Software Piracy and Global Competitiveness: Report on Global Software Piracy

This paper is a comprehensive examination of the impact of software piracy worldwide. Software piracy is defined by the American Software Publishers Association as the unauthorized duplication of computer software. Completed in April 1997, this survey examines business application software piracy in 1996. Three main messages emerge using data collected from a variety of sources and analyzed using strict research methodolog. Firstly, business application software piracy cost the industry $11.3 billion in 1996. Secondly, continued growth of the worldwide software industry is being retarded by piracy. Thirdly, governments worldwide must do more to combat piracy . 1997 piracy data have become available since this paper was submitted. 1998 data are expected in May 1999.     

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 Aid in the Eye of a Storm: Rationing, Contracting, and a New Institutionalism

This article discusses possible rationales underlying a legal aid system through an articulation of theories of distribution in the legal services market, considers the idea of prioritization and planning or, in the political vernacular, rationing of public funding, and addresses the impact of economic and social theories of the professions on legal aid structures. Finally, the emerging concepts of 'new-institutionalism' and 'new public management' are introduced to indicate the organizational and sociological complexity of reforming the legal services market. Each of these threads illustrate competing values and institutional influence on publicly funded legal services. Bureaucratic rules mix with professional and economic incentives to articulate entitlement to public money in a predominantly private forum. Drawing on research in the field of rationing health care, sociological and economic work on legal services, and organizational theories, it will be demonstrated that conceptual, policy, and research tools need to play closer attention to this competition of values.     

Ex-Pirates in Somalia: Processes of Engagement,Disengagement, and Reintegration

This study addresses how and why individuals in Somalia get involved in piracy activities, and how and why some of these individuals eventually disengage from such criminal groups. Based on qualitative interviews with 16 ex-pirates and pirate associates and a number of other locals and experts, the study provides first-hand insights into some of the conditions, circumstances, and processes which may serve to discourage involvement and continued engagement in piracy. Furthermore, it analyses factors and circumstances which may encourage and facilitate disengagement from these criminal activities and reintegration into non-criminal economic activities and social relationships. The lack of employment and livelihood motivated individuals to engage in piracy. However, disappointment about the lack of expected profit, coupled with the prospect of a licit income, influenced some to end their piracy involvement. Another important factor was the strong statements by local Muslim leaders that piracy was haram (forbidden). This was often reinforced by family and community objections to their involvement in piracy. Family members also played important roles in facilitating their disengagement. The ‘Alternative Livelihood to Piracy’ project played a positive role in facilitating disengagement from piracy, working closely with local religious leaders and the communities.     

索马里海盗引发的若干国际法问题

肆虐的索马里海盗和武装劫船行为已经对当代国际法多个分支产生了挑战和冲击，带来了若干亟需解决的法律问题。国际社会必须在预防、制止和惩治方面完善对付海盗和武装劫船行为的国际法体系，包括推动武装劫船行为概念的普遍化、更多依赖1988年《制止危及海上航行安全非法行为公约》及其2005年议定书、澄清适用于武力打击海盗和武装劫船行为的国际人权和人道法的类型和内容、以及探索对海盗行为进行公正有效制裁的刑事审判模式。     

Bilateral Investment Treaties,Credible Commitment,and the Rule of (International) Law: Do BITs Promote Foreign Direct Investment?

A long line of research, beginning with Macaulay's (1963) well‐known study of “Non‐Contractual Relations in Business,” suggests that the formal trappings of domestic law often have effects on private behavior that are, at best, “indirect, subtle, and ambiguous” ( Macaulay 1984 :155). Law and society scholars have spent somewhat less time exploring whether international law's effects on behavior are similarly attenuated. In this article I examine whether foreign investors take the presence of strong formal international legal protections into account when deciding where to invest. I focus on whether the presence of bilateral investment treaties, or BITs, meaningfully influences investment decisions. I present results from a statistical analysis that examines whether the formally strongest BITs—those that guarantee investors access to international arbitration to enforce investors' international legal rights—are associated with greater investment flows. I find no clear link between treaty protections and investment, a finding consistent with past law and society research but in tension with claims common in the BIT literature that the treaties should have dramatic effects on investor behavior.     

Crime Data,the Internet,and Free Speech: An Evolving Legal Consciousness

Digitization and open access to governmental data have made criminal justice information incredibly easy to access and disseminate. This study asks how law should govern access to criminal histories on the Internet. Drawing upon interviews with crime website publishers and subjects who have appeared on websites, I use legal consciousness theory to show how social actors interpret, construct, and invoke law in a nascent and unregulated area. The analysis reveals how both parties construct legality in the absence of positive legal restrictions: Website publishers use legal justifications, while those appealing to have their online record cleared resort to personal pleas, as opposed to legal remedy. Ultimately, I show how current data practices reinforce structural inequalities already present in criminal justice institutions in a profoundly public manner, leaving website subjects with little recourse and an inescapable digital trail.     

