电子商务平台服务提供者的商标间接侵权责任探析——论《侵权责任法》第36条在电子商务商标侵权中的适用

随着电子商务的发展,网络购物平台的知识产权侵权问题越来越受到人们的关注。2010年出台的《侵权责任法》第36条为判断电子商务平台服务提供者的责任提供了法律依据。但近来国内发生的几起案例对相关法条做出了不同的解读,对这些案例进行了梳理并提出若干判断电子商务平台服务提供者侵权责任的标准。     

Do Computers Make Output Harder to Measure?

In recent years, U.S. productivity growth accelerated sharply in manufacturing, but has remained sluggish in the most computer-intensive service industries. This paper explores the possibility that information technology is generating output that is increasingly hard to measure in non-manufacturing industries, which contributes to the divergence in industry productivity growth rates. Our results suggest that measurement error in 13 computer-intensive, non-manufacturing industries increased between 0.74 and 1.57 percentage points per year in the 1990s, which understates annual aggregate productivity growth by 0.10 to 0.20 percentage points in the 1990s. This adds to an estimated 0.22 to 0.30 percentage point error from the increasing share of aggregate output in these hard-to-measure industries. Thus, increasing measurement problems may understate aggregate productivity growth by an additional 0.32 to 0.50 percentage points per year in the 1990s and play an important role in understanding recent productivity trends at the industry level.     

电子商务合同主体地位与法律关系研究——以淘宝网C2C交易模式为例

电子商务合同具有合同主体虚拟化、交易介质无纸化等特殊法律品格,对传统法律形成了一定冲击。淘宝网等网络服务提供者为作为合同当事人的经营者与消费者提供了电子媒介支持,成为C2C交易中不可或缺的第三方。淘宝网与经营者、消费者分别通过订立网络服务协议,形成服务关系,对因自身过错或违反法定义务造成的损失应当承担赔偿责任。     

Policy Issues for R&D Investment in a Knowledge-Based Economy

The Internet Revolution induced an unbalanced perspective on future economic growth strategies. Because information technology (IT) largely constitutes an infrastructure upon which other economic activity is based, its economic role is to facilitate the productivity of investment in a wide range of products and services that meet final demand. Other economies around the world can and are investing in the same infrastructure, so the efficiency advantages now being realized by the U.S. economy will be fleeting unless U.S. R&D efforts produce a new and broad range of innovative products and services that take advantage of this infrastructure. A deep and diverse technology-based manufacturing sector must be a core objective of a national R&D strategy. United States manufacturing contributes $1.5 trillion to GDP, employs 20 million workers, accounts for more than 70% of industrial R&D, and constitutes the main source of technology for the larger service sector. While knowledge-based services are the largest source of economic growth for the U.S. economy, their long-term performance is highly dependent on synergies with a domestic manufacturing sector. These synergies will be even more important in the future because services are increasingly exposed to foreign competition. Knowledge-based services can be supplied from anywhere in the world—as long as these foreign sources can rapidly access and assimilate the necessary technology components. This caveat is the critical point for economic growth policy. Considerable research supports the argument that hardware and software components are most efficiently supplied to services by a manufacturing sector that is geographically close and institutionally integrated with the service applications. Policy debates have raged for decades over the nature and magnitude of underinvestment in manufacturing R&D. The need to resolve the relevant policy issues has increased, as industry is funding less of the long-term, high-risk research that creates the technology platforms supporting new industries and future economic growth. Unfortunately, only about a third of U.S. manufacturing is high-tech by conventional definitions. Some of the remaining industries develop technologies internally, but most purchase a large proportion of their technology from the high-tech sector. Because a technology acquisition strategy can be more easily imitated by foreign competitors, traditional industries are much more susceptible to exchange rate variations, global economic cycles, and secular shifts in foreign competition. Thus, with global technological capabilities relentlessly increasing, the long-term prospects for the moderate and low R&D-intensive portions of U.S. manufacturing are not good. This paper presents a conceptual framework and available data as inputs for the analysis of Federal R&D investment strategies. Such strategies must recognize the full range of public and private technology assets constituting a national innovation system. A developed and efficient innovation system has characteristics making imitation by foreign competitors difficult and thereby enables sustained competitive advantage.     

