From Lord Coke to Internet Privacy: The Past, Present, and Future of Electronic Contracting

Contract law is applied countless times every day, in every manner of transaction large or small. Rarely are those transactions reflected in an agreement produced by a lawyer; quite the contrary, almost all contracts are concluded by persons with no legal training and often by persons who do not have a great deal of education. In recent years, moreover, technological advances have provided novel methods of creating contracts. Those facts present practitioners of contract law with an interesting conundrum: The law must be sensible and stable if parties are to have confidence in the security of their arrangements; but contract law also must be able to handle changing social and economic circumstances, changes that occur at an ever-increasing speed. Contract law, originally designed to handle agreements reached by persons familiar with one another, evolved over time to solve the problems posed by contract formation that was done at a distance — that is, contract law had developed to handle first paper, then telegraphic, and finally telephonic communications. It has handled those changes very well. In the 1990s, however, things began to change. The rise in computer use by individuals coupled with the advent of the World Wide Web gave rise to two parallel developments, both of which challenged the law of contract formation. Increased computer use created a demand for software programs designed for the consumer market, and those programs were commonly transferred to users by way of standard-form licenses that were packaged with the software and thus unavailable before the consumer paid for the software. Also, parties in large numbers began to use electronic means — the computer — to enter into bargained-for relationships. The turn of the millennium brought two electronic contracting statutes, the Electronic Signatures in Global and National Commerce Act (“E-Sign”) and the Uniform Electronic Transactions Act (“UETA”), which removed any doubts that contracts entered into electronically could satisfy the Statute of Frauds. Encouraged by the certainty given by those statutes, internet businesses started offering contract terms on their websites, asking customers to consent to terms by clicking an icon, or by not seeking express assent at all by presenting terms of use by hyperlink. The ease of presenting terms comprised of thousands of words by an internet hyperlink makes it easy for a vendor in its terms of use and terms of service to ask us to give up privacy rights and intellectual property rights. Modern communications technologies therefore make it easier for parties to engage in risky transactions. Nevertheless, we believe that, with few exceptions, the common law of contracts is sufficiently malleable to address the problems arising out of that behavior and where it is not, regulation of contract terms is appropriate. This Article examines those developments

Application of the war of attrition game to the analysis of intellectual property disputes

In many developing countries intellectual property infringement and the commerce of pirate goods is an entrepreneurial activity. Digital piracy is very often the only media for having access to music, cinema, books and software. At the same time, bio-prospecting and infringement of indigenous knowledge rights by international consortiums is usual in places with high biodiversity. In these arenas transnational actors interact with local communities. Accusations of piracy often go both ways. This article analyzes the case of southeast Mexico. Using a war of attrition game theory model it explains different situations of intellectual property rights piracy and protection. It analyzes different levels of interaction and institutional settings from the global to the very local. The article proposes free IP zones as a solution of IP disputes. The formation of technological local clusters through Free Intellectual Property Zones (FIPZ) would allow firms to copy and share de facto public domain content for developing new products inside the FIPZ. Enforcement of intellectual property could be pursuit outside of the FIPZ. FIPZ are envisioned as a new type of a sui generis intellectual property regime

Trademark Vigilance in the Twenty-First Century: An Update

The trademark laws impose a duty upon brand owners to be vigilant in policing their marks, lest they be subject to the defense of laches, a reduced scope of protection, or even death by genericide. Before the millennium, it was relatively manageable for brand owners to police the retail marketplace for infringements and counterfeits. The Internet changed everything. In ways unforeseen, the Internet has unleashed a tremendously damaging cataclysm upon brands—online counterfeiting. It has created a virtual pipeline directly from factories in China to the American consumer shopping from home or work. The very online platforms that make Internet shopping so convenient, and that have enabled brands to expand their sales, have exposed buyers to unwittingly purchasing fake goods which can jeopardize their health and safety as well as brand reputation. This Article updates a 1999 panel discussion titled Trademark Vigilance in the Twenty-First Century, held at Fordham Law School, and explains all the ways in which vigilance has changed since the Internet has become an inescapable feature of everyday life. It provides trademark owners with a road map for monitoring brand abuse online and solutions for taking action against infringers, counterfeiters and others who threaten to undermine brand value

