Here’s the non-legal intro to show you what it’s all about. Or you can omit reading it here, and read it in the document itself: Legal Implications of Internet Filtering.

Introduction:

Alexander turns on his computer, smiling as he hears the familiar chime. Colours fill the screen, a feast for his eyes, and he clicks on an icon, his gateway to the Internet. As he submits two words to a search engine and chooses the first result, as if advised by an old friend, Alexander is unaware of the underlying processes.

His computer converses with a network provider and asks whether Alexander may access the website.The network provider turns to a domain name server, to find out on which server the website is located, before finally connecting to the hosting provider to obtain transmission of the website data. Meanwhile, Alexander blinks. The Internet must be unhappy with him: he is denied access to the website. Alexander sighs, and goes back to the search results. He does not pause to consider whether access was blocked rightfully or whether this limits his freedom; he does not even contemplate complaining to anyone. After all, it’s the Internet, and he doesn’t understand it. How could he, a normal web user?

In this simplified tale of daily Internet use, Alexander is confronted with access denial to a website that appeared in search results. As he shares the general population’s lack of understanding of the technology underlying the Internet and the World Wide Web, he does not know why the information embodied in the website is not being transmitted to him. He is unable to assess whether the problem lies with the website owner or with any of the intermediaries between him and the website.

One possible explanation may, however, spring to the mind of an observer with some degree of technical knowledge: this access denial may come from a filter.

Once again, here’s the link to the dissertation: Legal Implications of Internet Filtering. Happy reading…

If you have any interest in the questions of why countries filter the Internet, of why speed bumps are preferred to simple car speeding laws, of how Alex in A Clockwork Orange may be our future, I heartily recommend that you take a look at lawcode.net, a place where a few friends and myself will attempt to bring these questions into the open, with the hope that as time goes by, people from all over will contribute articles or short columns.

You don’t need to be a lawyer and you don’t need to be a technologist. All you need is an interest, however remote, in the questions that will appear there. So why not take a look and see what you think?

Law Code: choice is but a memory.

People want their private information to remain private until made public by themselves, but once the information is made public, there is no way for them to control this information any more. On the internet, especially, it is hard to erase information that you would want to see disappear, notably if the information in question does not cause harm to your reputation.

Companies want to protect trade secrets as well as much commercial information, but while we tend to speak of information being “given”, “transferred”, “licensed for use”, the law doesn’t recognise information as being remotely similar to property, and this can lead to certain issues. Indeed, if reverse engineering is possible and if it is impossible for the company to obtain a patent, it may be easy for a competitor to find the information, and there’s nothing the company can do about it.

What can we do about it?

Critics of the idea of applying “property” to information say that “property” entails an idea of “rival” use (only one person can have it at a time) and exclusivity, while information is by nature “non rival” (many people can use it at one time). While I fail to see how “intellectual property” is allowed in such a case, where many people can end up using one piece of information (e.g. the description of an invention in a patent) through licences, I recognise that the idea of “property” may not be adequate.

There is therefore, in my opinion, a need for a new legal concept, that of “information ownership“.

Information ownership would entail the right for the information owner to use information, to transfer ownership of it, to allow certain uses of information by other persons, et cetera. It would not be “property” in the traditional legal sense, but would cover the same basic idea, thus allowing the law to better reflect reality (it goes beyond mere semantics, I believe, but it may appear as simply that to many).

In a world with the concept of information ownership, courts would recognise the right for a person to demand the deletion of all instances of publication of a certain piece of information, if the person’s interests trump those of society. It would be decided on a case by case basis, but such a system would allow for flexibility.

In a system of information ownership, the current tests with regard to private data could still apply, as they are merely a declination of the idea according to which people should have control over certain data. Trade secrets would potentially be better protected, as there would be a closer link between the intention of the parties (i.e. “I own the information, and I’m allowing you to use it”) and the legal framework.

The main problem with such a system is the following question: who owns the information?

Just as there can be co-ownership of property, so there can be co-ownership of information. Take the example of a picture of three people partying in a club. The information embodied in the picture is that these three people were partying in a club. On a Facebook/Flickr/… page, there may be additional details about the picture, such as the date on which it was taken, thus allowing third parties to infer the following piece of information: these three people were at this club on this day. Who owns ownership in this piece of information? All three. Who is allowed to use the information and allow use of it? All three, with the possibility of ex post control by the co-owners: if one person makes the information public, the other two can force any identified third person who is using the information to stop using it.

Moreover, the standard rules of evidence would apply, so as to better answer the question of ownership for cases where there is no identifiable link with any person (where there is as identifiable link with one person, there will be a presumption of ownership by this person).

