Law Commons^™

The Law And Politics Of Ransomware, Asaf Lubin

Articles by Maurer Faculty

What do Lady Gaga, the Royal Zoological Society of Scotland, the city of Valdez in Alaska, and the court system of the Brazilian state of Rio Grande do Sul all have in common? They have all been victims of ransomware attacks, which are growing both in number and severity. In 2016, hackers perpetrated roughly four thousand ransomware attacks a day worldwide, a figure which was already alarming. By 2020, however, ransomware attacks reached a staggering number, between 20,000 and 30,000 per day in the United States alone. That is a ransomware attack every eleven seconds, each of which cost victims …

Technological 'Disruption' Of The Law's Imagined Scene: Some Lessons From Lex Informatica, Margot Kaminski

Publications

Joel Reidenberg in his 1998 Article Lex Informatica observed that technology can be a distinct regulatory force in its own right and claimed that law would arise in response to human needs. Today, law and technology scholarship continues to ask: does technology ever disrupt the law? This Article articulates one particular kind of “legal disruption”: how technology (or really, the social use of technology) can alter the imagined setting around which policy conversations take place—what Jack Balkin and Reva Siegal call the “imagined regulatory scene.” Sociotechnical change can alter the imagined regulatory scene’s architecture, upsetting a policy balance and undermining …

A Regulatory Roadmap For Financial Innovation, Cristie Ford

All Faculty Publications

Private sector innovation – whether it is fintech, biotechnology, the platformisation of the economy, or other developments – is the single most profound challenge that regulators confront today. Financial innovations, which are intangible and fast-moving, are especially challenging. Financial regulators are at the operational front line of making sense of the promise and the risks associated with fintech, and helping to ensure it operates for public benefit.

Faced with such a changeable and fast-moving problem, how can regulators “future proof” themselves?

This chapter outlines a roadmap for financial regulators who confront fast-moving and profound change in their sectors. It argues …

Insuring Evolving Technology, Asaf Lubin

Articles by Maurer Faculty

The study of the interaction between law and technology is more critical today than ever before. Advancements in artificial intelligence, information communications, biological and chemical engineering, and space-faring technologies, to name but a few examples, are forcing us to reexamine our traditional understanding of basic concepts in torts and insurance law.

Yet, few insurance professionals and scholars will identify themselves as working in the field of “law-and-technology.” For many of them, technology is “just a fact about the world like any other,” as Ryan Calo once put it, not one that always merits “special care.”

This short paper is an …

Contracts Formed By Software: When Things Go Wrong, Vincent Ooi

Research Collection Yong Pung How School Of Law

The use of software in contract formation is likely to become increasingly pervasive in light of the digital economy. Consequently, software can also be expected to exhibit greater autonomy and take on increasingly complex transactions and contract negotiations. It is important that a legally coherent, fair, certain and economically justified approach be taken to regulate such contracts.A ‘contracting problem’ arises when software is used to autonomously enter into contracts without human input. The formation of a valid contract requires, inter alia, an agreement between two or more parties, where each party exhibits an objective intention to be legally bound (the …

Cryptocurrencies And Code Before The Courts, Vincent Ooi, Kian Peng Soh

Research Collection Yong Pung How School Of Law

In the rapidly developing cyber sphere dominated by cryptocurrencies and code, it is perhaps not uncommon for firms to focus on cutting-edge technological developments leaving the law behind as an afterthought. B2C2 Ltd v Quoine Pte Ltd (‘B2C2’)1 may serve as a timely reminder of the importance of the legal principles supporting e-commerce and Fintech. In the first case of its kind, B2C2 raised several key questions before the Singapore International Commercial Court (‘SICC’), seeking clarification on how the established legal concepts of breach of trust, mistake and unjust enrichment might apply in the context where an automated contract-forming software …

Contracts Formed By Software: An Approach From The Law Of Mistake, Vincent Ooi

Centre for AI & Data Governance

A ‘Contracting Problem’ arises when software is used to autonomously enter into contracts without human input. Questions arise as to how and whether there can be an expression of an objective intention to be legally bound. This article considers three leading solutions to the Contracting Problem. The ‘Mere Tools Theory’, which views software as ‘mere tools’ of communication, is too harsh as it binds users to any software malfunction. The Agency Approach, which treats software as Electronic Agents, capable of contracting on behalf of their users, is untenable as it ascribes unrealistic characteristics to software. The article submits that the …

2016-2017 Oxford Business Law Blog Round-Up: Most Read Opinion Pieces, Maurice Stucke

Scholarly Works

On 14 March 2017, the Oxford Business Law Blog (OBLB) marked its first anniversary. One year ago, we set out to create a leading and truly international forum for the exchange of ideas and reporting of new developments in business law. Since then, we have published over 530 posts from academics and practitioners from across the world and have reached readers from over 150 countries.