WTO中的电子商务框架协议之构建

作为一种新型贸易方式 ,电子商务是在乌拉圭回合之后发展起来的 ,因此WTO协定中并没有对电子商务设计具体条款。为了有效地调整电子商务 ,在WTO框架内拟订电子商务协议的是十分必要的。该协议应对电子商务存在、传送电子服务所必需的信息、电子服务的具体承诺、消费者的电子服务准入等方面的内容作出规定。     

Moving from secrecy to transparency in the offensive cyber capabilities sector: The case of dual-use technologies exports

Transparency is central to the prevention of human rights abuses. Over the past few decades, a belief in transparency has permeated multiple industries, reflected in an explosion of legislation intended to further this principle. Yet, despite this emphatic recognition of the importance of transparency, the activities of government and private sector actors involved in the development, sale, and export of Offensive Cyber Capabilities (OCC) remain cloaked in secrecy regardless of the sector’s role in facilitating human rights abuses. In this article, we tackle this broader challenge of secrecy via a case study on the export of dual-use technologies. We theorize why secrecy has been so prevalent in the OCC sector. We consider the role of different forms of secrecy—such as commercial secrecy and opportunistic secrecy by governments—in facilitating this situation. We argue that injecting greater transparency into the OCC sector is critical to deterring human rights abuses through accountability and oversight, can help counter the proliferation of offensive cyber technology proliferation, and can ensure better overall governance in regimes governing the export of dual-use technologies. Mandating transparency by governments and exporting companies in the OCC sector can pave the way for policy changes to better regulate this industry and finds support in international human rights principles related to transparency. In closing, we examine how transparency might be incorporated into export frameworks addressing dual-use technologies.     

Transition accounting for India in a multi-sector dynamic general equilibrium model

Using a quantitative methodology designed specifically for emerging economies, we measure the components of India’s economic growth over the period 1960–2005. Our approach accounts for time-varying parameters, transitional dynamics and non-linear trends. We find that increased productivity in the service sector, facilitated by a structural shift toward services, is the principal driver of India’s economic growth. Our measures also suggest that the allocation of inputs across sectors has not improved over this period, and in the case of labor appears to have significantly worsened. We further find that fluctuations in output around its trend are due primarily to fluctuations in sector-specific total factor productivity, with fluctuations in labor market distortions and labor taxes also playing important roles. In the period 1960–1980, productivity fluctuations in the agricultural sector are the dominant source of cycles. Since then, productivity fluctuations in the manufacturing and service sectors have been more important.     

电子商务立法三题

中性原则是电子商务立法所独有的基本原则，包括技术中性与媒体中性两方面；在不损及现有法律框架的前提下，电子商务宜走统一的、形式意义上电子商务立法的道路，并根据实际情况制定配套的单行法规。根据电子商务的内在要求，电子商务立法应以内含公正的法律效益为其价值取向。加入ＷＴＯ后我国司法解释的法律地位需重新界定。     

Electronic commerce and user-based design of a web site: Targeting the technology transfer audience

Web sites have the potential of playing a major role in the exchange of technology related information between federal laboratories and commercializers in the private sector. Most, if not all, Web site designs are developed based on the organization's perception of what the target audience wants from a Web site. This contribution addresses the issue of successful Web site design from the user's perspective in the context of technology transfer. The orientation takes into account important concepts and principles such as cost, marketing, diffusion, information retrieval, and strategic networking. The results of a survey of private sector technology transfer professionals offer insights to meet the target audience's needs, thus making a Web site a timely and cost-effective electronic linkage for interaction, information-seeking, and networking functions that enable technology transfer. This work was funded by United States Air Force contract number F30602-95-C-0240.     

