数字网络环境中著作权实现的困境与出路——基于P2P技术背景下美国音乐产业的实证分析

数字网络技术给著作权的保护带来了巨大的挑战。技术保护措施、侵权诉讼以及逐级响应机制等既有网络著作权保护方式已陷入困境。网络著作权与传统财产权、著作权的差异、新技术发展的不可预测性以及来自盗版的竞争,要求网络环境下必须采取以授权为中心的整体性著作权实现机制。随着云技术、大数据以及3D打印技术等新兴技术的发展,整体性著作权实现机制在网络环境中将发挥越来越重要的作用。     

Requirements of prosecution services to deal with cyber crime

The advent of digital technology and the convergence of computing and communications have begun to change the way we live. These trends have also created unprecedented opportunities for crime. Criminal activities that were not foreseeable two decades ago have become facts of life today. Digital technologies now provide ordinary citizens, even juveniles, with the capacity to inflict massive harm. It is essential for public prosecutors to equip themselves with the knowledge that will permit an effective response. The continued uptake of digital technology will create new opportunities for criminal exploitation.     

Does accessible technology need an ‘entrepreneurial state’? The creation of an EU market of universally designed and assistive technology through state aid

EU State aid law has sought to enable people with disabilities to obtain employment, yet has not been explicitly included in the toolbox of policy options to improve the availability and choice of accessible technology within the EU Internal market. This seems to be the consequence of an inherent bias against State intervention in the market, which is mostly unwelcome since it can limit open and free competition. This also reiterates the ‘less-aid’ policy and the purely economic approach to State aid professed by the European Commission. Against this background, this article discusses the potential for EU State aid policy to foster both ‘design for all’ and innovative assistive devices for people with disabilities. It seeks to argue that the goal of an EU-wide market of accessible technology can be achieved using EU State aid law. In particular, this article aims to highlight that a more targeted use of EU State aid law can lead developers to increase the production of accessible goods, to adjust or reduce prices and to provide consumers with a greater degree of choice in a greater number of marketplaces. Whilst it adopts a legal approach, this analysis relies inter alia on economic evidence and recalls the pamphlet recently published by Mazzuccato, from which the title of this work has drawn inspiration.     

The Internet, Technology, and Organized Crime

Digital technology has transformed organizational life. Developments in communications, and in information storage and retrieval, to name just two areas, have greatly enhanced the efficiency with which legitimate organizations operate. Unfortunately, the benefits of digital technology are not lost on criminal organizations, which exploit digital technology to enhance the efficiency and effectiveness of their own operations. This paper will discuss the organized criminal exploitation of digital technology, by looking at a number of illustrative cases from Asia and around the world. It will discuss the various types of “conventional” organized crime that can be facilitated by digital technology, as well as terrorism, which itself can be regarded as a special kind of organized criminal activity. One fundamental question that the paper will seek to address is whether the activities of Asian organized crime have become substantively different as a result of technology, or whether traditional organized criminal activities in Asia are merely being conducted on a more efficient and effective basis. The paper will note the transnational nature of much organized criminal activity, and will discuss mechanisms for the control of organized crime in the digital age.     

Network investigations of cyber attacks: the limits of digital evidence

Cyber attackers are rarely held accountable for their criminal actions. One explanation for the lack of successful prosecutions of cyber intruders is the dependence on digital evidence. Digital evidence is different from evidence created, stored, transferred and reproduced from a non-digital format. It is ephemeral in nature and susceptible to manipulation. These characteristics of digital evidence raise issues as to its reliability. Network-based evidence – ie digital evidence on networks – poses additional problems because it is volatile, has a short life span, and is frequently located in foreign countries. Investigators face the twin obstacles of identifying the author of a cyber attack and proving that the author has “guilty knowledge.” Even more is at stake when the cyber attacker is a trusted insider who has intimate knowledge of the computer security system of the organisation. As courts become more familiar with the vulnerabilities of digital evidence, they will scrutinise the reliability of computer systems and processes. It is likely that defence counsel will increasingly challenge both the admissibility and the weight of digital evidence. The law enforcement community will need to improve competencies in handling digital evidence if it is to meet this trend.     

