Software-as-a-service – Legal nature: Shifting the existing paradigm of copyright law

Today's business environment is no longer defined exclusively by bricks and mortar. Business models of software distribution are constantly evolving as new technologies develop. Traditional retail versions of software products are mostly replaced with digital distribution of copies of software products. However, these ways of software distribution are by no means exhaustive. Functionality of software is not necessarily tied with provision of the copy of the relevant program to the user. Instead he can receive access to it via the Internet without the need to install software onto his computer. This type of business model received the name “Software-as-a-Service” (SaaS) or, sometimes “Cloud Computing”. The legal nature of relations arising between the user and provider of distant access to such software is subject to considerable debate in Russia. The main problem is that at first glance it resembles the features of various types of contracts, recognized in the Civil Code of Russia, although not falling completely within any of them. At the same time the type of agreement chosen by the parties defines the legal framework, which governs relevant relations and relevant tax consequences. This article aims to analyze the nature of existing relations between the user and SaaS-provider and to define whether it can be characterized as a license, service, lease or some kind of sui generis contract. Based on the analysis the author comes to a conclusion that as delivery of copies of software becomes less and less relevant for the software industry, due to the new business models implemented by vendors, the rights to use the particular copy of software around which the traditional copyright regime has been built, become more and more superseded with the right to access such software. Thus traditional contractual models developed for IP distribution (license agreements, assignment agreements) and, more generally, the legal framework of existing copyright law that is centered on the core idea of the “use” of the copy, are no longer adequate regulators in the digital era where remote access to objects of copyright will soon start to dominate.     

Legal aspects of text mining

“Text mining” covers a range of techniques that allow software to extract information from text documents. It is not a new technology, but it has recently received spotlight attention due to the emergence of Big Data. The applications of text mining are very diverse and span multiple disciplines, ranging from biomedicine to legal, business intelligence and security. From a legal perspective, text mining touches upon several areas of law, including contract law, copyright law and database law. This contribution discusses the legal issues encountered during the assembly of texts into so-called “corpora”, as well as the use of such corpora.     

The “process” of patenting: Why should we care about a potential U.S. Supreme Court decision in Bilski v. Doll?

In Bilski v. Doll, the U.S. Supreme Court is called to define one of the categories of patent-eligible subject matter, “process” patents. In 2008, the Court of Appeals for the Federal Circuit held that the category has a narrow meaning, and that to be eligible for a process patent under 35 U.S.C. § 101, the invention must involve a machine or apparatus or involve a transformation to a different state or thing, ultimately rejecting the patent application as unpatentable subject matter. The patent applicants have asked the U.S. Supreme Court to determine two issues: first, the meaning of “process” in 35 U.S.C. § 101 and whether the lower court properly relied on a “machine-or-transformation” test, and second, the test's potential conflict with 35 U.S.C. § 273, which provides protection for “method[s] of doing or conducting business.” The Court's decision could change the way that research and business are done, and patent protection for such investments. Parts 1 and 2 of this article address Bilski directly and what is and is not in dispute. Part 3 addresses the “machine-or-transformation” test, while Parts 4 and 5 address reasons not to adopt such a test.     

The public health implications of United Kingdom offender healthcare policy: a holistic approach to achieve individual and societal gains

In 2009, two seminal documents were published by the United Kingdom (UK) government concerning healthcare services for offenders. The Bradley review into diversion for people with mental health problems and learning disabilities emphasised a need to improve offender health, not least because of the high economic costs to society as a whole resulting from unresolved mental illness, physical ill-health and substance abuse problems commonly experienced by offenders. The Bradley review made wide-reaching recommendations for change, requiring strong partnership between health and justice agencies at both central government and local levels. A framework for the delivery of Bradley's recommendations has been set out in Improving health, supporting justice, the Department of Health's offender health strategy which sets out the direction of travel for the next 10 years.This paper discusses the reality of working toward improving health services for this marginalised group in the context of the influence of the current straitened financial climate on the allocation of resources to publically funded healthcare in the UK; it examines the historically based, and widely held, belief in the principle of “less eligibility” within our society, whereby there is much public and media resistance to allocating resources to improving care for offenders when other, more “deserving”, groups are perceived to be in continuing need.     