The OBLB is now a firmly entrenched part of the Oxford Law Faculty’s Business Law Hub. The purpose of this collection is to celebrate submissions created especially for publication on the OBLB. As such, this …

Modularity Theory And Internet Regulation, Christopher S. Yoo

All Faculty Scholarship

Modularity is often cited as one of the foundations for the Internet’s success. Unfortunately, academic discussions about modularity appearing in the literature on Internet policy are undertheorized. The persistence of nonmodular architectures for some technologies underscores the need for some theoretical basis for determining when modularity is the preferred approach. Even when modularity is desirable, theory must provide some basis for making key design decisions, such as the number of modules, the location of the interfaces between the modules, and the information included in those interfaces.

The literature on innovation indicates that modules should be determined by the nature of …

Moving Beyond Bitcoin To An Endogenous Theory Of Decentralized Ledger Technology Regulation: An Initial Proposal, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Current regulation of decentralized ledger technology leaves industry actors in confusion, facing high risk, and confronting significant disincentives to innovate. This Article argues that an endogenous regulatory approach offers an avenue for alleviating these obstacles while still providing sufficient tools for government oversight. In particular, this Article proposes regulation that is endogenous at two levels: first, in that it is created through an iterative, cooperative process involving both regulators and industry actors, and second, that it is implemented as regulation-through-code, that is, regulation written into the code itself. In so doing, this Article also investigates whether successful implementation of such …

One Centimeter Over My Back Yard: Where Does Federal Preemption Of State Drone Regulation Start?, Henry H. Perritt Jr.

All Faculty Scholarship

The proliferation of cheap civilian drones and their obvious utility for precision agriculture, motion picture and television production, aerial surveying, newsgathering, utility infrastructure inspection, and disaster relief has accelerated the FAA’s sluggish effort to develop a proposal for generally applicable rules and caused it to grant more than 600 “section 333 exemptions” permitting commercial drone flight before its rules are finalized.

Federal preemption in the field of aviation safety regulation is generally assumed, but political pressure on states and municipalities to regulate drones and the ability of this revolutionary aviation technology to open up space close to the ground for …

Information Overload, Multi-Tasking, And The Socially Networked Jury: Why Prosecutors Should Approach The Media Gingerly, Andrew E. Taslitz

School of Law Faculty Publications

The rise of computer technology, the internet, rapid news dissemination, multi-tasking, and social networking have wrought changes in human psychology that alter how we process news media. More specifically, news coverage of high-profile trials necessarily focuses on emotionally-overwrought, attention-grabbing information disseminated to a public having little ability to process that information critically. The public’s capacity for empathy is likewise reduced, making it harder for trial processes to overcome the unfair prejudice created by the high-profile trial. Market forces magnify these changes. Free speech concerns limit the ability of the law to alter media coverage directly, and the tools available to …

Once More Unto The Breach: An Analysis Of Legal, Technological And Policy Issues Involving Data Breach Notification Statutes, Dana J. Lesemann

School of Law Faculty Publications

Once More Unto the Breach: An Analysis of Legal, Technological, and Policy Issues Involving Data Breach Notification Statutes

Dana J. Lesemann

Companies facing the loss of a laptop or a compromised server have long waged battles on several fronts: investigating the source of the breach, identifying potentially criminal behavior, retrieving or replicating lost or manipulated data, and putting better security in place, to name a few generalized steps. As recently as seven years ago, the broader consequences of a data breach were largely deflected from the party on whose resource the data resided and instead rested essentially on those whose …

Mortgaging The Meme: Financing And Managing Disruptive Innovation, Jon M. Garon

Faculty Scholarship

Traditional financing of innovative companies emphasizes the use of patents and associated intellectual property rights to secure debt and provide assets for valuation. Although the model suffices for incremental innovation, it does not account for investments in disruptive innovation, those that undermine traditional business models, supply chains or industry relationships.

Disruptive innovation can be described as the introduction of a new conceptual idea or meme into an existing system that causes the system to be fundamentally altered. Assembly lines, air conditioning, digital film, and personal computers represent such innovations, all of which led to fundamental paradigm shifts.

The convergence of …

Legal Education In Disruption: The Headwinds And Tailwinds Of Technology, Jon M. Garon

Faculty Scholarship

By harnessing improvements on communications and computational systems, law firms are producing a revolution in the practice of law. Self-help legal manuals have transformed into sophisticated interactive software; predictive coding can empower clients to receive sophisticated legal advice from a machine; socially mediated portals select among potential lawyers and assess the quality of the advice given; and virtual law firms threaten to distintermediate the grand edifices of twentieth century Big Law. These changes may profoundly restructure the legal practice, undermining the business model for many solo and small firm practices.