电子商务中的消费者权益保护问题研究

电子商务以因特网为交易平台,而网络空间开放性、无国界的特点突破了传统商务在时间和空间上的限制,使电子商务获得了空前发展。但是电子商务发展过程中出现的种种损害消费者权益的情形给现行消费者权益保护法律带来了严峻挑战,也阻碍了电子商务的发展。在对电子商务背景下消费者权益保护中出现的问题进行深入分析的基础上,试图构建电子商务中的消费者权益保护体系,以期对相关立法有所裨益。     

论网上侵权纠纷当事人的确定

随着互联网的发展和广泛应用,网上侵权纠纷也大量发生。由于网上侵权纠纷当事人具有虚拟性、匿名性、隐蔽性、全球性和广泛性等特征,查找侵权人和查明当事人的真实身份往往存在着极大的困难,给当事人的确定带来了巨大的挑战。对于网上侵权纠纷的当事人,可以通过网页、账户密码、用户注册资料、IP地址、第三方证明、电子签名、暗记等方法来进行查找和确定。虽然网上侵权行为的实施均需借助网络服务提供者提供的网络服务,但不能一刀切地将网络服务提供者列为被告并追究其侵权责任,而应根据其提供服务的性质、是否存在过错等具体情形来确定网络服务提供者的诉讼地位。     

Business dynamics,industry productivity growth,and the distribution of firm-level performance: evidence for the role of ICT using Dutch firm-level data

We present evidence on industry productivity growth and business dynamics in Dutch industries for the period 2007–2012, and investigate whether there is a role for ICT intensity in explaining differences across industries. Moreover, we relate ICT intensity to various distributional characteristics of firm performance, such as the dispersion of labor productivity and turnover, concentration and turbulence of market shares, and the efficiency of resource allocation. In the first part of the paper we follow a decomposition approach, whereas in the second part we apply a regression based analysis. The results suggest that productivity growth is higher in ICT production and industries with high ICT usage, but that ICT also increases differences in firm performance and leads to concentration of markets. In addition, there is evidence that markets are more efficient in ICT intensive industries.     

The Service Sector's Acquisition and Development of Information Technology: Infrastructure and Productivity

The paper explains why the productivity of information technology (IT) in the service sector of the U.S. economy is increased by the provision of infratechnology. The size and growth of the service sector and its investment in IT are discussed, and a key fact and a key inference are developed. The fact: The absorption costs of IT are the vast majority of the IT investment costs to the service sector. The inference: Infratechnology investments are an efficient way to increase both private and social benefits of incurring the cost of implementing IT.     

支付命令与安全程序——美国《统一商法典》第4A编的核心概念及对我国电子商务立法的启示

电子资金划拨是电子商务的重要环节。作为世界上调整大额电子资金划拨最完善的法律,美国《统一商法典》第4A编创设了“支付命令”和“安全程序”等全新的概念与规则。支付命令不仅是4A编所界定的支付指令,而且对确定4A编的调整范围和大额电子资金划拨各当事方权利义务具有重要的意义。安全程序是支付命令的认证手段,其相关规则将欺诈损失在各当事方间进行了分担。美国《统一商法典》第4A编对我国电子商务立法具有如下启示:“功能等同”方法不是电子商务立法的唯一思路,我国立法应借鉴美国《统一商法典》第4A编的经验,考虑创立具有全新概念、全新规则专门调整电子商务特定关系的法律;我国电子商务法应是一个法群,而不是一部法典;我国电子商务立法应就电子化权利的转让问题作出规定。     

电子商务中消费者权益保护问题之法律探析

保护消费者权益正日益成为一个国际性的运动,成为新的世界潮流,我国亦是如此。随着Internet的迅速发展,传统的有形市场逐渐被网络空间所代替。这一新的市场环境,无论对个人的消费还是企业的经营方式都产生了巨大的影响。目前,电子商务中的消费者权益保护存在着诸多问题、电子商务网站也存在不少问题,解决网上消费者问题应采取相应的法律对策。     