Rethinking the one-stop-shop mechanism: Legal certainty and legitimate expectation

This paper aims to contribute to the discussion concerning the one-stop-shop mechanism proposed in the General Data Protection Regulation (hereinafter “GDPR”). The choice of regulation as the instrument to legislate on data protection is already an unmistakable indication that unification and simplification (together with respect of data subjects' interests) shall be the guide for every legal discussion on the matter. The one-stop-shop mechanism (hereinafter “OSS”) clearly reflects the unification and simplification which the reform aims for. We believe that OSS is logically connected with the idea of one Data Protection Authority (hereinafter “DPA”) with an exclusive jurisdiction and that this can only mean that, given one controller, no other DPA can be a competent authority.² In other words, OSS implies a single and comprehensive competent authority of a given controller. In our analysis we argue that such architecture: a) works well with the “consistency mechanism”; b) provides guarantees to data subjects for a clear allocation of powers (legal certainty); and c) is not at odds with the complaint lodging procedure. Our position on fundamental questions is as follows. What is the perimeter of competence of the DPA in charge? We believe that it should have enforcement power on every issue of the controller, including issuing the fines. How to reconcile such dominant role of one DPA with the principle of co-operation among DPAs? We do not consider co-operation at odds with the rule that decisions are taken by just one single authority. Finally, we share some suggestions on how to make the jurisdiction allocation mechanism (the main establishment criterion) more straightforward.     

A Critical Examination of the “White Victim Effect” and Death Penalty Decision-Making from a Propensity Score Matching Approach: The North Carolina Experience

Purpose

Death penalty research has rather consistently demonstrated a statistically significant relationship between defendant race and victim race in general, and for the Black defendant/White victim race dyad specifically. The bulk of this evidence has been derived from correlational studies and from cases over relatively condensed time frames.

Methods

The current study uses data from North Carolina (n = 1,113) over several decades (1977–2009) to evaluate the link between defendant/victim racial dyad and jury death penalty decision-making.

Results

Results suggest that there is an apparent “White victim effect” that can be observed in death penalty decision-making in traditional logistic regression models. Yet, once cases are matched via propensity score matching on approximately 50 case characteristics/confounders including the type of aggravators and mitigators accepted by the jury in addition to the number of aggravators and mitigators accepted, the relationship is rendered insignificant. Furthermore, these results hold for a defendant of any race killing a White victim and for the “most disadvantaged” situation for Black defendants (e.g., cases with White victims).

Conclusions

The “White victim effect” on capital punishment decision-making is better considered as a “case effect” rather than a “race effect.”     

The retention of personal information online: A call for international regulation of privacy law

New technologies permit online businesses to reduce expenses and increase efficiency by, for example, storing information in “the cloud”, engaging in online tracking and targeted advertising, location and tracking technologies, and biometrics. However, the potential for technology to facilitate long term retention of customers' personal information raises concerns about the competing right of individuals to the privacy of their personal information. Although the European Commission has recently released a proposal for regulation to “provide a data subject with the right to be forgotten and to erasure”, neither the OECD Privacy Guidelines nor the APEC Privacy Framework includes any requirement to delete personal information. While New Zealand includes a “limited retention principle” in the Privacy Act 1993, apart from one limited exception the privacy principles cannot be enforced in court. Taking New Zealand privacy law as an example, this paper examines the issue of retention of customer data, explains why this is a serious problem and argues that although it could be addressed by appropriate amendments to domestic laws, domestic privacy legislation may not be sufficient in an online environment. In the same way as other areas of law, such as the intellectual property regime, have turned to global regulatory standards which reflect the international nature of their subject matter, international privacy regulation should be the next stage for the information privacy regime.     