数智化社会的法律调控

数智化逻辑是人机互融、虚实同构、算法主导。数智化社会关系的架构化和建模化,彻底改变我们认识、把握和干预世界的方式。数智化后设机制统御一切行为及关系,法律与法学作业理念将由"如何修复和恢复社会"转向"如何规训和塑造社会"。法律对社会的调控应由"裁断行为后果"前移为"塑造行为逻辑",由事后处置转向参与建设社会关系"架构",由赋权与救济转向责任与义务的加载与规制。法律算法化自动运行将成为常态,法律人工操作将成为非常态。数智化逻辑摧毁权利本位和司法中心主义法律法学观,权利主义法学势必为规制主义法学所取代。     

法律数字化现象研究

法律的数字化是一个值得关注但至今尚未被充分关注的现象.法律与数字相结合的内在机理体现在两方面:现实存在的模糊性导致我们必须通过数字化的形式以达致认识的精确性,而现实存在的秩序性使得通过数字化的形式来表达法律成为可能；数字的格式化特征与法律所追求的客观性不谋而合,而法律所需要的可操作性恰可借助数字的工具功能得以满足.数字化是法律形式化的主要实现途径,数字赋予了法律以科学性、客观性及正当性,法律的数字化可有效地规范自由裁量权.法律对数字的过度依赖也容易导致实质上的不平等,且将会引发功利主义的泛滥.法律的工具理性需要数字化,而人性则是无法数字化的.法律的数字化只能是有限的、相对的.     

Decoding the APFS file system

File systems have always played a vital role in digital forensics and during the past 30–40 years many of these have been developed to suit different needs. Some file systems are more tightly connected to a specific Operating System (OS). For instance HFS and HFS+ have been the file systems of choice in Apple devices for over 30 years.Much has happened in the evolution of storage technologies, the capacity and speed of devices has increased and Solid State Drives (SSD) are replacing traditional drives. All of these present challenges for file systems. APFS is a file system developed from first principles and will, in 2017, become the new file system for Apple devices.To date there is no available technical information about APFS and this is the motivation for this article.     

Three-dimensional cranio-facial reconstruction in forensic identification: latest progress and new tendencies in the 21st century

Three-dimensional (3D) cranio-facial reconstruction can be useful in the identification of an unknown body. The progress in computer science and the improvement of medical imaging technologies during recent years had significant repercussions on this domain. New facial soft tissue depth data for children and adults have been obtained using ultrasound, CT-scans and radiographies. New guidelines for facial feature properties such as nose projection, eye protrusion or mouth width, have been suggested, but also older theories and "rules of thumbs" have been critically evaluated based on digital technology. New fast, flexible and objective 3D reconstruction computer programs are in full development. The research on craniofacial reconstruction since the beginning of the 21st century is presented, highlighting computer-aided 3D facial reconstruction. Employing the newer technologies and permanently evaluating and (re)questioning the obtained results will hopefully lead to more accurate reconstructions.     

The product-liability-insurance issue in university licensing agreements

As universities become more involved with industry through research and license agreements, and with the change of character of product liability, particularly its becoming a potentially catastrophic event, universities are taking a hard look at product-liability insurance. A brief survey shows universities in three distinct groups in their handling of the issue in their licensing agreements. State schools feel protected and do not generally consider it essential, foundations are more cautious, and private universities are very concerned and require it except in specific cases. Some approaches to the problem are proposed. Previously he was head of the Chemistry Department at Simon Boliver University and director of a university-based industrial research institute. Bertha has also been a research chemist at Dupont Corp. He has a Ph.D. in inorganic chemistry form Florida State University.     

Genomics and toxic torts: dismantling the risk-injury divide

Emerging genetic and molecular technologies are revolutionizing our understanding of the relationship between genes and the environment. This Article develops an innovative framework for understanding the implications of the genomic revolution for the law of toxic torts. Professor Grodsky demonstrates how new technologies are poised to challenge longstanding distinctions between legally inconsequential "risk" and remediable "injury," and how the U.S. legal system will need to adapt to this emerging reality. If the law remains wedded to conventional notions of injury, it will ignore the fruits of a scientific revolution and thus may forego new remedial opportunities as yet unimagined. This is particularly significant given that twenty-first century medicine strives to "go beyond the limitations of biology" and detect, prevent, and treat disease at the molecular level. The transformative and rapidly evolving technologies of the genomic era will present herculean challenges for the legal system. But opportunities to fashion new remedies and create new efficiencies must not be overlooked in the process. Professor Grodsky recommends legal approaches to balance the goals of deterrence and legal restraint in an age of accelerating scientific change.     