手机无线增值服务中消费者权益保护问题

手机无线增值服务是移动通信运营商与服务提供商(SP)联合向手机用户提供的增值服务,属于电子商务的范畴。在这种商务活动中,移动通信企业和服务提供商赚取了巨额利润,却忽视甚至严重侵害了消费者的合法权益,引发了不少矛盾与纠纷。集中分析了有关消费者权益保护六大问题,试图引起人们对这一领域的关注。     

电子政务的价值取向：以民为本

我国的电子政务正在建立和发展阶段,确定什么样的价值取向影响着我国电子政务的发展方向。在电子政务所追求的监管和服务这两个目标上,监管也是为了服务,以民为本的服务导向型电子政务才是我国电子政务发展的方向。当前,我国电子政务在价值取向上存在一定的偏差,迫切需要重新定位。以民为本是我国电子政务价值取向的核心,主要包括服务性、高效性、公开性、全面性、协调性、安全性等价值目标。     

Winning by Co-Opeting in Strategic Government-University-Industry R&D Partnerships: The Power of Complex, Dynamic Knowledge Networks

There is increasing consensus among academic scholars, policy makers, and industry practitioners alike that the present and future secret of business survival and prosperity lies in strategic partnering and co-opeting successfully rather than outright competition. This is particularly so in knowledge-intensive, highly complex, and dynamic environments such as all high technology industries (semiconductors, aerospace, software, telecommunications, etc.), where collaborating to compete in knowledge generation and exchange has become so pervasive it is often hard to notice having become the standard modus operandi (from cross-licensing agreements to strategic complementarity in products and services). For example, witness the case of the Microsoft/Intel collaboration or “Wintel” alliance. We propose a dynamic, learning-driven framework which uses the game theoretic perspective, drawing principally from the notion of “co-opetition” (coined by Ray Noorda, former CEO of Novell, and developed by Brandenburger and Nalebuff [1996]), to examine how a knowledge generating and leveraging value-maximizing organization (not just a for-profit firm), should position itself in relation to the range of players with whom the organization interacts (in terms of market relationships, generating and pooling of strategic knowledge assets including intellectual property rights and human capital, and other dimensions) to maximize shareholder value in the long term. Select case studies focusing on government-university-industry strategic partnerships for research and technological development (GUISP RTDs), such as the NSF Engineering Research Centers, provide empirical validation of our concepts and especially on how to architect intelligent organizational interfaces across the spectrum of strategic R&D collaborations.     

Regulatory Categorization and Arbitrage: How Daily Fantasy Sports Companies Navigated Regulatory Categories Before and After Legalized Gambling

This article uses the context of daily fantasy sports (DFS) to analyze how companies use strategic categorization in regulatory arbitrage. Recent actions by two leaders in the DFS industry, DraftKings and FanDuel, provide an ideal context to study this issue. DraftKings and FanDuel categorized themselves differently to different audiences at different times in a manner that evaded categorization as an illegal gambling activity, only to then dominate the sports betting market after the Supreme Court's decision in Murphy v. NCAA. We examine how this type of strategic categorization, which we call “fluid categorization,” raises important questions for regulators and others concerned with regulatory arbitrage. We also explore how fluid categorization provides lessons for other businesses. While this article has broad implications for the sports gambling marketplace, it also contributes to meaningful discourse for the broader business community, as its findings are relevant to industries beyond DFS that offer gray market products and seek to fight categorical labels until there is a reclassification event.     

Innovation in the U.S. Service Sector

This paper contributes to ard a better understanding of innovation in the service sector by focusing on the disparate nature of R&D in the U.S. service sector as learned through case studies of the U.S. telecommunications, financial services, systems integration services, and research and development testing services industries. Based on this understanding of the nature and scope of R&D therein, a new policy-oriented model of innovation specific to the service sector is posited. Also, policy recommendations are offered with regard to the public sector’s collection and interpretation of R&D data related to the service sector.