Saturday 16h00 [Video]

Moderator: Philippa Lawson

Speakers:

• Art Cockfield, Developments in Canadian Privacy Law
• Jonathan Weinberg, RFID Tags and Privacy Law

Nope, no notes on this one. it was good though. The Canadian privacy landscape is a weird one, but it’s better than having none I guess. I still feel statutory damages would really help this body of laws to get credibility though since actual losses are so hard to measure.

The RFID could modify the very concept of fungible goods. With Walmart imposing the use of RFID by it’s suppliers, there are just too many good things about that technology to prevent it from becoming widespread. Now will someone make a cue:CAT to read them?

Saturday 13h45 [Video]

Moderator: Michael Geist

Speakers:

• Ian Kerr, People Like Us
• Dan Hunter, Cyborg and Virtual World

This panel was very different from the rest of the symposium. It left me in a very meditative and dreamy state, due to both the topics and the schedule. Far fetched in many ways, but I always feel far fetched theories and hypothesis is what helps me to test my ideas in the field of cyberlaw. Therefore I feel it provided very good food for thoughts.

DH: The young inventor and the emperor of China: in compensation for the game of chess, the inventor asked for 1 grain of rice, doubled on each square.

Moore’s law: transistor density, the singularity…

Possibility of digital buddies.

Californication of commerce: various application of AI in ecommerce.
Aristotle, Descartes, Babbage/lovelace

Gilbert Ryle, Norbert Weiner, Turing, Deep blue, Kurzweil, Weizenbaum (Eliza)

Nativeminds.com and Nicole.

ELLEGirlBuddy (smarterchild/activebuddy)

Marketing push to create word of mouth/relationship. Virtual trust, virtual frienship.

Concerns: consumer law: truthful information, complete information, privacy implications.

An approach might be translating what we know about psychology into machine language and use that to obtain info about someone.

 Saturday 11h45 [Video]

Moderator: Jane Bailey

Speakers:

• Richard Gold, « The Reach of Patent Law and Institutional Competence »
• Jonathan Zittrain, Writing the Rules of War Between Free and Proprietary Software

RG: Patent and biotech. Talking of jurisdiction issues over questions of patent eligibility.

Don’t confuse eligibility, applicable to a class of inventions, with patentability, applicable to a particular invention.

Theories:

• It is question statutory interpretation only

  Hinges on the interpretation of « invention »: cannot limit to eligibility to what is known because then it’s not an invention

  Therefore, what is unknown in an invention unless legislature specifically says otherwise. BAD ARGUMENT: confuses a particular invention with type of invention.

• It is a technical and morally neutral

  To refuse a patent would be futile because in itself would not stop the invention bieng put to practical use.

  Patents may lead to accountability and spillover effects

  The very fact of allocating property rights alters the burden of persuasion re: limitation on use of invention

  Patents may provide holders with power over non economic decisions.

• It is essential to promote innovation. Courts should withold patents only when legislation specifically restricts it.

  Starting principle is that knowledge ought to be free unless a good reason exists to put it under private control.

  Lack of empirical evidence showing that patents actually encourage innovation and dissemination.

Example given using the reaction to the Harvard mouse.

JZ.

JZ is not behind the podium, he prefers to do his stuff standing in front. Just watch the video, he is, as always, a great speaker.

Today’s fire: free and proprietary software.

Software: lowers the barrier of entry for « inventors » (and explains bad software).

Taxonomy of software:

• Public domain
• Free (copyleft)
• Proprietary.

Analogy of the models using a cake/recipe metaphor. Software: it’s a cake, you eat it and it’s good.

But the recipe is usually given for public domain cakes. You always get it for Free cakes. Most often not for proprietary software (they could give you the recipe though and say if you do anything wth it you go to jail).

Licence terms: nope for public domain. Free: GNU licence. JZ give a How do deal with RMS 101. Viral threath, way overplayed: if you include GPL by accident, you never agreed to it, it’s only infringement and the viral clauses don’t apply to your proprietary code. Proprietary: well.. you all know how this goes.

SCO v. IBM.