Technology, Criminology and Crime Science

Developments in technology have changed the environment of crime, which, in some of its new forms, poses a serious threat to society. At the same time the technologies of crime control are being transformed. If criminology is to respond adequately to this changed environment, it must make radical changes in its mission, its theories and its methodologies, the collective result of which would be to make the discipline more directly relevant to crime control and prevention. This would enhance the effectiveness of these activities and would also open up new and exciting career opportunities for criminologists. If criminology does not change, it will become eclipsed by crime science and will find it increasingly hard to survive – even in the protected environment of universities.     

The Global Dimension of Cybercrime

Cyberspace and thus cybercrime know no boundaries. This chapter reviews some of the basic forms of cybercrime, draws specific attention to the issues that arise when offences occur across borders and in relation to organised criminal groupings, and provides illustrations based on some of the more celebrated cases of the past few years. The borderless nature of cyberspace and the exponential take-up of digital technology throughout the world guarantee that transnational cybercrime will remain a challenge. Fortunately, many nations are rising to this challenge, individually and collectively, but the web of international cooperation does have its holes and those nations that lag behind the leaders risk becoming havens for cybercriminals of the future.     

Transferring Public Research: The Patent Licensing Mechanism in Agriculture

Technology transfer policies can bring public R&D to potential users, reduce burdens on public resources, and influence technology development. Patent licensing offers transparency, potentially higher research returns, and possible increased adoption of socially desirable technologies. However, it limits access to research results, and raises concerns that public institutions will alter their agendas. A review of the US Department of Agriculture's patent and licensing program addresses the types of technologies disseminated, social benefits associated with them, institutions licensing technologies, the importance of exclusivity, and whether research priorities have become oriented to private interests. Results suggest that USDA's patent licensing is not revenue driven, and its research agenda has not changed in response to the program. Licenses vary with respect to four important social benefits. Licensing program priorities are closer to those of the private sector than the USDA's research program. Partial or limited exclusivity may be sufficient to attract technology developers.     

由一起官司看网络环境下数字作品的著作权保护问题

信息技术的飞速发展,使得网络环境下的数字作品创作和传播方式相对于传统方式发生巨大变化,与之俱来的是数字作品的著作权保护问题形成了对传统著作权的巨大挑战。从一起相关案件入手,分析了产生数字作品著作权问题的原因,并提出网络环境下的数字著作权保护问题应从法律及信息技术两方面寻求解决的出路。     

Criminal Law beyond the State: The European Model

This article will analyse two models of criminal law beyond the State, which are here termed ‘eunomic’ and ‘dialogic’. It will then focus on one case study, European criminal law, which was inherently ‘dialogic’ until the last decade of the past century but has now quite unique features. In accordance with classic liberal views, criminal law has always been conceptualised as one of the most salient attributes of the sovereign State. The monopoly on the use of violence was to be legitimised by the State's concern for the sphere of autonomy of the individual. It is submitted in this article that it is precisely this condition that is lacking in the current European model, which promotes security‐oriented paradigms of self‐fulfilment and effectiveness. However, criminal law, if properly conceived, could in theory function as a powerful vehicle of integration.     

论版权法之间接侵权责任——以《网络信息传播权条例》为中心

我国新近生效的《网络信息权保护条例》建立了间接侵权制度,它与直接侵权一起构成了版权侵权制度,具有革命性的影响。但《条例》尚无法完全满足数字技术所带来的挑战,这主要集中在法律没有为“双重用途技术”提供普遍化的间接侵权标准。因此,根据我国经济发展之现状,在版权法公共政策目标的指导下,建立以过错为归责原则、以类型化立法为基础的间接侵权制度是具有合理性的。     

Internet service providers as law enforcers and adjudicators. A public role of private actors

Private actors have become increasingly involved in the law enforcement process in recent years, taking up more proactive roles and being increasingly engaged in choices between conflicting rights and freedoms. The development and spread of information and communication technology (ICT) created a set of conditions in which the participation of private actors (service providers in this case) appears to be a necessity. These conditions include, for example, a lack of physical borders for ICT technologies, the speed and width of the spread of information on the Internet, as well as the growth of technological behemoths. The resulting reaction can be seen in various sectors, such as combatting illicit content online or gathering digital evidence. While executing these roles they may be compelled – de jure or de facto – to make value judgments which traditionally belong to the public authorities. At the same time the legal framework is either lacking or it does not fully cover the consequences of this fundamental paradigm shift, to the detriment of the authorities, private actors and persons concerned.The objective of this article is to examine the most important features of these developments and analyse resulting key legal problems. The author demonstrates that the legal landscape of cooperation between law enforcement and service providers must be rethought and offers a direction for this reflection.