Of course, I can see a million different issues arising as a result of such a system, but this was merely a first draft of an idea, a call for discussion.

All that I know is that, in my opinion, there is a need for something that bridges the gap between privacy, data protection and trade secrets, something that allows us to control information beyond its publication. Otherwise, it is not hard to foresee cases in the near future where people will wish to remove information that they themselves have published or that someone else did, and where the current legal and real contexts will prevent them from doing so.

Four words: copyright in Peter Pan.

Normally (in the EU), copyright in a work expires 70 years after the author’s death. Previously, this tended to be 50 years rather than 70.

The author of the play Peter Pan, Sir James Matthew Barrie, died in 1937, and at the time, the rule of 50 years applied, i.e. copyright was to expire in 1987. It turns out that Sir Barrie bequeathed copyright in his Peter Pan works to the Hospital for Sick Children, later renamed Great Ormond Street Hospital, in 1929.

While copyright in the works expired in 1987 (only to be later extended to 2007, when the “70 years” regime came into force), the Brits decided to create an exception to the standard rule, and included in the Copyright, Designs and Patents Act 1988 a “Section 301″ and a “Schedule 6″.

The substance of these rules? They confer on the Hospital the following:

a right to a royalty in respect of the public performance, commercial publication or communication to the public of the play “Peter Pan” by Sir James Matthew Barrie, or of any adaptation of that work, notwithstanding that copyright in the work expired on 31st December 1987

In other words, perpetual royalties, at least within the UK.

Now I dare you not to find that cute…

It’s frustrating, because I hope to work in this very field (I find it fascinating), and all I seem to see are the manners in which people have been slowly destroying the system by acting in a way that they believe helps the system.

Copyright

First, a little introduction on copyright and Digital Rights Management (and here, I’ll be basing my analysis on the system in English law – see the Copyright, Designs and Patents Act (CDPA) 1988).

Copyright is an exclusive right for a person to certain acts, with respect to a specific “work” (a product, …): copying the work, issuing copies to the public, renting/lending the work to the public, performing/showing/playing the work to the public, communicating the work to the public, making an adaptation of the work (these are the “restricted acts”).

The most well-known right among these is the right to copy the work, and copyright implies that if A has copyright in work 1, B cannot copy work 1.

This right has limitations, the biggest one being that if A gives a licence to B (in effect an authorisation), B is allowed to copy work 1.

Now, Digital Rights Management (DRM) systems have gained in importance over the last few decades, as the digital revolution unfolded and it became surprisingly easy to copy works such as digital music recordings, computer games, digital versions of films, …

In effect, DRM systems enable the rights holder to prevent many of the aforementioned “restricted acts” by rendering them more difficult, through the use of technology.

DRM has been heralded by many as a means of reducing piracy, notably by the music industry after Napster and Kazaa brought file-sharing to the world of computer users.

However, more often than not, it seems that DRM hurts those who legally acquire an item more than it hurts those who acquire it illegally.

Let us look at a recent case study, a controversy around the upcoming Assassin’s Creed II game for the PC (AC2), a sequel to the popular Assassin’s Creed. Ubisoft released AC2 a few months ago for several game consoles, but the PC version is only set for release around mid-March.

As the release date approaches, reports have surfaced of a new kind of DRM: it seems that Ubisoft require gamers on the PC version of AC2 to have a constant internet connection for the game to work. If your internet connection quivers, you lose all progress since your last checkpoint. If you don’t have an internet connection, you can’t play.

Who does this hurt most?

Theory 1: “piracy”. This is the official explanation. Ubisoft believe that game piracy on the PC is so large that the only way to stop it is to ensure that only players with a legally acquired copy (so-called “legit users”) can save their progress. This does not convince me: Ubisoft have stated that they can “release a patch so that the game can be played in single-player without an online connection” (source), which means that pirates may very well create the patch themselves, and pirate copies will start floating around the internet very soon.

Theory 2: Ubisoft and “legit users”. This seems to be the point the entire internet community is making, from Ubisoft’s own web forums to Ars Technica. It boils down to this: many people who have bought Ubisoft games in the past are frustrated by the announcement of this limitation, and will not buy the game. Therefore, Ubisoft have less pre-orders of its games. People who buy this game will be frustrated by the sudden inability not to continue playing the moment their internet connection drops, and will perhaps not buy Ubisoft games in the future. Therefore, less profit for Ubisoft in the long run. And both kinds of users may resort to piracy to go around this limitation. Therefore, piracy goes up.

Unless Ubisoft realise this soon (the game will be released in a week), its DRM scheme will hurt Ubisoft’s profits and generate more piracy. How does this fulfil the purpose of the DRM scheme?

