Computer Law Commons^™

Reducing Inconsistency In Udrp Cases, David Wotherspoon, Alex Cameron

Canadian Journal of Law and Technology

The UDRP has proven to be an effective means of resolving domain name disputes. There are, however, a number of shortcomings in the UDRP that affect its legitimacy and fairness. The most glaring of these lies in the failure to delineate the elements outlined in section 4(a) of the UDRP and in the application of Rule 15(a) of the Rules for Domain Name Dispute Resolution Policy (the ‘‘Rules’’).4 These shortcomings have resulted in inconsistency in the decisions of arbitral panels. As it stands, complainants are unable to ascertain the case they must meet in order to succeed and respondents are …

Information Technology Transactions: Business, Management And Legal Strategies By Dunca Card (Toronto: Carswell, 2002), Michael E. Deturbide

Canadian Journal of Law and Technology

Although a number of Canadian books have appeared over the past few years addressing the legal issues that have arisen with the explosion in information technology, few have highlighted the practical implica- tions that these legal issues have in technology transac- tions. Duncan Card’s new book, Information Tech- nology Transactions: Business, Management and Legal Strategies, tackles these issues from a practical perspective that will be useful, as the title suggests, to both lawyers and management.

Letter From The Editor, John Joseph Meadows

Richmond Journal of Law & Technology

On behalf of the Editorial Board and the entire staff, welcome to this second issue of our Ninth Volume for the Richmond Journal of Law & Technology. This issue consists of four pieces and we are excited to present such a wide range of topics.

Is There Judicial Recourse To Attack Spammers?, Ashley L. Rogers

Vanderbilt Journal of Entertainment & Technology Law

This Note will discuss the issue of non-commercial spam through the prism of a case recently decided by the California Supreme Court, Intel v. Hamidi. Until recently there was no federal regulation for unwanted electronic communication and common law was the only potential solution. Part I of this Note will discuss the nature of spam, focusing on the distinction between commercial e-mail and bulk e-mail and the importance therein. Part II will detail the history and the legal doctrine of trespass as it applies to the Internet. Part III will summarize the case of Intel v. Hamidi as it struggled …

Digital Architecture As Crime Control, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

This paper explains how theories of realspace architecture inform the prevention of computer crime. Despite the prevalence of the metaphor, architects in realspace and cyberspace have not talked to one another. There is a dearth of literature about digital architecture and crime altogether, and the realspace architectural literature on crime prevention is often far too soft for many software engineers. This paper will suggest the broad brushstrokes of potential design solutions to cybercrime, and in the course of so doing, will pose severe criticisms of the White House's recent proposals on cybersecurity.

The paper begins by introducing four concepts of …

Cross Border E-Commerce And The Gst/Hst: Towards International Consensus Or Divergence?, Keith R. Evans

Canadian Journal of Law and Technology

In February 2001, the OECD issued a draft report on ‘‘Consumption Tax Aspects of Electronic Commerce’’. The purpose of this report was to seek comments on Working Party No. 9’s conclusions and recommendations in respect of the approach to be taken on the application of consumption taxes to e-commerce in light of the Ottawa Taxation Framework Conditions. The 1998 Conditions called for the taxation principles that applied to traditional commerce to be the guide for the taxation of e-commerce, to ensure non-discriminatory tax treatment of electronic commerce transactions. In November 2001, the Canada Customs and Revenue Agency (‘‘CCRA’’) issued its …

Fragmented Copyright, Fragmented Management: Proposals To Defrag Copyright Management, Daniel Gervais, Alana Maurushat

Canadian Journal of Law and Technology

The collective management of copyright in Canada was conceived as a solution to alleviate the problem of inefficiency of individual rights management. Creators could not license, collect and enforce copyright efficiently on an individual basis. Requiring users to obtain permission from individual copyright holders for the use of a work was equally inefficient. Collectives, therefore, emerged to facilitate the clearance of rights between creators and users. Even with the facilitation of collectives in the process, clearing rights remains an inherently difficult and convoluted process. This is especially so in the age of the Internet where clearing rights for multimedia products …

Vol. Ix, Tab 46 - Ex. 7 - Email From Jeff Dean To Google, Jeff Dean

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Technology Law, J. Douglas Cuthbertson, Glen L. Gross

University of Richmond Law Review

No abstract provided.