This paper focuses on the implications of these profound disruptive …

The Self, The Stasi, The Nsa: Privacy, Knowledge, And Complicity In The Surveillance State, Richard Warner, Robert H. Sloan

All Faculty Scholarship

We focus on privacy in public. The notion dates back over a century, at least to the work of the German sociologist, Georg Simmel. Simmel observed that people voluntarily limit their knowledge of each other as they interact in a wide variety of social and commercial roles, thereby making certain information private relative to the interaction even if it is otherwise publicly available. Current governmental surveillance in the US (and elsewhere) reduces privacy in public. But to what extent?

The question matters because adequate self-realization requires adequate privacy in public. That in turn depends on informational norms, social norms that …

Self, Privacy, And Power: Is It All Over?, Richard Warner, Robert H. Sloan

All Faculty Scholarship

The realization of a multifaceted self is an ideal one strives to realize. One realizes such a self in large part through interaction with others in various social roles. Such realization requires a significant degree of informational privacy. Informational privacy is the ability to determine for yourself when others may collect and how they may use your information. The realization of multifaceted selves requires informational privacy in public. There is no contradiction here: informational privacy is a matter of control, and you can have such control in public. Current information processing practices greatly reduce privacy in public thereby threatening the …

E-Elections: Time For Japan To Embrace Online Campaigning, Matthew J. Wilson

Akron Law Faculty Publications

Asia has embraced the Internet and social media. Japan and South Korea rank among the world’s leaders in technological innovation and Internet penetration. China boasts over 420 million Internet users, and other Asian countries have experienced the widespread acceptance of online technologies. With the rapid ascendency of the Internet and social media, however, Asian countries have sometimes struggled with striking the proper balance between individual rights and the legal regulation of online activities. One prime example of such struggle involves the clash between Japan’s election laws and individual political freedoms.

Although Japan generally subscribes to democratic traditions and the principle …

"Smile, You're On Cellphone Camera!": Regulating Online Video Privacy In The Myspace Generation, Jacqueline D. Lipton

Akron Law Faculty Publications

In the latest Batman movie, Bruce Wayne’s corporate right hand man, Lucius Fox, copes stoically with the death and destruction dogging his boss. Interestingly, the last straw for him is Bruce’s request that he use digital video surveillance created through the city’s cellphone network to spy on the people of Gotham City in order to locate the Joker. Does this tell us something about the increasing social importance of privacy, particularly in an age where digital video technology is ubiquitous and largely unregulated?

While much digital privacy law and commentary has focused on text files containing personal data, little attention …

Who Owns "Hillary.Com"? Political Speech And The First Amendment In Cyberspace, Jacqueline D. Lipton

Akron Law Faculty Publications

In the lead-up to the next presidential election, it will be important for candidates both to maintain an online presence and to exercise control over bad faith uses of domain names and web content related to their campaigns. What are the legal implications for the domain name system? Although, for example, Senator Hillary Clinton now owns ‘hillaryclinton.com’, the more generic ‘hillary.com’ is registered to a software firm, Hillary Software, Inc. What about ‘hillary2008.com’? It is registered to someone outside the Clinton campaign and is not currently in active use. This article examines the large gaps and inconsistencies in current domain …

“We, The Paparazzi”: Developing A Privacy Paradigm For Digital Video, Jacqueline D. Lipton

Akron Law Faculty Publications

In January 2009, the Camera Phone Predator Alert bill was introduced into Congress. It raised serious concerns about privacy rights in the face of digital video technology. In so doing, it brought to light a worrying gap in current privacy regulation – the lack of rules relating to digital video privacy. To date, digital privacy regulation has focused on text records that contain personal data. Little attention has been paid to privacy in video files that may portray individuals in inappropriate contexts, or in an unflattering or embarrassing light. As digital video technology, including inexpensive cellphone cameras, is now becoming …

To © Or Not To ©? Copyright And Innovation In The Digital Typeface Industry, Jacqueline D. Lipton

Akron Law Faculty Publications

Intellectual property rights are often justified by utilitarian theory. However, recent scholarship suggests that creativity thrives in some industries in the absence of intellectual property protection. These industries might be called IP’s negative spaces. One such industry that has received little scholarly attention is the typeface industry. This industry has recently digitized. Its adoption of digital processes has altered its market structure in ways that necessitate reconsideration of its IP negative status, with particular emphasis on copyright. This article considers the historical denial of copyright protection for typefaces in the United States, and examines arguments both for and against extending …