As for me, I’m still hesitating, waiting for now. I have had a pre-order of AC2 for some time now, but I may cancel it in the coming couple of days. We’ll see how things progress.

All in all, though, this perfectly illustrates one problem: technical implementations of copyright restrictions are alienating users who would adhere to the original business model. Too much copyright, through DRM, kills copyright.

Patents

Let us now examine patents (pronounced “pah-tent”, not “pay-tent”, in the UK, notably to distinguish the adjective “patent” [as in "patently"] from the noun “patent” [as in "patents"]).

This analysis is once again based on English law (the Patents Act (PA) 1977).

Patents are a monopoly right given to commercially exploit an invention. In other words, with a patent, the owner has an exclusive right to make this product or carry out this process, to the exclusion of everyone else, even if someone else creates it without having copied from the owner.

Patents are granted after a procedure that involves publishing information about the product/process, and thus the theory goes that the monopoly right conferred by the patent is counterbalanced by the publication of this information.

However, this right has limitations, two of which are of great importance: if B has created such a product or employed such a process before the publication of A’s patent, B will still be allowed to continue doing what he/she did beforehand; also, if A gives a licence to B, B is allowed to exploit the invention.

The patent system is generally given a few justifications: it serves as a reward for innovation (you invent something and are given a monopoly as a reward), it serves to incentivise innovation (the monopoly allows a return on investment – this is slightly different from the “reward” justification), it is a natural right (inventors should have a right in their invention), it allows the sharing of information (the patent allows the publication of information that would perhaps not have been shared otherwise). While one can disagree with these justifications, the first two seem to be still very present today.

There is one field in which patents have been the focus of debates and controversies: biotechnology, and we shall examine certain of the issues here.

The question of the patentability of biotechnology came to the forefront only in the late eighties/early nineties, with the OncoMouse case, which concerned one of the first transgenic animals, a mouse whose genes were particularly susceptible to cancer.

Biotechnological inventions have been the target of specific regulation in Europe since the adoption (after a long history of parliamentary debates, revisions, …) of the Biotechnology Directive, which takes into account the lessons from the OncoMouse case and other, later cases.

Taking cue from the Howard Florey/Relaxin case, the Directive specifies the following in Article 5:

1. The human body, at the various stages of its formation and development, and the simple discovery of one of its elements, including the sequence or partial sequence of a gene, cannot constitute patentable inventions.

2. An element isolated from the human body or otherwise produced by means of a technical process, including the sequence or partial sequence of a gene, may constitute a patentable invention, even if the structure of that element is identical to that of a natural element.

In layman’s terms, the situation is the following: when one discovers a discrete segment of DNA that contains the information necessary for producing specific proteins, one can reproduce it synthetically. Does this amount to a discovery, or is in at invention that can be patented?

The answer for which the Biotechnology Directive provides is that any gene that is isolated and thus created separately can be patented. The technical intervention is the creation of the artificial molecule, and this allows patentability.

Can you see the logic behind this rule? The more I think about it, the less I understand it. It may make sense to allow the patenting of the process used to isolate a gene, but what could possibly justify issuing a patent for the isolate gene itself?

According to this logic, if A isolates gene Z using method 1, whenever B isolates Z using method 2 there will be infringement, despite the fact that Z already exists in nature.

The patenting of a gene or of a molecule existing already in the human body causes all sorts of other issues, notably regarding innovation. Indeed, if A obtains a patent on molecule Y, A can oppose any use of molecule Y. Yet in the case of pharmaceuticals, medicine and other such areas of practice, the use of molecules is the starting point for any research.

The patent system is often seen as an incentive to innovation, but this is then surely one area where it stifles innovation, as one has to obtain a licence for the use of a molecule before one can even start doing any research. If one sees the patent system as a method of rewarding innovation, does this not go too far?

Closing comments

To me, intellectual property is a good thing to have in the Western society in which I live (I have very strong reservations about the way Westerners try to force intellectual property upon developing countries, but that’s another matter). Copyright especially has a special place in my heart as an author and composer: I would dislike to see any works I do be attributed to someone else, for example.

However, the current systems of intellectual property have flaws.

Copyright, which once favoured the author, has gone to favour the producer/publisher, and the latter has decided that fighting piracy is a topmost priority, to the extent of alienating normal users. What is the Creative Commons movement if not an indication that copyright in the minds of creators goes too far?

Patents, which cover most products and processes, may also be seen as going too far in certain cases. The biotechnological sphere provides us with illustrations, but it is by no means the only one. Furthermore, in the EU, incremental inventions gain as much protection (if not more) as a pioneering invention.