Part II of David Bainbridge's study of the copyright (computer software) amendment act 1985

The considerable amount of piracy of computer programs which has taken place recently has shaken the software industry's confidence in legal methods of protecting their products. If nothing more, the new Act should restore some of this confidence, but the industry must be prepared to take the legal measures now available. The stronger criminal sanctions provided for by section 3 of the Act emphasise the criminality of software piracy and it is hoped that the police will also begin to take software theft seriously. But there are some grey areas in copyright law as amended by the new Act; the precise scope of ‘material form’ and ‘adaptation’ are unclear - will the making of a duplicate of a program stored on magnetic cassette tape infringe copyright? A wide definition of ‘material form’ could have put protection beyond doubt whilst allowing for future developments in computer storage media. The new Act is seen as an interim measure pending a comprehensive review of copyright law (per Lord) Lucas of Chilworth, Hansard House of Lords, 10 May 1985 p. 873; he said that the Government hoped to bring forward a comprehensive Copyright Bill no later than the 1986/7 session). Furthermore, the whole area of computer storage of more traditional works of copyright such as literary and musical works, is not specifically mentioned in the new Act. Other questions such as the ownership of works including computer programs produced by or with the aid of a programmed grammed computer (first identified as being a likely problem as early as 1977 by the Whitford Committee) are not dealt with all by the Act. Lord Macmilland of Ovenden recently called for new legislation to deal with the copyright problems caused by new technology (The Times 18th September 1985 p.3), and it is hoped that full consideration will be given to the effect of computers on all forms of intellectual property when copyright law is rationalised and re-codified.     

Health, Social Movements, and Rights-based Litigation in South Africa

This article investigates the impact of rights-based litigation on social struggles in the South African health sector. It considers the manner in which individuals and social movements have utilized rights and the legal process in their efforts to dismantle the ill-health/poverty cycle, in the particular context of the struggle for universal access to treatment for HIV/AIDS. Relying on literature concerning the transformative potential of socio-economic rights litigation and on examples from South African case law, the article critically evaluates the gains that have been made and the obstacles that have been encountered in this context. It argues that rights-based litigation presents a powerful tool in the struggle against poverty, but also elaborates on structural and institutional hurdles that continue to inhibit the effectiveness of rights-based strategies in this regard.     

An insight into piracy prosecutions in the Republic of Seychelles

The article concentrates on the several legal issues that have come up in piracy trials before the Supreme Court in relation to jurisdiction, human rights, joint and secondary party liability, attempts, mens rea, presumption of piracy from those found cruising the high seas with weapons and sentencing. The article also deals with factual issues in relation to determining; the identity, age, nationality of accused and time of attack due to different time zones, placing reliance on GPS, video, photographic and hearsay evidence and use of system evidence from the common pattern followed by a typical piracy action group.     

Meeting of Commonwealth Law Ministers and Senior Officials

The paper broadly captures the legal framework for the prosecution of piracy cases in Kenya, given the experience that Kenya has gained from piracy prosecutions since 2006. It also underscores the need for regional, coastal and flag states to co-operate in the repression of piracy off the coast of Somalia in line with the UN Security Council resolutions on the subject. The challenges that Kenya has encountered in piracy prosecutions are also highlighted, and suggestions on how best states can co-operate in this regard are made. International co-operation is identified as a key component to the success in combatting piracy.     

Morality, social norms and the rule of law as transaction cost-saving devices: the case of ancient Athens

The importance of the institutional framework for economic development is widely accepted today and it is duly stressed in the economic literature. The protection of property rights, the enforcement of contracts and an efficient legal system are the pillars of the contemporary rule of law. However, formal institutions cannot function without being internalized by the citizens and without the strong backing of social norms. Morality and social norms are the major elements of the informal institutional structure, the social capital, which is also critical for social welfare and economic development. In this paper we will discuss both the formal and the informal institutional framework of Ancient Athens, which was a free market society with economic problems similar to contemporary market societies. Athenians developed a highly sophisticated legal framework for the protection of private property, the enforcement of contracts and the efficient resolution of disputes. Such an institutional framework functioned effectively, cultivating trust and protecting the security of transactions. This entire system however was based on social norms such as reciprocity, the value of reputation and widely accepted business ethics. Conformity to social norms as well as moral behavior was fostered by social sanction mechanisms (such as stigma) and moral education. The Athenian example is a further proof of the importance of morality and social norms as transaction cost-saving devices even in quite sophisticated legal systems. Their absence or decline leads inevitably to the need for more regulation and litigation and to a growing preference for clear-cut rules instead of discretionary standards. Athenian law was pioneering in the development of rules and institutional mechanisms suitable for the reduction of transaction costs, many of them surviving in the most complex contemporary legal systems.     

