Does Technology Trump Intellectual Property?: Re-framing the Debate About Regulating New Technologies

My article on the relationship between technology and intellectual property has been published in SCRIPTed – A Journal of Law, Technology & Society. The full article is available on the journal’s website.

Below is an abstract:

‘Does technology trump intellectual property rights (IPR)? In the Metro-Goldwyn-Mayer Studios v Grokster case, Justice Breyer believes this to be so. This article will analyse whether Justice Breyer’s belief has valid legal and empirical bases in light of the different cases and legislations that seek to resolve the challenges brought about by new technologies vis-à-vis IPRs. This article argues that the proposition that law favours technology over IPRs requires further qualification in order to prevent one from falling into the traps of technological determinism, instrumentalism and the belief in the neutrality of technology. A re-framing of the debate is needed which goes beyond the traditional technology versus IP dichotomy and focuses on the main goal of technological development and IP protection, which is to advance innovation in its broadest sense.’

The UDRP is a good model for ODR

Although it’s far from perfect, I think the Uniform Domain-Name Dispute-Resolution Policy (UDRP) is a good model for online dispute resolution (ODR) because of its following characteristics: (i) it applies to a very specific, narrow field – cybersquatting and domain names; (ii) it has global application and domain registrants are contractually bound when registering a domain name to undertake arbitration under the UDRP (no jurisdiction issue); (iii) its non-national in that no specific national law specifically applies (no choice of law problem); (iv) the costs are as a whole not prohibitive; (v) the proceedings are transparent since the decisions are published and available to the public; (vi) its subject community may be heterogeneous but there are still certain common values and norms; (vii) it has on tap a number of experienced arbitrators; (viii) the proceedings do not bar the parties from bringing the dispute to ordinary courts if they so wish; and (ix) the simple procedure under the UDRP is appropriate for the non-highly complex issue of cybersquatting.

This post was originally written for a class in Information Technology Law when I was an LLM student at the University of Edinburgh.

Consumer online dispute resolution (ODR)

ODR is mandatory if, pursuant to the agreement between the provider and the consumer, the consumer is required to pursue the exclusive remedy of arbitration or other forms of ODR. ODR is binding if the parties agree that any result or decision that comes out of the proceedings is legally binding and enforceable on them – that is, the result affects the rights and obligations between the parties. ODR’s transparency depends on whether all the procedural steps are disclosed or known to the parties, the arbiter or mediator discloses any possible conflict of interest or warrants that no such conflict of interest exists, the decisions are published or made available to the public, and the parties are informed of the legal and factual bases on which a decision or result is founded on.

ODR is generally helpful for consumer as long as the following basic rights are preserved: (i) the consumer’s due process rights (right to be heard, right to a fair and impartial hearing of his or her case); (ii) the proceedings are neither too short or too long; (iii) the requirement of undertaking ODR is not unconscionable; or (iv) the ODR process does not effectively deny the consumer of the right to redress and access to courts.

This post was originally written for a class in Information Technology Law when I was an LLM student at the University of Edinburgh.

ADR makes sense for consumers and businesses

For a consumer, ADR is generally preferable over ordinary litigation because the former costs less and can be resolved quicker. The expense of undertaking lengthy and laborious court proceedings will far exceed any possible favorable outcome since most consumer complaints involve relatively small values.

ADR is useful in those circumstances where: (i) most if not all of the evidence to be presented are documentary in nature; (ii) the facts are not disputed; or (iii) only questions of law or the interpretation of the agreement between the parties are involved. ADR can also be helpful in commercial disputes since the parties are normally sophisticated business entities which normally do not see dispute settlements as ends in themselves but as a natural consequence of doing business. In other words, the main goal of companies is to engage in business and not engage in non-profitable and distracting litigation. Thus, commercial entities would rather have the matter resolved quickly so that they can get on with businesses. Most multinational companies who are engaged in transnational or global transactions prefer to resolve conflicts between and among themselves through ADR since it makes more business sense to do so.

This post was originally written for a class in Information Technology Law when I was an LLM student at the University of Edinburgh.

A case when mere writing of a computer virus results in an offence

The Computer Misuse Act (CMA) prohibits the unauthorized modification of the contents of any computer, which includes the introduction of viruses . In general, the gravamen of the crime is the introduction or spreading of the virus into a computer. The mere writing of a computer virus is not a crime. However, it may be possible that the mere writing of a computer virus will result in a Section 3 offence. An example of this is when a employee writes the code of a self-executing computer virus from scratch onto his office computer which is connected to the office network. In this specific situation, the mere writing or coding of a computer virus is tantamount to the spreading of the same.

The crime of “unauthorized modification of the contents of any computer” doesn’t just cover the spreading of viruses to cause damage but also makes it a crime to: (i) change the data on any computer without authority (e.g., students hacking into a system to change their grades); (ii) installation of spyware; (iii) installing DRM/TPM software without consent of the user; (iv) unethical websites hijacking your browser (e.g., changing your home page) or installing a browser tool bar without your authorization; (v) installing any client side software without your consent (technically,  even the installation of website cookies can be illegal).

With respect to updates to the CMA, experts mainly recommend the criminalization of Denial of Service Attacks and increasing of the imposable penalties. The most important reform to cybercrime may be those that promote better enforcement and prosecution through mutual cooperation between nations.

This post was originally written for a class in Information Technology Law when I was an LLM student at the University of Edinburgh.