One major issue in all of this is that complaining appears to be of no use. The USA adore IP rights, and so does the EU. Powerful lobbies seem to always push for more rights for the industry (whether the publishers/producers for copyright or the companies with huge Research & Development sections for patents). Will the community of world users and creators/inventors ever take back what they have lost to the industry?

What is cyberlaw? Cyberlaw is the law applicable in ‘cyberspace’, a seemingly ‘global-economic zone, borderless and unregulatable’ (John Perry Barlow in 1966, quoted in Reed, 2004). Yet, as Chris Reed argues, it is possible to proceed to a localisation in the ‘physical’ world of the constituent elements of any given activity in cyberspace, and national laws will therefore apply, in accordance with rules on applicable law (such as the Rome I and Rome II Regulations, at the level of the European Union).

Therefore, there are as many legal orders in cyberspace as there are national (or supranational) legal orders.

Having made these preliminary remarks, the original question, to which the introductory statement refers, remains: is cyberlaw an area of law?

It is the opinion of the author of this essay that cyberlaw is not (yet) an area of law, but that it is a legal order. Let us examine why one might be led to such a conclusion.

Since the creation of the Internet and of the World Wide Web, where cyberspace activities mainly revolved around the exchange of purely academic information (see the first Usenet ‘newsgroups’), the array of activities carried out in cyberspace has never ceased to expand. The Internet is not only the realm of discussion, but it also houses commerce, crime, …

As cyberspace developed, so did national (and supranational) regulation of this ‘virtual’ world (e.g. the Convention on Cybercrime of the Council of Europe or the E-Commerce Directive of the European Union and their respective national implementations). While some laws provide for the application of specific rules to cyberspace activities, many aspects of these activities remain governed by rules crafted with the physical world in mind.

Any activity in cyberspace will thus be governed by rules relating to contract law (e.g. contract liability), tort law (e.g. defamation), intellectual property law (e.g. copyright infringement), constitutional law (e.g. free speech), …, just as it would be if there were a physical equivalent to the activity in question. Where specific rules exist for cyberspace activities, these rules replace those of the physical world.

The preamble of the E-Commerce Directive is telling in this respect, as it states that ‘[t]he objective of this Directive is to create a legal framework to ensure the free movement of information society services between Member States and not to harmonise the field of criminal law as such’. This establishes a distinction between services and criminal law, notably for reasons linked to the European Union’s competence, and thus perpetuates and transposes the existing distinction between areas of law of the physical world into the virtual world.

Cyberlaw today therefore comprises both law of the physical world and specific law made for cyberspace in particular.

Can cyberlaw nevertheless be considered to be unique enough to qualify as an area of law distinct from all others? Proponents of this idea may draw arguments from the existence of ‘aviation law’, ‘space law’, ‘admiralty law’, … Indeed, Andrew Murray writes that ‘the aviation industry created a complex set of socio-legal requirements’ for an array of activities related to flights (Murray, 2007).

However, it is the opinion of this author that such is not yet the case for cyberlaw: if there is a threshold of specificity of legal norms to be attained for cyberlaw to be deemed an area of law, the sheer proportion of rules from the physical world still applying in cyberspace without modulation places cyberlaw well beneath this threshold. The set of ‘socio-legal requirements’ distinct to cyberspace is not yet sufficiently complex, as cyberlaw holds too many ties to law of the physical world.

Furthermore, this author is unconvinced of the possibility of cyberlaw ever becoming a distinct area of law (or at least not in the short run). Indeed, if the first decade of this 21st century is any indication, activities in cyberspace ten years from now will not be limited to what they are today. As activities in cyberspace become more diverse, the number of existing rules of the physical world applying to cyberspace will grow, and it is unlikely that regulators will provide for rules specific to cyberspace in all instances, leading thus to a perpetuation of the distinction among areas of law (traditionally of the physical world) in the virtual world.

Therefore, rather than contemplating the issue of whether cyberlaw is an area of law, this author suggests that it would be more appropriate to view cyberlaw not as an area of law, but as a legal order parallel to a legal order applying to the physical world.

Just as the physical legal order concerns the law of contract, the law of tort and other areas of law, so does the legal order applying to activities of the virtual world. In addition to its own rules in certain areas, where regulators deem it necessary to provide for specific rules in light of the nature of electronic communications and of the Internet, the virtual legal order contains rules stemming from the physical legal order, not unlike the way in which the legal order of any Member State of the European Union contains rules stemming from the legal order of the European Union.