Кибербезопасность в образовательных сетях

The paper discusses the possible impact of digital space on a human, as well as human-related directions in cyber-security analysis in the education: levels of cyber-security, social engineering role in cyber-security of education, “cognitive vaccination”. “A Human” is considered in general meaning, mainly as a learner. The analysis is provided on the basis of experience of hybrid war in Ukraine that have demonstrated the change of the target of military operations from military personnel and critical infrastructure to a human in general. Young people are the vulnerable group that can be the main goal of cognitive operations in long-term perspective, and they are the weakest link of the System.У статті обговорюється можливий вплив цифрового простору на людину, а також пов'язані з людиною напрямки кібербезпеки в освіті: рівні кібербезпеки, роль соціального інжинірингу в кібербезпеці освіти, «когнітивна вакцинація». «Людина» розглядається в загальному значенні, головним чином як та, що навчається. Аналіз надається на основі досвіду гібридної війни в Україні, яка продемонструвала зміну цілей військових операцій з військовослужбовців та критичної інфраструктури на людину загалом. Молодь - це вразлива група, яка може бути основною метою таких операцій в довгостроковій перспективі, і вони є найслабшою ланкою системи.В документе обсуждается возможное влияние цифрового пространства на человека, а также связанные с ним направления в анализе кибербезопасности в образовании: уровни кибербезопасности, роль социальной инженерии в кибербезопасности образования, «когнитивная вакцинация». «Человек» рассматривается в общем смысле, в основном как ученик. Анализ представлен на основе опыта гибридной войны в Украине, которая продемонстрировала изменение цели военных действий с военного персонала и критической инфраструктуры на человека в целом. Молодые люди являются уязвимой группой, которая может быть главной целью когнитивных операций в долгосрочной перспективе, и они являются самым слабым звеном Систем

Could the doctrine of moral rights be used as a basis for understanding the notion of control within data protection law?

This is an Accepted Manuscript of an article published by Taylor & Francis Group in Information & Communications Technology Law on 1 April 2018, available online at:https://doi.org/10.1080/13600834.2018.1458449. Under embargo until 1 October 2019.This article considers the notion of individual control of personal data as envisaged by the European data protection framework and makes the argument that it is a poorly-understood and under-developed concept, but that our understanding of it may be improved by way of analyses and comparisons with the doctrine of moral rights, an important constituent element of intellectual property law. The article starts by examining the concept of personal data itself, and why an enhanced level of individual control over personal data is thought to be a desirable regulatory objective. Following this, the article examines the scholarly literature pertaining to individual control of personal data, as well as a range of relevant EU policy documents. Having done so, the article argues that the notion of control is muddled and confused from both theoretical and practical perspectives. Following this, the article considers the doctrine of moral rights, and through an exploration of its theoretical and practical elements highlights why it may be of assistance in terms of enhancing our understanding of individual control in the data protection context.Peer reviewedFinal Accepted Versio

Money Down the (Brand) Drain : An exploration of the constraints of the adoption of brand strategies and the adversity facing investment in brands by Chinese suppliers

This paper explores the perception by Chinese marketing academics and consultants of benefits and constraints of the adoption of branding techniques. We explore the lived experience of Chinese branding experts to capture their experience of branding in China by means of 19 phenomenological interviews. There are differences between the Western and Chinese conception of brands, these in China serve a more social function and are associated with social processes. The Chinese economy has the characteristics of a large state economy and has large state-owned conglomerates which have strong brands as a result of Government support. Non-state owned businesses have much more difficulties innovating and building brands because of scarce resources. Business leaders in China seem to have a short term orientation, and there is evidence that they tend to select strategies based on imitation of leading brands, as well as that of manufacturing and marketing mass produced, low cost products. This proliferation of generic products and “me too” brands is complemented by a plethora of counterfeit goods. Chinese leaders do not have incentives to invest in long term innovation and brands, nor in brand management as they feel these investments cannot be protected from counterfeiting; at the same time, the competitive climate means that Chinese non-state owned companies need to be very responsive and achieve fast returns in order to survive. Policy makers should strengthen IPR protection legislation and counteract counterfeiting; foreign investors and local companies are advised to adopt mobile defense strategies for their brands

The economic impact of consumer copyright exceptions: a literature review

Advances in the technology available to consumers have fundamentally altered the relationship between authors, rights-holders and consumers with regard to copyrighted creative works. The copyright system in the UK is undergoing a gradual process of reform to reflect this new reality. In 2006, Andrew Gowers, a former editor of the Financial Times, presented a report into the state of intellectual property in the U.K. Among his policy recommendations were three proposed changes to the copyright exceptions system which alter the way in which consumers can interact with copyrighted works. Gowers proposed introducing copyright exceptions for: - Format shifting, for instance the transfer of a piece of music from a CD to an mp3 player. - Parody, caricature and pastiche. - Creative, transformative or derivative works. In our context, this definition includes user-generated content. Our review examines the existing literature on the possible economic effects of these proposed changes to the copyright exceptions system, specifically whether the introduction of these proposed changes would cause economic damage to rights-holders. Whilst the economic issues surrounding copyright infringement via file-sharing and commercial "mash-ups" are interesting and important, our review is focused solely on copyright