Things at stake:

• 1. Free software is a way of producing social benefit. Not universal, but it matters in many areas. Yet because of work for hire agreements, there might be unvanted contamination.
• 2. Free software is too tasty a target for lawyers. e.g. easier to audit free software than proprietary software when stolen code is hidden.
• 3. Comparative IP and cyberlaw.
  Many people are trying to choose between linux and MS in LDCs. Or Linux and pirated MS. Attempt by MS and others to kill Free software so they don’t have to compete with it.

Saturday 10h15 [Video]

Moderator: Jane Bailey

Speakers:

• Joel Reidenberg , States and Internet Enforcement
• Jennifer Chandler , Internet Security

JC: Was infected by Blaster. It required no positive action by user: passive failure to patch.

Monetary losses from a general point of view, loss of confidence in a supposedly efficient system. 200 billion US$ is a figure often quoted for damages caused by security failures.

Not merely economic losses: also a problems when it affects critical infrastructure. e.g. power plants

Possibiliy of censorship on unpopular sites via DOS attacks. A risk in a digital democracy. It’s a concern to have: e.g. al jazeera english site during irak war. Hacking? Natural DoS?

She’ll focus on availabilty of ressources, in regard of distributed Dos attacks.

Underlying cause: bad software rushed to marked; users that do not patch, use a firewall, scan for viruses; ISPs that refuse to scan for zombies. The hacker who controls the zombies.

Going after the hackers and the ISPs is not her focus.

From the point of view of end users: patches are poorly written and tend to break stuff. People are weary. Rapid rate of patches. Fake security alerts that try to install trojans. Changes to licensing agreements. It’s an exterrnality problem: there are no consequences for you. It’s too much pain to patch though.

Solutions:

• Fine and disablement from ISP/corporate/school nwtwork.
• Liability of compromised users
• Mandatory automatic updates from MS

Biology analogies: crapware = innoculation to ensure we’re not too dependant on software that can, in the end, never be totally secure. Monoculture = vulnerable.

Liability of software developers:

• The target of DDoS has clean hands.
• The target has damages (usually high profile corp).
• The target has no contract with MS (or other corp).

a) you need a duty of care from the defendant (a duty not to create situations of unsual risk e.g. landlords liable for unsecure premises when there are attacks by 3rd parties).

b) peer economic loss, policy analysis

JR: Malicious code can be good: they offer the opportunity for states to focus on issues of jurisdiction.

The french Yahoo case: the failure by a country to enforce it’s democratically chosen policy is an abdication of it’s duties to it’s citizens.

Code == lex informatica

There has always been a policy injected into the architecture: ARPA and the Internet.

Public reengineering: ex ante automatic enforcment. DRM

.NET passport: collect data from users to manage passwords. MS was able to collect a mass of data. Legal in the US: no one care about privacy in the US. Problem in the EU. MS reengineered the product design.

Successful efforts to get Paypal to refuse to process payment from online casinos

Porn in the US: CIPA. Architecture to enforce policy decision.

Using intermediaries as enforcers: DMCA notice and takedown, going after the money, orders to ISP to block sites.

Worms and viruses have police power. e.g. attacking MS update site. Spam blacklists being shut down by Ddos. Same devices could be used by states.

Tools:

• Electronic border: China’s firewall. Yahoo french border. Indias’s yahoo NG shutdown.
• electronic blocaderestrain violator: interception of packets
• electronic sanctions: actions to shut down/disable

We should aim for the least intrusive device to achieve sanctions: consider magnitude of threat relative to public order. Urgency of the threat. Effectivness of the tool. Identification of the ultimate goal

JZ asks: Should we block ports used by windows networking for example? Should the ISPs be allowed/encouraged to police their networks in that way?

The answer was not as concise and to the point than the question. It is indeed tough to find the sweet spot between end-to-end and attribution of liability (and the defensive measures by potentially liable parties).

Saturday 8h30 [Video]

Moderator: Michael Geist

Speakers:

• Peggy Radin, Property and Contract in the Digital Environment
• Vincent Gautrais, The Colour of Electronic Consent

PR: Regulation by contract, regulation by machines

• 1. legal and policy discourse

  Three streams of legal culture in confluence:

  • Propertization policy: more isn’t better. Too much is as bad as having too little.
    Shouldn’t assume legislative rules are in the common benefit and appropriate
  • competition policy: there is a barrier to market in order to lover barrier to market
  • Free speech: rethoric: commodified content that when propertized… […]

• 2. Court’s ingenious methods to get around the debate.