The Personal Information Protection And Electronic Documents Act: A Comprehensive Guide By William Charnetski, Patrick Flaherty And Jeremy Robinson (Toronto Canada Law Book Inc., 2001), Teresa Scassa

Canadian Journal of Law and Technology

The Personal Information Protection and Electronic Documents Act: A Comprehensive Guide (the Guide) is the second book to be published in English in Canada dealing expressly with the Personal Information Protec- tion and Electronic Documents Act (PIPEDA). The Guide is different from the earlier work, in that it is not a section by section discussion or annotation of the provisions of PIPEDA. Rather, it is organized into eight chapters, each addressing a distinct theme or topic. The Guide is also aimed at a more professional audience than the earlier work. In its introduction, and in its choice of content, it …

Solving Legal Issues In Electronic Government: Jurisdiction, Regulation, Governance, John D. Gregory

Canadian Journal of Law and Technology

This paper looks at who can be governed, what can be governed, and how it can be governed in an electronic world. Whether law aims to be enabling (i.e., confirming the ground rules and the legal effectiveness of general conduct) or normative (i.e., imposing standards of conduct on more or less willing subjects), the new media presents difficulties for its rational evolution.

These are distinct questions from those raised by government online. Electronic service delivery issues tend to focus on how government can carry on its traditional programs using electronic means and how the law can support it in doing …

The Patriation Of .Ca, Gregory R. Hagen, Kim G. Von Arx

Canadian Journal of Law and Technology

Country code top level domains (‘‘ccTLD’’s), such as .ca, are distinct from generic top-level domains (‘‘gTLD’’s), such as .com, in that they are generally conceived to be associated with a specific country. In Canada, the authority to operate the technical functions of the .ca domain name registry has been delegated to the Canadian Internet Registration Authority (‘‘CIRA’’) by a United States non-profit corporation, the Internet Corporation for Assigned Names and Numbers (‘‘ICANN’’). The authority to make policy regarding the .ca has purportedly been delegated to CIRA by the Government of Canada. There is an issue, however, as to whether ICANN’s …

The New Singapore Domain Name Dispute Resolution Policy: The Context Of The Common Law And Icann's Udrp, Richard Wu

Canadian Journal of Law and Technology

In this article, I will analyse the salient features of the Policy and evaluate the extent to which they match international practice. I will focus, in particular, upon the Uniform Domain Name Dispute Resolution Policy (UDRP) and the rules made under the UDRP. The Internet Corporation for Assigned Names and Numbers (ICANN), the international body responsible for domain name management, adopted both in 1999. As the nature of domain name disputes and dispute resolution rules are very similar in different countries, domain name disputes are becoming a global phenomenon, leading to the development of a kind of ‘‘Internet common law’’. …

Global Trecs: The Regulation Of International Trade In Cyberspace, J. Steele

Canadian Journal of Law and Technology

This paper provides an overview of trade-related aspects of electronic commerce, and examines three approaches for regulating international trade in cyber- space. A model which integrates these approaches is then proposed, emphasizing private standards of self-regula- tion within a broader public framework of minimal background standards. A summary of potential areas of conflict between competing regulatory approaches fol- lows, and the paper concludes that both the WTO and the OECD have important roles to play in the develop- ment of international consensus towards a harmonized framework for the regulation of global TRECs.

M-Commerce: The Notion Of Consumer Consent In Receiving Location-Based Advertising, Eloïse Gratton

Canadian Journal of Law and Technology

The development of location-based advertising, for all its convenience and usefulness, introduces new and heightened privacy risks for consumers that must be addressed. The portability of wireless devices and the ubiquity of their applications, coupled with an ability to pinpoint the location of wireless users and reveal it to others, could produce a system where the everyday activities and movements of these users are tracked and recorded. Wireless users would receive unanticipated advertising messages on their wireless device, commonly referred to as ‘‘wireless spam’’, generally considered a form of privacy violation.

In order to obtain a valid consent from the …

Open Source, Open Arms: An Open-Ended Question, Alana Maurushat

Canadian Journal of Law and Technology

This paper is structured to address several aspects and challenges to the open source movement. Beginning with an outline of the historical and cultural components of the open source movement, the paper will move on to explore the economic and philosophical underpinnings of intellectual property. It will be demonstrated that open source finds itself uniquely situated within these theories and doctrines. The questions that open source poses for intellectual property will then be examined. My arguments will stem from the general premise that open source is threatened by three mechanisms: the uncertainty of the validity of open source licenses, potentially …

Collective Management Of Copyright And Neighbouring Rights In Canada: An International Perspective, Daniel J. Gervais

Canadian Journal of Law and Technology

In this paper, we will compare the current Canadian framework and activities of Collective Management Organizations with the situation in a number of other major countries and suggest possible improvements to the current regime. The comparison will focus first on the general legal background for collective management and, second, on issues specific to the digital age. The paper only addresses some of the specific issues raised by the 1996 WCT and WPPT.