“Opt in” and “opt out” mechanisms in the internet era – towards a common theory

In order to provide for adequate legal protection mainly in mass-transactions on the internet, both the legislature and private parties increasingly, resort to so-called “opt in” and “opt out” mechanisms. Whether or not an “opt in” or an “opt out” mechanism is used is often decided on a case-by-case basis. The same is true regarding the circumstances under which private parties are or should be allowed to resort to “opt out” mechanisms, and if so, what restrictions should safeguard the free will of the addressees of such mechanisms. This paper argues that the existing “opt in” and “opt out” schemes should not be regarded and discussed as isolated phenomena. Rather, they should be analyzed from the viewpoint of a common underlying legal theory which builds on the common character of the underlying regulatory structure of all “opt in” and “opt out” schemes. This requires a complex matrix which comprises not only the opposites of “in” and “out”, but also of “active” and “inactive”, of “preference” and “non-preference” for the respective default rules, as well as of “ex ante” and “ex post” enforcement of the law. It also involves normative, economic, psychological and, last but not least, technical issues.     

TMT contracts: Avoiding termination and achieving positive realignment: How legal counsel can make a difference - A UK perspective

“The task of a leader is to get his people from where they are to where they have not been” Henry A. KissingerWith stuttering growth in the Western economies where major sourcing and TMT (Technology, Media & Telecoms) contracts are pervasive, it is perhaps not surprising that internal and external legal counsel are increasingly being called upon to advise clients on termination options and strategies to effect or oppose a threatened termination for breach of contract. This short paper considers why this has happened and the other factors which are in play which have meant that advice on termination and the renegotiation of contracts in this context has become more common. Expertise in this area is part of an IT lawyer’s tool kit and we consider that this is an area where internal and external legal counsel can make a substantial difference in delivering solutions to their clients.In this paper I talk about termination and renegotiation interchangeably. The reason for this as will become clear is that all forms of termination, whether they are consensual or contested, will involve some form of renegotiation of the terms of the contract between the parties. This is because it is almost impossible except perhaps in the simplest of installations to predict the nature in which a supplier or a customer may wish to change the services provided, and consequently even the most carefully crafted of exit and transition clauses, schedules and plans will require some form of post-contract negotiation between the customer, the outgoing supplier and potentially a new supplier or suppliers. This will necessarily involve some form of renegotiation of the terms of the contract between the parties.This paper looks at renegotiation in the context of a termination scenario rather than dealing with renegotiation during the normal course of operation of the contract.     

A study of criminal justice policymakers' perspectives: The forgotten component in boot camp programs and goals

Does occupation (sheriff, prosecutor, prison administrator, or parole/probation official) influence selection of boot camp components; especially the traditional positions of “punishers,” usually sheriffs and prosecuting attorneys, and “reformers,” usually prison and probation? As part of a larger study and at the request of the Missouri Department of Corrections, 670 questionnaires were mailed to all Missouri sheriffs, prosecutors, selected prison administrators, probation/parole staff, all public defenders, selected legislatures, and judges in Missouri. Respondents were asked to rank potential boot camp goals and programs using a Likert-type preferences scale of 1 = low preference to 5 = high preference. Three hundred fifty-three were returned, for a return rate of 53 percent. Using the Missouri survey data, the research question for this article was: Did occupation influence selection of boot camp components? To test the association of occupation with selection, a shorter list was compiled from the Missouri survey data of six typical “punishment” items and six typical “reform” items as selected from the literature. Means and a t-test of significance were calculated. Results showed traditional positions of “punishment” and “reform” did not drive program choices. Preference for “reform” items by all occupations was higher than preference for “punishment” items. Results showed a potential shift away from the early military - punishment style of early boot camps. Correctional agencies thinking of reconfiguring or building new boot camps could use the results as a guide.     