Repairing Online Reputation: A New Multi-Modal Regulatory Approach, Jacqueline D. Lipton

Akron Law Faculty Publications

In today’s interconnected digital society, high profile examples of online abuses abound. Cyberbullies launch attacks on the less powerful, often significantly damaging victims’ reputations. Outside of reputational damage, online harassment, bullying and stalking has led to severe emotional distress, loss of employment, physical assault and even death. Recent scholarship has identified this phenomenon but has done little more than note that current laws are ineffective in combating abusive online behaviors. This article moves the debate forward both by suggesting specific reforms to criminal and tort laws and, more importantly, by situating those reforms within a new multi-modal framework for combating …

Law Of The Intermediated Information Exchange, Jacqueline D. Lipton

Akron Law Faculty Publications

When Wikipedia, Google and other online service providers staged a ‘blackout protest’ against the Stop Online Piracy Act in January 2012, their actions inadvertently emphasized a fundamental truth that is often missed about the nature of cyberlaw. In attempts to address what is unique about the field, commentators have failed to appreciate that the field could – and should – be reconceputalized as a law of the global intermediated information exchange. Such a conception would provide a set of organizing principles that are lacking in existing scholarship. Nothing happens online that does not involve one or more intermediaries – the …

Cyberlaw 2.0, Jacqueline D. Lipton

Akron Law Faculty Publications

In the early days of the Internet, Judge Frank Easterbrook famously dismissed the idea of an emerging field of cyberspace law as akin to a “law of the horse”— a pastiche of unrelated legal principles tied together only by virtue of applying to the Internet, having no unifying principles that would teach us anything meaningful. This article revisits Easterbrook’s assertions with the benefit of hindsight. It suggests that subsequent case law and legislative developments in fact do support a distinct cyberlaw field. It introduces the novel argument that cyberlaw is a global “law of the intermediated information exchange.” In other …

Copyrighting "Twilight": Digital Copyright Lessons From The Vampire Blogosphere, Jacqueline D. Lipton

Akron Law Faculty Publications

In January of 2010 a United States District Court granted an injunction against a Twilight fan magazine for unauthorized use of copyrighted publicity stills . No surprise there. Intellectual property laws deal effectively – some would argue too effectively – with such cases. Nevertheless, recent Web 2.0 technologies, characterized by user-generated content, raise new challenges for copyright law. Online interactions involving reproductions of copyrighted works in blogs, online fan fiction, and online social networks do not comfortably fit existing copyright paradigms. It is unclear whether participants in Web 2.0 forums are creating derivative works, making legitimate fair uses of copyright …

Combating Cyber-Victimization, Jacqueline D. Lipton

Akron Law Faculty Publications

In today’s interconnected society, high profile examples of online victimization abound. Cyber-bullies, stalkers and harassers launch attacks on the less powerful, causing a variety of harms. Recent scholarship has identified some of the more salient damage, including reputational harms, severe emotional distress, loss of employment, and physical assault. Extreme cases of online abuse have resulted in death through suicide or as a result of targeted attacks. This article makes two major contributions to the cyber-victimization literature. It proposes specific reforms to criminal and tort laws to address this conduct more effectively. Further, it situates those reforms within a new multi-modal …

Celebrity In Cyberspace: A Personality Rights Paradigm For Personal Domain Name Disputes, Jacqueline D. Lipton

Akron Law Faculty Publications

When the Oscar™-winning actress Julia Roberts fought for control of the domain name, what was her aim? Did she want to reap economic benefits from the name? Probably not, as she has not used the name since it was transferred to her. Or did she want to prevent others from using it on either an unjust enrichment or a privacy basis? Was she, in fact, protecting a trademark interest in her name? Personal domain name disputes, particularly those in the space, implicate unique aspects of an individual’s persona in cyberspace. Nevertheless, most of the legal rules developed for these disputes …

Bad Faith In Cyberspace: Grounding Domain Name Theory In Trademark, Property, And Restitution, Jacqueline D. Lipton

Akron Law Faculty Publications

The year 2009 marks the tenth anniversary of domain name regulation under the Anti-Cybersquatting Consumer Protection Act (ACPA) and the Uniform Domain Name Dispute Resolution Policy (UDRP). Adopted to combat cybersquatting, these rules left a confused picture of domain name theory in their wake. Early cybersquatters registered Internet domain names corresponding with other’s trademarks to sell them for a profit. However, this practice was quickly and easily contained. New practices arose in domain name markets, not initially contemplated by the drafters of the ACPA and the UDRP. One example is clickfarming – using domain names to generate revenues from click-on …

Sharing Public Safety Helicopters, Henry H. Perritt Jr.

All Faculty Scholarship

No abstract provided.