Book Review: Privacy Law In Canada By Colin H.H. Mcnairn And Alexander K. Scott, Anne Mussett

Canadian Journal of Law and Technology

Privacy Law in Canada is a 360-page work that broadly covers legislation at both the federal and provin- cial level, and criminal and civil liability for privacy intru- sions in the context of case law from across Canada. Particular focus is given to privacy issues associated with the workplace, personal health information, technolog- ical surveillance, and protecting consumers and debtors. The authors take a practical approach in examining chal- lenging questions, such as whether a consumer’s consent is required to obtain a credit report; disclosure of med- ical information; monitoring an employee’s computer use and voice mail; how the PIPEDA …

Solving Legal Issues In Electronic Government: Authority And Authentication, John D. Gregory

Canadian Journal of Law and Technology

This article is an overview of some of the legal themes and issues faced by governments in the electronic age, with particular regard to their own operations: electronic service delivery and the administration of government itself.

Electronic government is the performance of any function of government using electronic records and electronic communications. It may involve, in the language of the Uniform Electronic Commerce Act, ‘‘us[ing] electronic means to create, collect, receive, store, transfer, distribute, publish or otherwise deal with documents or information.’’ The term thus covers the provision of governmental services to the public, including commu- nication from the public …

Le Droit De Faire Jouer La Radio En Public, Ou La Petite Histoire D'Une Drôle D'Exemption, René Pépin

Canadian Journal of Law and Technology

L’article 69 de la loi canadienne sur le droit d’auteur prévoit qu’aucun montant n’est exigible d’une personne qui utilise en public un appareil radio, pourvu que ce soit fait dans un endroit, tel un commerce ou un restaurant, où le public est invité à se rendre sans qu’il lui soit chargé un prix d’entrée. Plusieurs pays ont une disposition semblable dans leur législation en matière de droit d’auteur. Cela évite que les détenteurs de droits d’auteur sur des pièces musicales, ou les compagnies de disques, prétendent que le propriétaire de l’appareil radio se trouve à «représenter publiquement» ou à «exécuter …

Litoral: A New Form Of Defamation Consciousness, Kim Von Arx

Canadian Journal of Law and Technology

With the Internet, quickly becoming ubiquitous, the question arises: how does the Internet, and more specifi- cally computer-mediated-communication (CMC), affect people’s lives?

This paper will explore CMC in the Western world as an instance of Walter J. Ong’s notion of secondary orality. It will seek to determine whether the proposed shift in communicative and social consciousness elimi- nates the need for the common law distinction between libel and slander in the online communication environ- ment. The paper is divided into three parts. In the first section, the elements of primary orality and the shift of consciousness from a primary oral …

Don't Shoot The Messenger! A Discussion Of Isp Liability, Andrew Bernstein, Rima Ramchandani

Canadian Journal of Law and Technology

In today’s world of rampant networked communica- tion, the Internet Service Provider (‘‘ISP’’) finds itself in a uniquely vulnerable position. As the conduit through which content is disseminated to a numerically and geo- graphically vast audience, the obvious legal risk to ISPs is that those who provide content will do so in a way that attracts legal liability. Like many communications prov- iders (such as publishers or broadcasters), the ISP may have to assume some responsibility for simply providing the means of transmitting content. In some cases, the ISP is more actively involved in the transmission or is know- ingly …

Vol. Ix, Tab 41 - Ex. 5 - Google Advertising Policy Review, Google

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Big Media: Its Effect On The Marketplace Of Ideas And How To Slow The Urge To Merge, 20 J. Marshall J. Computer & Info. L. 247 (2002), Donald R. Simon

UIC John Marshall Journal of Information Technology & Privacy Law

"The free flow of information is the life-blood of democracy." Americans are experiencing many media corporate mergers in recent years, and one is likely to ponder whether the idea of "marketplace of ideas" still holds true. In this article, the author discusses how economically driven censorship of journalism is blinding the public by market concentration and cross-ownership of media corporations. The fears of the Founding Fathers still lurk in the background as James Madison wrote: "a popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both." …