Justifying law: An explanation of the deep structure of American law

Conclusion Charles Darwin argued that human beings are what happen whenphysical laws act upon a planet with the characteristics that earthhad five billion years ago. Similarly, I have argued that theprimacy of individual will is what eventually happens when asociety allocates and limits coercion based upon rights. From timeto time particular visions of the good or the right dominate publicbehavior, but they are eventually enframed by rights — the authoritative claim of each person to respect.I have argued that the propositional structure of American law—the laws themselves — can be seen to be a logically consistentsystem of propositions stemming from the axiom that the will ofeach person is worthy of respect. This is an explanatory, not anormative, proposition. The axiom was not put there by anyoneand the law derived from it, any more than the human brian wasput there and the theory of relativity derived from it. The axiomcame to be embodied in k because of a fact — the single universalcharacteristic of human beings that is relevant to the question ofarranging coercion is individual will — and a process — the right ofeach person to demand a justification for coercion used upon him.Since will is universal to human beings, this would suggest thatany rights-based legal system would evince a general structuresimilar to our own. Particularities of national culture, naturalresources, population density, and so on would produce a verydifferent liberty frontier from the one facing this country andhence, different laws. But the general structure of law — the relationship between principle and policy decision, the role of thebasic rights, and so on — should be similar. This similarity shouldprovide a common basis for cooperation between states, transcending particularities of economic structure, political structure and ideology. We have seen that a very broad range ofeconomic and political institutions may be justified. The essential difference between states lies not in the different ways that theyarrange institutions but in the different ways that they justifythem. Those that justify them to people as persons are similar.Those that justify them by conformity to a design are different.The theory set out here is not a design. It is an explanation. Onevirtue of explanations is that they draw forth other explanations.More importantly, they offer perspective — they tell us what weare up to. As the social relations which law must rationalizebecome ever more complex, perspective becomes ever more necessary. The simple laws have already been written. The connectionbetween the doctrine of consideration and the first principle isobvious. The connection between the hard look doctrine ofreviewing administrative agencies and the second principle isnowhere near so obvious (though it is a lovely example of thejudicial process enframing the realm of uncertainty). The morecomplex and artificial the institution, the poorer the guidance ofintuition and the more necessary are conscious guides to decision.Justification comes easy to printers. Most of them don't knowwhy a page of print that has straight margines left and right isjustified. They don't need to know, for the idea has immediateintuitive appeal; it is easy to accept and to remember, and, onceremembered, it is an effective guide to behavior. It is easy to seethat this line of print is not justified and to do somethingabout it. It is not so easy to tell whether the hard look doctrine orthe enforcement of a surrogate motherhood contract sits fairly on itspage. Justification of law requires an understanding of thecriterion against which it is being done. There is an intuitive core— a sense — to any act of judgment, but that core can be illuminated and developed by an understanding of the framework withinwhich it operates.     

The rule of law online: Treating data like the sale of goods: Lessons for the internet from OECD and CISG and sacking Google as the regulator

The decision of the Court of Justice of the European Union (“CJEU”) in the case of Google Spain SL v Agencia Española de Protección de Datos (AEPD) ² [“the Google decision”] to require Google to enforce a right to be forgotten has caused a furore and sets a dangerous precedent in internet regulation. ³ It is setting up the search engine as a form of Internet Government and fracturing the balance between privacy and freedom of information in the connected world. In a world where we have become attuned to full exposure by routinely signing over access to information, privacy is no longer the issue – the real concern is control. This paper seeks to address the issues of whether we have a right to privacy anymore, who should be making decisions about what is available and where and how a global convention on access to information might be achieved.     