  Database protection: what is the anticompetitive branch » ebay, verio: invasion of hard drive, and harm and trespass. removing information that you don’t want your competition to get. Using state tord law to construct a database protection doctrine.

  Using contract to extend copyright:
  ProCD: 7th circuit. Not the law outside 7th circuit.
  Clickwrap/browserwrap.
  Which parts of the copyright regime are « default » and waivable. and which are inalienable? Should we impose mandatory rules/inalienable rules?

  We have to consider if treating the property regime as a set of default rule is itself a default rule and if society should consider changing that default rule.

  In a chicago perspective: Blanket non waivability for certain category could be less costly to judicial review of case by case basic. Mandatory arbitration for example.

• 3 cat for attention:
  • 1. waiving legal enforcement
  • 2. human rights
  • 3. rights that are politically weak (most likely to be undercut by interest groups and not protected similarly: e.g. fair use rights)

  The machine control is like an injunction. There is no choice to infringe and then ask for court review. Irreparable harm to recipied will be without recourse.

  DRM will make even non waivable rights irrelevant.

  Plea for limitation on such systems.

VG: my notes here are terrible again…

Ecommerce and contract law are a nascent field of law. There are new laws and new concepts to discover.

Technological neutrality is an unattainable target.

There are precedents in legislative redaction in order to adapt to techonology.
e.g. in the Quebec law, there are many neologisms, new concepts. It’s a law for engineers.

New economy contrats are often illegal. Old contract principles should still apply to electronic environments.

E-consent and legibility:

• The criterias to judge informed consent should be adapted:
  Legibility is different on paper and on screen.
  The relation between lenght of contract and speed of contractual process is disproportionate.

• Ethan Katsh: paper contract is an act. Electronic contract is a process.

E-consent and demonstration of will.

• Different means of expressing consent, both in the physical and digital world.

  Vincent is preaching to the choir.

• The click should be explicit and clearly significant.

In conclusion: the contract should be more formal to compensate the loss of the materiality of paper.
It appropriate to draft standard contracts to be drafted and approved.

The consumer, the weakest party, shoud be protected. The practice of manifesting consent in ecommerce is still problematic. We need to care about the consumer to enhance consumer confidence.

Both participants expressed concern with consumer choice and freedom of contracting.

Friday 15h45 [Video]

Moderator: Elizabeth Judge

Speakers:

• Ruth Okediji, Domestic And International Institutions And The Development Of International Intellectual Property
• Robert Howell, Canadian Copyright Law at the Crossroads: Opportunities Afforded By Cyberspace to Achieve Measures of International Harmonization Within A Traditional Framework

RO: I had never heard of her, but it was clearly my loss. She is an excellent speaker with very interesting ideas.

She exposed the dichotomy in the global scene by developing countries and developed countries interests.

International copyrights policy was generally a consensus of what member states already did in local laws.

TRIPS: radical changes. Changed the balance between authors and public/nations/authors. Restatement of constitutionnal balance that existed. Bargain between public and authors was skewed in favor of authors. The economic implications are far reaching.

In classic trade paragigm (invisible hand theory): free trade from government intervention: weatlh increase. Both for producer and consumer welfare. Hence free trade agreements.

In IP, in order to get the good, you need government intervention. With intangibles, you need government intervention to create wealth, and progress.
In this marketplace, non discrimination principle: equilibrium between consumers and producers. If you have surplus: producer wellfare, not certain if it produces consumer wellfare.

No talks in WSIS about ability to encourage access to consumers using IP.

The shift will create a welfare model focusing on surplus from producer……

There is an inverse correlation between countries having ratified the Wipo internet treaty and the fact that those countries have no Internet penetration at all.

RH: you’ll have to watch the video for this one. My notes don’t make much sense at all.

Friday 14h00 [Video]

Moderator: Elizabeth Judge

Speakers:

• Ann Bartow, Copyrights And Creative Copying
• Abraham Drassinower, Rights Based Approach to
  Copyright

Ann Bartow

Imitation is the sincerest form of felony.

Alan Latman’s position on substantial similarity.

Access lowers requires similarity since Internet gives wide access.