Murray set out to prove that cyberlaw was an area of law notably to prove Joseph Sommer wrong, after the statement that ‘"cyberlaw" and "the law of the internet" are not useful concepts’ (Sommer, 2000). Perhaps his task would have been easier, had he viewed cyberlaw as a legal order: in this context, cyberlaw is a useful concept, as it enables a better understanding of the legal landscape.

References:
A Murray, The Regulation of Cyberspace: Control in the Online Environment (Routledge-Cavendish, Oxon 2007)
C Reed, Internet Law: Text and Materials (2nd ed Cambridge University Press, Cambridge 2004)
J Sommer, ‘Against Cyberlaw’ (2000) 15 Berkeley Technology Law Journal 1145.

I am in the process of finding a topic for the 15,000-word dissertation that I shall write during this year, and therefore wish to lay out my current ideas, in the hope that one or two might give their opinion.

When using the internet, most of us feel free: we can type anything in Google, and find our way to a million different results. We can go to Amazon or eBay, search for anything, and probably find one or two things of interest to us. We can read a blog, click on a link, and find ourselves reading articles of diverging points of view. A seemingly infinite realm of information is available at our fingertips.

However, all is not golden in this world of apparent freedom. In many States (from China to the UK), users are limited in their use of the internet by “filters”, which are meant to block access to specific (categories of) websites. Certain items of information are blocked in a more specific manner at the level of websites, when the website owner/administrator/moderator applies censorship. All in all, these intermediaries control available information.

As such, when user tries to access content, such access may be denied. Sometimes, the user is fully unaware of the existence of the information in question, but not all the time. Does this hinder freedom of access to information? Does this hinder the information creator’s freedom of speech? Whence does the right to censor/block information come? Is the creator or intermediary liable to the user if illegal/offensive/… material isn’t blocked? Is the intermediary liable to the creator or to the user for information wrongfully blocked? Does the creator not have a right to access the information created by himself?

This is the kind of question that I believe I would ask and try to answer. Concerns of legitimacy and effectiveness must be addressed, though the focus would be the legal point of view.

Any thoughts on the matter?

Clocking in at 63 pages (81 pages with the cover, table of contents and bibliography), my Mémoire analyses in a first stage whether in general, the European institutions make use of comparative law. In the second part, I analyse a number of different, recent acts, to determine whether the use of comparative law has had any influence on the act’s content.

Now, I won’t recommend reading this if the general idea isn’t remotely interesting to you.
If on the other hand the idea piques your interest, rest assured that I have tried to make the content fully accessible to people with no knowledge of law (well, at least the first part – the second uses a bunch of legal concepts).

So, if interested, you can view/download/print the PDF document: Use of Comparative Law in European Law.

Note the “Peter A. Craddock”, to avoid confusion with the other Peter Craddocks of the world.

He breathes deeply. After years of fighting in the training arenas, this is his first big fight. A fight for a chance to live in a better condition than now. Not the only such opportunity, but best to take the first that comes by.

He wonders whom he will face: people from his training arenas, or people from others? What if he isn’t good enough?

Five long years of training. Mental and physical. And now, the chance to get away from the training, into the real thing, with the prospect of better food and perhaps even control of what he does.

If he beats the others, a senator or a merchant will take him under his wing. He might then sell him to another one. Might be a good thing, too: it could mean new things to learn or to do.

The gladiator feels a shiver go down his spine. The time has come.

A voice outside roars: “Let the games begin”.

Back to real life.

Well, it’s that kind of moment: most people in my year at university are getting ready to enter the professional world in a few months. Interviews a plenty, walking dinners and all that jazz. I’m taking another year of studies, but I’m starting to feel like the gladiator any way.

This is according to Lord Anthony Giddens, who gave us a very nice keynote on Tuesday on the three crises which plague our times: the globalisation crisis, the climate crisis and the financial crisis.

It was a fascinating conference, and the result of his address was to suggest that in the future, countries will have to tackle two of the crises together: the climate and the globalisation crises.

Lord Giddens’s reasoning is as follows: those suffering the most of the financial crisis in the times to come will be those with lower skills, and with the emergence of new technology which is more eco-friendly, there will be the creation of jobs, many of which will not require high technical skills. If governments invest in the training of people for these jobs, Giddens sees it as a win-win situation.

Now, the second part: all citizens of the web are agents of globalisation. They propagate news, they tell their stories (and some write just like that, sometimes without caring if there is no reader but themselves – ahem*peter*ahem). They waste time on internet fora and game websites, and create a special “web culture”, by being more informed than many citizens. And through them, the system grows, reaching global proportions.

So there, a small lesson in sociology.

And another random note: the Kadi judgment by the European Court of Justice is the most awesome judgment I’ve heard of so far.
Sheesh, you can tell I study Law…