The Bermuda Islands blow ‘sweet & sour’ on employers’ liability for Internet libel

The Bermudian Supreme Court (at first instance) recently ruled in Bermuda Restaurants Limited (t/a “Chopsticks”) v. Jonathan Daspin and ConvergEx Global Markets Ltd. (Civil Jurisdiction 2008: No. 134 (to be reported)) on the issue of whether an employer (here, a company) should be held liable for an allegedly libellous email publication by its employee, the managing director. The Judge was asked by the employer company to determine two issues of law which exposed the company and which centred on its vicarious liability for its employee's actions, including whether the use of the company's email system, during working hours, made it complicit in the publication. The Court held, applying principles of English and Canadian law, that the company was not vicariously liable and by extension that it was not the email's publisher.     

Sex offender punishment and the persistence of penal harm in the U.S

The U.S. has dramatically revised its approach to punishment in the last several decades. In particular, people convicted of sex crimes have experienced a remarkable expansion in social control through a wide-range of post-conviction interventions. While this expansion may be largely explained by general punishment trends, there appear to be unique factors that have prevented other penal reforms from similarly modulating sex offender punishment. In part, this continuation of a “penal harm” approach to sex offenders relates to the past under-valuing of sexual victimization. In the “bad old days,” the law and its agents sent mixed messages about sexual violence and sexual offending. Some sexual offending was mere nuisance, some was treatable, and a fraction “deserved” punishment equivalent to other serious criminal offending. In contrast, today's sex offender punishment schemes rarely distinguish formally among gradations of harm or dangerousness. After examining incarceration trends, this article explores the historical context of the current broad brush approach and reviews the unintended consequences. Altogether, this article reinforces the need to return to differentiation among sex offenders, but differentiation based on science and on the experience-based, guided discretion of experts in law enforcement, corrections, and treatment.     

Contracts, Necessity and Ex Ante Optimality

In this paper I return to the issue of incentives to justify a narrowing of the applicability of a fair price rule to contracts of necessity. It is argued that such contracts should be viewed as part of a set of ex ante choices, one of which will minimize the costs of dealing with the risks associated with a period of temporary necessity. The Pareto optimality of a contract of necessity depends on whether the contract price would be seen by a potential victim of necessity as optimal ex ante, relative to her other choices with which to deal with the risk. It is shown that in the special case of a discrete choice set a fair price rule of law may not lead to efficient behavior on the part of both agents.     

Does Dworkin Commit Dworkin's Fallacy?: A Reply to Justice in Robes

In an article entitled ‘Dworkin's Fallacy, Or What thePhilosophy of Language Can't Teach Us about the Law’,I argued that in Law's Empire Ronald Dworkin misderived hisinterpretive theory of law from an implicit interpretive theoryof meaning, thereby committing ‘Dworkin's fallacy’.In his recent book, Justice in Robes, Dworkin denies that hecommitted the fallacy. As evidence he points to the fact thathe considered three theories of law—‘conventionalism’,‘pragmatism’ and ‘law as integrity’—inLaw's Empire. Only the last of these is interpretive, but each,he argues, is compatible with his interpretive theory of meaning,which he describes as the view that ‘the doctrinal conceptof law is an interpretive concept’. In this Reply, I arguethat Dworkin's argument that he does not commit Dworkin's fallacyis itself an example of the fallacy and that Dworkin's fallacypervades Justice in Robes just as much as it did Law's Empire.     

The Place of Legal Positivism in Contemporary Constitutional States

The aim of the paper is that of discussing some recent antipositivist theses, with specific reference to the arguments that focus on the alleged incapability of legal positivism to understand and explain the complex normative structure of constitutional states. One of the central tenets of legal positivism (in its guise of methodological or conceptual positivism) is the theory of the separation between law and morality. On the assumption that in contemporary legal systems, constitutional law represents a point of intersection between law and basic moral values, antipositivists contrast legal positivism with two main arguments. First, on a more general level, the positivist theory of the separation between law and morality is questioned; then, and consequently, the neutrality thesis in the juristic study of law is rejected. The author discusses both these antipositivist arguments, and offers a brief defence of methodological positivism.