Disincentive to credit inspirational artist.

Little creativity required to copyright, but significant creativity required to differentiate from earlier work.

She did good show of the borderlines cases in similarity. Very lively presentation, so much that I didn’t take many notes as it seemed all very logical and fluid.

Abraham Drassinower

He did his « rights based » speech, similar to the one he gave au Umontreal last fall. Very detailled analysis of authorship. Good thing his paper was included in the program, especially since he mostly read excerpts of his paper. This is actually a good thing since it helps to get an overview of the matter and the nuances are best reflected upon when they are read.

Friday 12h00

Moderator: Declan McCullagh, Technology Journalist, CNET

I was especially pleased by Michael Binder’s presentation on The Network Age. He’s Industry Canada’s Assistant Deputy Minister and, if you ignore the fact that kids playing hula-hoop are apparently related to broadband connectivity, did a good job at outlining the connectivity efforts in Canada, the current challenges and our achievements so far (Korea being smaller that Newfoundland, we’re going well in the broadband area).

The Heritage Canada representatives talked about the questions and issues that are currently being discussed and evaluated. The priorities are the Wipo treaties, access and educational use, photographic works, transition period for unpublished works.

The biggest public policy issues are: balancing interests in the new technological environment, the use of international legal instruments, encouraging new business models, ownership and access of digital works, Intermediaries and copyrights

Friday 10h30 [Video]

Moderator: Daniel Gervais

Speakers:

• Teresa Scassa, Originality and Utilitarian Works: The Uneasy Relationship between Copyright Law and Unfair Competition
• Jessica Litman, Internet Sharing

Teresa Scassa: Copyright on utilitarian works and the impact in Canada.

Unfair competition is alive and well in canada in the copyrights.

The INS case: 2 rival news companies in the US in WW1. One (AP) had reporters overseas. The other was being denied access to front lines by the govt. They copied news from AP bulletins.

The court prefered to separate copyright from unfair competition.

The standard mirrors the canadian test for originality: skills labour and judgement.

Purpose of copyright in Canada: nothing in constitution or the act. In Theberge, the CSC drafted a statement. There are competing views.
Map charts and plans were originally included: not artistic, had to be exclicitly mentionned to include them in litteary works.
« Originality is not copied ».

No copyright in ideas, only in original expression. When the idea is merged with the expression, there is no copyright.

Facts, being copied from the word around us, are not copyrighted.

In the US Compilations can be protected based on originality of the arrangement. Not sweat of the brow.

In Canada: sweat of the brow: if someone want it, it has value, must be protected. Law society decision.

See also Slumber magic, BC jockey club. The Teledirect decision, following feist in the US, reread Slumber Magic. Essentially similar to Feist: the canadian position shifted, away from the protection of facts.

Canadian case law is moving towards unfair competition giving protection to underying facts, especially when there is business rivalry.

Litman: Internet sharing, p2p, facts.

What has arisen from sharing has lessons to teach us when we reflect on how to deal with p2p.

Copyrights was about mass dissemination: it used to have a big cost. therefore the law is designed to channel revenue to distributors. Internet distribution allows to reconsider these assumptions.

Digital sharing is a more efficient distribution mechanism than conventional distribution. Therefore, we should encourage it.

For revision process, the digital ressources are more flexible.

Easy to create. Lots of garbage. Weblogs/participative revision and corrections, Invaluable pool of ressources. Replication/quoting
The driving force is not money then: most of the information is posted by enthousiastic volunteers.
Or not so amateurs: BNA law news by Professor Geist/Politech by Declan McCullagh

The information/expression dichotomy is essential to the existence of a valuable information space.

P2P distribution creates a superior market for the distribution of facts.
Why not try to see if that model can bring some things to the music distribution model.

There are huge costs saving: distribution channels, payola, production costs. Money could be chaneled to paying artists.
Facilitating the sale of copies is not the goal. It’s the means law has choosen to facilitate the goal: wide dissemination of works.

Proposals for revenue generation: EFF, Fisher…
The consumer pay fees for file sharing.

I don’t want the music place to turn into a giant encyclopedia britannica in the sky.

q. (Counsel for CIRA) shoudn’t your model be extended to books? In a internet book club, shoudn’t a person be able to scan the pages and send them to participants?

a. I didn’t get the exact answer.