Capturing Technological Opportunity Via Japan's Star Scientists: Evidence from Japanese Firms' Biotech Patents and Products

Using detailed data on biotechnology in Japan, we find that identifiable collaborations between particular university star scientists and firms have a large positive impact on firms' research productivity, increasing the average firm's biotech patents by 34 percent, products in development by 27 percent, and products on the market by 8 percent as of 1989–1990. However, there is little evidence of geographically localized knowledge spillovers. In early industry formation, star scientists holding tacit knowledge required to practice recombinant DNA (genetic engineering) were of great economic value, leading to incentives motivating their participation in technology transfer. In Japan, the legal and institutional context implies that firm scientists work in the stars' university laboratories in contrast to America where the stars are more likely to work in the firm's labs. As a result, star collaborations in Japan are less localized around their research universities so that the universities' local economic development impact is lessened. Stars' scientific productivity is increased less during collaborations with firms in Japan as compared to the U.S.     

软件侵权计算机取证方法的法律推理

随着计算机越来越广泛地应用于国家和社会的各行各业中,软件带来的经济利益不断增多。各种软件不断地开发和应用,随之而来对软件的侵权行为也越来越多,只有完善法律法规,并大力打击侵权行为,才能有效保障软件开发者的利益。如何判断软件侵权行为是保护正版打击盗版的前提条件,这就是侦查和司法鉴定的计算机取证。     

以香港為視角看兩岸四地司法協助制度

随着内地与港澳对一国两制下司法协助新模式的积极探索和2008年以来两岸关系的历史性转折,内地和港、澳、台四地间的司法协助成效显著。尤其是近年来,两岸签署了经济合作框架协议等一系列协议,四地间经济、文化等交流日趋紧密,涉及司法协助的案件整体上增长势头明显,数量上远超国际司法协助案件。2012年人民法院办理涉港文书送达司法协助案件1515件,涉澳文书送达和调查取证司法协助案件81件,较2008年分别上升了38.5%和72.3%。2009年6月25日两岸司法互助协议生效后,当年人民法院办理的两岸司法协助案件数量即突破1000件,此后每年都在6000件以上。四地间司法协助工作的全面开展,既有利于区际司法合作的深入推进,也为四地的融合和经贸关系发展提供了制度保障和动力。本期特选取温嘉明律师关于四地间司法协助制度的文章,梳理区际司法协助的法律基础和发展历程,研讨其取得的成就及尚存的不足。     

Law, Finance, and Politics: The Case of India

The liberalization of India's economy since 1991 has brought with it considerable development of its financial markets and supporting legal institutions. An influential body of economic scholarship asserts that a country's "legal origin"—as a civilian or common law jurisdiction—plays an important part in determining the development of its investor protection regulations, and consequently its financial development. An alternative theory claims that the determinants of investor protection are political, rather than legal. We use the case of India to test these theories. We find little support for the idea that India's legal heritage as a common law country has been influential in speeding the path of regulatory reforms and financial development. Rather, we suggest there are complementarities between (1) India's relative success in services and software; (2) the relative strength of its financial markets for outside equity, as opposed to outside debt; and (3) the relative success of stock market regulation, as opposed to reforms of creditor rights. We conclude that political economy explanations have more traction in explaining the case of India than do theories based on "legal origins."     

Battered women who kill their abusers: an examination of commonsense notions, cognitions, and judgments

It has been argued that battered women who kill their abusers represent a special class of defendants being unfairly treated in the legal system. As a result, commentators have argued for reforms to permit the judicial system to respond more fairly. Researchers have investigated the influences of these prescribed legal modifications and the possible influence of various demographic and psychological factors on legal reforms. However, social scientists have not yet asked some fundamental, psychological questions. Is the law consistent with what society believes is right and just? Is there a commonsense notion of justice in these cases? What factors constitute cognitive decision rules and influence judgments in cases of battered women who kill their abusers? This study uses a basic, psychological method to identify psychological factors that are important in judgments regarding battered women who kill and to better understand commonsense notions of justice in these cases.     

国际专利制度改革的实证分析及对我国的启示

国家的经济水平、政治体制和法律传统对专利制度改革具有显著影响。我国的专利制度改革应在改革绩效的即时评估、专利构成的结构优化以及改革支持机制的协调上着力。     

Internal Market Rationality,Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political

This paper proposes a concept of ‘internal market rationality’ for the analysis of the political, legal and economic consequences of European integration. Internal market rationality refers to a specific pattern of political action in the field of internal market, which has emerged gradually due to the confluence of three main factors: first, the EU's functional institutional design; second, the processes of post‐national juridification; and third, a more contingent influence of ideas. In the interplay of those three factors, the interpretation of internal market has become overdetermined, restricting thereby the space of (democratic) politics in its regulation. This reification of internal market rationality has had a direct influence on the content of European law, as I demonstrate through the example of European private law. Internal market rationality has transformed the very concept of justice underpinning private law, the concept of the person or subject of law, the (re)distributive pattern of private law as well as the normative basis on which private law stands. I argue, finally, that a close examination of the legal, institutional and ideological arrangement behind internal market rationality provides clues for the democratisation of the EU.