The Google conundrum: Perpetrator or facilitator on the net? - Forging a fair copyright framework of rights, liability and responsibility in response to search engine 2.0 - Part II: The Google Books Search Project

Is Google in its quest for search engine optimization through the creation of new technologies, which not only improves its search algorithms but also refines its search functions for users, doing it in a manner that makes it a perpetrator of primary copyright infringement or an invaluable facilitator for Internet functionality? How should the balance of interests in the treatment of creative works be recalibrated in the face of changes in search engine technology and operations, and the disputes that have arisen within the last decade in the context of the digital age and its needs? Using Google as a case study, this paper will look at the two main areas of dispute over the operations of information locator tools and services that either threatens search engine functionality and efficiency or weakens copyright holders’ exclusive rights. It proposes a concerted set of solutions through a reassessment and amendment of copyright law to optimize the social benefits and objectives of both the copyright regime and technological innovations in the electronic model of information archiving, indexing and delivery. A fair distribution of responsibilities and allocation of rights and liabilities will be suggested. In the process, due consideration will be given to both public and private interests, with the former taking precedence; while the recommended solutions will be made within the currently outdated framework for Internet intermediary protection (i.e. safe harbor laws) and exceptions (i.e. specific statutory exemptions and the general fair use defense) under the existing copyright regime. Thus, the proposed changes will be far reaching without being too radical a departure from current law, an evolution that will likely be more acceptable and realistic a solution to the problem.This paper is published in two parts. Part One of this paper published in the previous edition of the CLSR at [2011] 27 CLSR 110-131 dealt with the challenges to the copyright regime posed by the operations and technology behind the Google Images Search Engine, while Part Two will assess the benefits of the Google Books Search Project vis-à-vis the effects it will have on the scope of copyright protection. Recommendations are made to copyright law to accommodate both functions while generally preserving the main objectives of copyright protection.     

English High Court decides that “making available” over the internet only occurs in the jurisdiction where the servers are based

The English High Court has considered the meaning of “making available to the public” by online transmission in the context of database rights and has determined that the act of making available is only committed in the country where the host server is located, and not the country where the material is accessed by the public.     

Quantitative assessment of evidential weight for a fingerprint comparison I. Generalisation to the comparison of a mark with set of ten prints from a suspect

The authors have published elsewhere a quantitative method for assessing weight of evidence in the case where a finger mark from a crime scene is compared with a control print taken from a single finger of a suspect. The approach is based on the notion of calculating a likelihood ratio (LR) that addresses a pair of propositions relating to the single finger that was the origin of the crime mark. In practice, things are rather different because the crime mark will not just be compared with a single finger from a suspect but with a set of prints from all of his/her fingers; likewise, when the mark is compared with a database, this will consist of ten print records from random individuals. It is clear that "finger propositions" are not realistic in this situation and we show how our approach may be generalised to address a pair of propositions that relate to the person that made the crime mark. It often is the case that information is present at the crime scene that enables some inference to be drawn relating to which of the offender's ten fingers left a particular mark of interest. This kind of inference may profitably be drawn into the formal analysis. We illustrate our approach with an example.     

Expert evidence accountability: new developments and challenges

A series of developments in relation to the accountability of expert witnesses and the admissibility of their opinions is taking place. This extends to encroachments in the United Kingdom on expert witness immunity, the imposition of disciplinary liability for registered health practitioners in Australia and the United Kingdom, and recommendations from the United Kingdom Law Commission for a systematised procedure for reliability determination as a prerequisite for admissibility rulings. This combination of measures is indicative of international concern about the contemporary role of expert witnesses. It highlights the need for both empirical information about whether the anecdotal and experiential concerns about expert evidence are well-founded and for the provision of better and clearer guidance to experts and litigators alike about the underpinnings and methodologies that are permissible for admissible and probative expert opinions.     

Long-tail liability law reform

There is a need for the law to evolve so that corporations are obliged to make proper provision for liabilities to unascertained future creditors. However, implementation of long-tail liabilities is far from straightforward and has many repercussions for both corporations and personal injury law. In October 2005 the Parliamentary Secretary to the Treasurer requested the Corporations and Markets Advisory Committee to consider a "referred proposal" designed to achieve comprehensive and principled law reform. Analysis of the referred proposal reveals many shortcomings, a number of which have been addressed by the Committee in its June 2007 Discussion Paper, Long-Tail Liabilities: The Treatment of Unascertained Future Personal Injury Claims. This editorial urges further and reflective analysis of the referred proposal and of the Committee's tentative suggestions in order to achieve a balance among the entitlements of unascertained future creditors, other known creditors, shareholders, corporations' financial viability, and the conceptual integrity of corporations law.     

Exploring Risk: Potential Static,Dynamic, Protective and Treatment Factors in the Clinical Histories of Female Sex Offenders

Despite nearly a century of knowledge indicating a significant number of women engaging in sexual activities with children, the phenomenon has not yet been fully acknowledged. Recently, however, there has been a marked increase in research in this area. However, due to the relatively small numbers of detections or convictions there remains a lack of data regarding: (1) the specific clinical characteristics of female sex offenders; and (2) how these clinical factors link to re-offending and treatment need. The following study examines potential risk, protective, and treatment factors that are highlighted through the process of clinical intervention, using an adapted version of the Beech and Ward (2004) risk framework. We describe how female sex offenders typically display clinical deficits in the same risk domains as their male counterparts, while noting the ways in which these deficits manifest in this population. In addition, we compare these vulnerability factors in four established types of female sex offender.     

‘Customary internet-ional law’: Creating a body of customary law for cyberspace. Part 1: Developing rules for transitioning custom into law

The shift in socio-economic transactions from realspace to cyberspace through the emergence of electronic communications and digital formats has led to a disjuncture between the law and practices relating to electronic transactions. The speed at which information technology has developed require a faster, more reactive and automatic response from the law that is not currently met by the existing law-making framework. This paper suggests the development of special rules to enable Internet custom to form legal norms to fulfill this objective.     

‘The Sky is Falling!’ – Responses to the ‘Going Dark’ problem

The shared concern expressed in the two quotes below is that modern technologies provide criminals with a capability to evade investigation. This comment piece examines some of the policy and legal options available to governments and law enforcement agencies to try to address this concern. While accepting the claim that this phenomenon represents a real challenge to law enforcement agencies, we currently have insufficient evidence to show the true extent of the problem. What this piece does not accept is the implication contained in the quotes, and often made explicit by others, that the use of encryption represents a fundamental and irreversible shift in the balance of power between criminals and their investigators from what previously prevailed. Such claims tend to lack historical perspective, which is one of the themes of this 200th issue of Computer Law and Security Review.     

From ugly duckling to Swan. The rise of data protection and its limits

This article considers the development of data protection laws from a position on the periphery of legal consciousness to the situation where it is the subject of intensive legal and media publicity. Focusing on the recent controversies surrounding the use of Facebook apps for political purposes, the article will consider the role and limitations of data and privacy protection laws. The question will be posed – if not answered – whether national or regional laws can be effective in what increasingly is a global information society.