Friday 8h45 [Video]

Moderator: Daniel Gervais

Speakers:

• Pam Samuelson, Economics and Copyright Law
• Margaret Ann Wilkinson, National Treatment, National Interest and the Public Domain

PS: Economics and copyright law

In the last couple of years, PS started to ask herself why economics analysis had not had the same influence on copyright law as it has had in other fields of the law. It seems to her that IP is a natural field for the economical analysis.

Why does copyright resist being thought lessons by economical analysis? This is odd since copyright in common law tradition is essentially an utilitarian doctrine that is based in economical theory.

The IP system has this role of addressing a public role and providing the assurance that the governement is not the only source of information.

There are sound economical rules:

• The idea separation distinction
• Derivative work right
• Fair use rights etc.

There are questionable rules:

• Protection for personal letters, diaries, lack of registration requirement to facililtate rights clearances, lowered transaction costs
• Termination of transfer rights
• Moral rights
• Agricultural coop and veterans exceptions
• Copyright term extension
• Restoration of foreign copyrights.

Why has economics had so little impact?

• Economists often speak in language that may be inaccessible to policy makers and many lawyers.
• Economists are sometimes interested in studying issues that lawyers and policymakers regard as a waste of time (eg optinmal lenght of patents)
• A complete economics analysis may stop short of policy prescription (lawyers: so where’s the beef?)
• Simplifying assumptions may oversimplify
• There is an imbalance the number of studies of copyrights compared to the quantity of works on patents: patents seemed more important to industrial economy (copyrights were not). NSF funding was granted for patent research at key times and therefore ongoing works build on predecessor’s.
  E.g. in Napster economics experts offered an analysis: no decline in sales, Napster was most likely the cause of an increase of sales, The other experts asserted the opposite: decline of sales, disruptive to music labels efforts of digital distribution.
  The Liebowitz study: over time, decline in sales is indeed likely, yet napster resulted in less of a decline than expected.

Reasons for the pervasiveness of the non economics side of copyrights

• Many practitionners come from the arts world
• Many authors and publishers prefer authors rights rationale for copyrights to the utilitarian rationale (natural right in one’s creation)
• Arent more rights always better? (we wont use the rights we don’t need)
• Hugh Hansen: we will convert copyright atheists and heretics by the sword if necessary.

Policy process

• For 100 y US congress has allowed or invited copyright industry to draft copyright legislation.
• Copyright industrys had more expertise than congress on economics effects of rules
• Public will bear ultimate cost of ever stronger protection but doesn’t have a seat at the table.
• Policy process is skewed in favvor of established industry groups such as MPAA and RIAA.

Public choice problem:

• Major copyright-based firms are well organized and funded with significant common interest in getting stronger protection
• Costs of strong protection are diffuse
• Likely to produce best laws money can buy.

Examples:

• the CTEA of 1998, the Lucy Maud Montgomery act in canada
• DMCA anti circumvention
• States super DMCA
• Berman’s p2p privacy prevention act
• Holling’s consumer broadband and digital tv promotion act
• Eldred

The Challenge to CTEA was based on an economic interpretation of the constitution: congress had no power under constitution to grant exclusive rights without a progress promotion act.

The economic argument: can’t provide incentive to the creation of works in existence. It also maintains substantial transactions costs, it impede development of derivative works and it impede public access

The supreme court didn’t get it:
Only Justice Breyer would have struck the CTEA down on economic and constitutional grounds.
It is interesting since other justices are very interested in economical analysis in other fields but ignored it here.

Good uses of economics:

• protection of semi conductors and chips layouts.
• protection Unoriginal compilation of information

Bad to good uses of copyright:

• Whelan v. jaslow: unless protection for SSO, incentive to create software too low.
• CA v. Altai:
• Sega v. accolade
• Theberge c. Gallerie d’art.

When might economics be helpful?

• input to tegislative decision making
• Input to rule making
• input to interpretation

Why copyright might resist:

• Copyright professionals are not trained
• Copyright industry succesfull to get what they want without economics: sometimes it will help, sometimes not (like with the CTEA)

Conclusion:

• Copyright is profoundly economics.
• Economics may be more influential in the future.
• Public interest organizations may be receptive to take part in the debate.

