the act comprised in the copyright and where such a permission or invitation may be implied’: above n 76 at 21. Curiously, in Kazaa, Wilcox J notes this aspect of Jacobs J’s judgment in Moorhouse but does not distinguish the approach from that of Gibbs J: see Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242; (2005) 65 IPR 289, [368].
[82] Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242; (2005) 65 IPR 289, [195].
[83] Ibid at [191] (‘[t]he more shared files available through Kazaa, the greater the attraction of the Kazaa website. The more visitors to the Kazaa website, the greater its advertising value and the higher the advertising rate able to be demanded by Sharman. And what is more likely to attract large numbers of visitors to the website than music, especially currently popular “hits”?’).
[84] Ibid at [404]-[406].
[85] That Wilcox J saw the influence as subtly catering to (what he perceived to be) the psychology of teenagers, is reinforced by his comments about the inadequacy of warnings on the Kazaa website: ‘I have no reason to believe any significant number of Kazaa users, apparently mainly teenagers and young adults, has any knowledge about, or interest in, copyright law or its application to file-sharing. Nor have I any reason to believe that any significant proportion of users would care whether or not they were infringing copyright. The “Join the Revolution” material displayed on the Kazaa website and the “Kazaa Revolution” T-shirt indicates the Sharman respondents perceive they might not. While I agree with the applicants that the existing warnings do not adequately convey to users what constitutes breach of copyright, I am not persuaded it would make much difference if they did’: ibid at [340].
[86] Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242; (2005) 65 IPR 289, [185].
[87] See for instance, Michael Trebilcock, Limits of Freedom of Contract (Harv U Press, 1993), ch 5, Megan Richardson, ‘The Utilitarian-Economic Model of Contractual Obligation: Unconscionability at the Frontier’ [1995] MelbULawRw 27; (1995) 20 Melb U L Rev 481 and Anthony Duggan "Is Equity Efficient?" (1997) 113 LQR 601. See also Arlen Duke, ‘A Universal Duty of Good Faith: An Economic Perspective' (2007) 33 Mon Uni Law Rev 182.
[88] See ACCC v Universal Music Australia Pty Ltd (2001) 115 FCR 442, evidence of Professor Hausman, as summarised by Hill J at 530-532 ([383]-[389]).
[89] Classic Chic: Music, Fashion and Modernism (U Calif Press, 2007).