An "Opposition" To The Recently-Proposed Legislation Related To Business Model Patents, 20 J. Marshall J. Computer & Info. L. 397 (2002), Gregory J. Maier, Thomas J. Fisher, Philippe J. C. Signore

UIC John Marshall Journal of Information Technology & Privacy Law

The authors in this article review the history of the business method exception before and after the State Street Bank case. In that case, the Court of Appeals for the Federal Circuit decided that there was no business method exception, and never had been. The court pointed out that previous decisions were decided on other grounds found in the statutes. The authors argue that, because of the timing and economic environment of the decision, the case gained much popularity and discussion. However, the patent law has not changed since then and the business method exception is still not a patentable …

Windows Xp: Another Court Battle For Microsoft?, 20 J. Marshall J. Computer & Info. L. 193 (2002), Sara Stocky, Reuven R. Levary

UIC John Marshall Journal of Information Technology & Privacy Law

Microsoft Windows XP's possible antitrust violations are addressed in relation to the U.S. v. Microsoft court of appeals decision. The aftermath and settlement of the Microsoft case are described. The implications of this case on the Microsoft Windows XP are discussed. Windows XP operating system is analyzed within the antitrust framework. Finally, current events that may affect a Windows XP antitrust case are discussed.

Chemical Claims Drafting After Lubrizol, 20 J. Marshall J. Computer & Info. L. 207 (2002), Caroline Frances Barry

UIC John Marshall Journal of Information Technology & Privacy Law

In Exxon Chemical Patents, Inc. v. Lubrizol Corp. and its companion decision, the US Court of Appeals for the Federal Circuit held that a chemical composition claimed in an ingredient-based form is not infringed when there is interaction between the ingredients after they have been combined so as to later either their quantity or their chemical form. This article discusses the impact of the decisions on chemical drafting of chemical inventions. The author argues that the decisions were wrongly decided. Furthermore, the author proposes an amendment to the Patent Act to allow ingredient-based claiming to continue to be used and …

The “Magic Lantern” Revealed: A Report Of The Fbi’S New “Key Logging” Trojan And Analysis Of Its Possible Treatment In A Dynamic Legal Landscape, 20 J. Marshall J. Computer & Info. L. 287 (2002), Neal Hartzog

UIC John Marshall Journal of Information Technology & Privacy Law

"You already have zero privacy anyway. Get over it." With the FBI's new stealth surveillance tool, the "Magic Lantern," this quote is an understatement. This article takes reader through a revealing journey of how the FBI, under the authority of the USA Patriot Act, conducts surveillance by using the most advanced technology such as the "Magic Lantern" and "Carnivore." The author first explains how these invisible keystroke logging software/worm/Trojan horse functions in acquiring the information for the FBI constantly and consistently over the Internet. Undoubtedly, the extend of individual's privacy invasion would be pervasive. Hence, the author discusses the constitutionality …

Face Recognition Technology: The Potential Orwellian Implications And Constitutionality Of Current Uses Under The Fourth Amendment, 20 J. Marshall J. Computer & Info. L. 321 (2002), Robert H. Thornburg

UIC John Marshall Journal of Information Technology & Privacy Law

Did you smile at the 2001 Super Bowl at Tampa's Raymond James Stadium? Hope you did because the facial recognition cameras certainly got your smile, applause, disappointment and kisses in that great American sports night. If you missed your 15-second of fame, try it again at the Salt Lake City Winter Olympics. With the use of facial recognition technology at the 2001 Super Bowl and Salt Lake City Winter Olympics, the author seeks to explore the use of this facial recognition technology. He further discusses the constitutionality of it under the Fourth Amendment. In doing so, he analyzes how facial …

Transnational Evidence Gathering And Local Prosecution Of International Cybercrime, 20 J. Marshall J. Computer & Info. L. 347 (2002), Susan W. Brenner, Joseph J. Schwerha Iv

UIC John Marshall Journal of Information Technology & Privacy Law

By analyzing two high-profile cybercrime cases, the authors discuss legal and procedural issues involved when gathering evidence across national borders. In US v. Gorshkov, the FBI was asked to investigate a series of intrusions into the computer systems of businesses in the US from Russia. The second incident is when system administrators at the Rom Air Development Center at Griffis Air Force Base in New York discovered hackers had installed password sniffer programs on all system networks. One of the hackers was identified to be a British citizen. The first thing to start a transnational evidence gathering is to determine …