MAW: National treatment, national interest and the public domain.

What is the public domain? Is it a relevant concept to all aspects of IP? Yes, according to the dictionary of publishing, yet not many example are seen outside of copyrights.

Are the public domain and the information commons synonymous? (Litman)

Is Open source software a part of the public domain?

The patents commons (Reichmann and Uhlir)

Is that an approach that helps to reconcile questions of boundaries? crown copyright in canada, prohibition of the US federal govt holding copyrights.

The public domain ad the domain of fair interaction (Drassinower)

Is the public domaion capable of empirical identification?

• The task of describing the public domain: Pamela Samuelson’s map
• Discussion on various elements that constitute the public domain. You need a common definition to do empirical work here.

Is the notion of public domain a theoretical construct?

• Access model: Open to use by anyone
• Copyright does not provide acess
• Accessible or freely accessible
• Trademark focus on use
• There is a better vehicule to provide access: dopository schemes, access, legislation, Canadian content in broadcasting
• Functional model:
  Active v. passive creation: Reichman and Uhlir’s patent public domain. Public domain software. Focus in an intention to move into that space e.g. by authors/creators wanting to fuel creation of further works\inventions.
  Are we willing to include public access available through collective licensing?

Is the public domain then merely a rethorical device?

• Most likely now. It is a powerful device.
• Etymology: Domain is a property term. Countering property interests in copyright, trademark or patent monopolies.
• Public: Is public domain synonymous with public interest? E.g. Crown copyright: in the public interest but not in the public domain.
• What is the national interest? is the public interest another was of expression national interest? It’s a question concerning mostly Canada and foreign states rather that the US.

Can the public domain play a useful and constitent role in information policy making?

• Yes, we need a multidisciplinary perspective.

Conclusion:

The public domain does not serve well in terms of representing interests, even those of the public, in the IP debate.
Economics rights in copyrights are meants to increase the variety of sources available to satifsy needs. Moral rights in copyrights are meant to increase the indications of authority available to information seekers in order to judge the selection of sources to satisfy information needs.

Questions:

Q. in the 80s, the software industry wanted protection as litterary work. Protection in DOS will go until 2020.
Interms of economical analysis, if we made a mistake in granting protection in software, what would be the consequences of revoking those rights?

A. PS: economists have suggested the current term for copyright is unsuitable for software. @ articles this year published that courts ought to take more into account the length of time since the work was published and allow for more uses, derivatives, preservation and so forth. Eldred has clamped down the availability of constitutional remedies against the copyright law. I encourage the discussion about allowing for a thinner protection for software over time.
The consequences of taking back protection, either on term on scope: it’s possible to grant extensions, it might no be so to take back rights, on constitutional grounds.

Q: on copyright misuse?

A. PS: Brewster at the internet archive want to have a repository of old software. There are copyright issues here, circumvention issues.
At the LOC hearings he argued his point on DMCA exceptions.
Creating an archiving exception seems reasonable enough. It does not repudiate rights yet allows room for use.

Q. The issue of the appropriate unit of analysis: pratial equilibrium or general equilibrium? Rule by rule? e.g. Derivatives as a whole? Granted rights as a whole? Copyright as a whole? IP as a whole?

A. P.S. I don’t mean to endorse the rule by rule approach. A higher level approach would be a good idea

Q. Comment on collective licensing and it’s economical basis?

A. MAW: The tools of analysis are not well developed regarding information management. In collective licensing, the argument of creating a public domain contractually supports the view that a CL creates a space that is reassonably accessible; quasi public domain. Yet often needs of informationd iffer from the possibility to access. I doubt we can create a public domain contractually. That ould require identifying the needs first. I prefer an approach that would offer acces to any information.

PS: we has less experience with CL in the US. But interest is arising, especially in response to P2P sharing. Also for scientific data, databases. Many are hoping that we resist EU style database protection. If we were to go there. Creating contractual commons would them be better than no commons at all.

MAW: it’s the free vs available debate.

Q. Open source is part of copyright. Not the public domain. This was not clear on your chart.

A. PS: yes, I seem them as contiguous with the public domain in a sense that the kind of licensing that allows use in a way compatible with the creation of commons.