INTERNATIONAL SEARCH FOR FULL TIME PROFESSORS OF LAW. UNIVERSITY OF LOS ANDES, BOGOTA - COLOMBIA

The University of Los Andes (http://derecho.uniandes.edu.co) School of Law, located in Bogotá, Colombia invites applications for SIX (6) full-time faculty positions in the areas of International Law, Criminal Law, Administrative Law, Public Law or Private Law.

Candidates must be prepared to teach three (3) courses per semester in any of the following areas: Constitution and Democracy, General Criminal Law, Specialized Criminal Law, Criminal Procedure, Comparative Law, Public International Law, International Economic Law, International Human Rights Law, International Moot Court Competition Seminar, Administrative Law, Public Actions, History of Legal Institutions, Legal Theory, Labor Relations, Social Security Law, Property Law and Antitrust Law . Candidates must also be willing to accept the responsibilities that are inherent to their research or teaching profiles as described in the Professor´s Statute.

Candidates must have a law degree and must have completed or be very close to completing the Ph.D., SJD, or JSD by Fall 2009. Candidates may be from any country but must be able to communicate in Spanish though some classes may be taught in English. Candidates with experience in teaching, research and publishing will be given preference. Final candidates will be requested to present a campus interview which includes a presentation of their research project for Los Andes faculty and staff.

Interested candidates should send the following documents:

1. Cover letter addressed to Dean Eduardo Cifuentes, indicating your area of interest (International, Criminal, Administrative, Public or Private Law), the courses that you would be prepared to teach and a corresponding summary of your relevant academic and professional experience.

2. Curriculum Vitae

3. Copy of undergraduate and graduate degree diplomas.

4. Certification of experience in teaching and/or research from an accredited law school or research center that states (a) courses taught and/or (b) research projects in which you have participated in.

5. Copy of your two most relevant publications.

6. Two (2) letters of recommendation from peers or supervisors that can evaluate your teaching and/or research work.

All documents must be submitted no later than October 5, 2008 to:

Faculty Search Committee

Apartado Aéreo 4976

Bogotá, COLOMBIA

The Search Comittee will inform pre-selected candidates on October 17, 2008. Interviews for final candidates will take place October 21-31, 2008. Final decisions on job offers will be taken by November 21, 2008. The Committee reserves the right to declare any of the positions vacant if no suitable candidates are found.

The University of los Andes is a center of recognised academic excellence in Colombia and Latin America. Founded in 1948, Los Andes is an autonomous and independent institution which fosters pluralism, diversity, dialogue and debate in search of academic excellence. It also offers students a critical and ethical formation designed to strengthen awareness of their social and civic responsibilities. The Law School was founded in 1968 as the first law school in Colombia organized by semesters on a credit-based system and that used the socratic method of teaching. In 1997 the school’s program went through an important reform that was again readjusted in 2005 to adopt to newer methods of teaching and changes in legal education. The Law School’s hosts 32 full-time professors, an LL.M. program, and a new doctoral program that began in August, 2008.

II Mercosur Conference of Computer Law

My friends of the Universidad Nacional de Cordoba and Ageia-Densi have posted a short video introducing the forthcoming II Mercosur Conference of Computer Law. Villa Carlos Paz in Cordoba, Argentina, is a very nice place...so, I may see you there in November...

European Court of Human Rights, the hacker and the issue of jurisdiction in Cyberspace

Today has been widely reported that the European Court of Human Rights has refused to hear the case of Gary McKinnon, the hacker that few years ago penetrated NASA and other military systems and was indicted by the US Government, which requested the extradition of the hacker. There are many places that refer the story of McKinnon and the reasons he alleges motivated him to intrude the US defence systems, but it is important, however, to note that although it has been widely publicized that his intentions were to find out whether the US government was hiding evidence about the existence of UFOs, English courts have taken for proven that he

“deleted data from them including critical operating system files from nine computers, the deletion of which shut down the entire US Army’s Military District of Washington network of over 2000 computers for 24 hours, significantly disrupting Governmental functions; 2,455 user accounts on a US Army computer that controlled access to an Army computer network, causing these computers to reboot and become inoperable; and logs from computers at US Naval Weapons Station Earle, one of which was used for monitoring the identity, location, physical condition, staffing and battle readiness of Navy ships, deletion of these files rendering the Base’s entire network of over 300 computers inoperable at a critical time immediately following 11 September 2001 and thereafter leaving the network vulnerable to other intruders” and that “He admitted leaving a note on one army computer reading:

“US foreign policy is akin to government-sponsored terrorism these days . . . It was not a mistake that there was a huge security stand down on September 11 last year . . . I am SOLO. I will continue to disrupt at the highest levels . . .”

So, not much of UFO searching there…

For those really interested in what actually happened and the judicial history of the case in UK, the House of Lords’ case summarizes it properly, but what the case brings back to the table is the issue of jurisdiction, not in civil cases but in crimes committed using Internet. According to Sky news, the hacker’s lawyer has said that his “client's case highlights a worrying trend where UK citizens are at the mercy of the ever-increasing tendency of overseas prosecutors to extend their jurisdiction to crimes allegedly committed in this country”, but is he correct? Has the crime been committed in this country?

The discussion permeates Internet and takes us back to two distinct but interrelated issues, like the principles of criminal jurisdiction in the international arena and the place where a crime is perpetrated. So, when a court has jurisdiction over a defendant accused of a crime? A court would normally have jurisdiction over an allege criminal if there is a connection (nexus) between either the crime or the defendant with the forum of the court, and the nexus could be established based on territoriality (the crime was committed in the court’s forum), nationality (the defendant is national of the forum), protective (a national or an interest of the forum is injured by the defendant actions), and/or universality (every court would have jurisdiction over defendant violating certain principles deemed fundamental by civilized nations). In the case in question, in principle it seems that the US would have jurisdiction over McKinnon based on the protective nexus, but since following these principles more than one country may have jurisdiction over a defendant, there are rules of law and comity that make some of the “prevail” over others. While not strictly true in this case, and mainly due to specific agreements between UK and the US, let’s assume that the territoriality nexus prevails over all the others and that the other forms of nexus should be set apart unless the courts of the territory in question refuse to try a case (like in the Spanish and Swedish intervention in human rights violation cases in Argentina and Chile for the lack of action from the later countries courts). In this hypothetical situation, the issue would be to decide where the crime has been committed and here there are mainly two theories: the initiatory or subjective theory and the terminatory or objective one, where the former understands that a crime is committed where the defendant carries out his actions, in the later the crime is seen as perpetrated where the injury or damage results.

During Imperial times English law has not been, in principle, very friendly to the notion of terminatory theories of criminal conduct and as Lord Halsbury said in Macleod v New South Wales [1891] AC 455, “all crime is local”, but the position changed for most of the 20^th Century until the idea that a crime could be committed in parts was somehow rejected by the House of Lords in DPP v Treacy [1971] AC 537. However, the pervasiveness of information and communication technologies and the possibilities of committing crimes in multiple jurisdictions from a computer connected to Internet and located almost anywhere in the world, brings the necessity of recognizing that for certain types of crimes the objective theory is the only providing the protection to society and individuals that criminal law is supposed to confer. Accordingly, it seems that McKinnon’s lawyer is not right; if any crime has been committed, it is very, extremely likely, that it was committed in the US and he should probably be thinking how to deal with the US lawyer that advised him to not accept the original guilty plea bargain offered by the US Government in a meeting in London…

Back to the eter

After almost a month of holidays (vacations for my fellow Americans) from these virtual “charlas de mate”, it is time to be back to the office, the class preparations and the writings (the holiday was also more virtual than real because I was working most of the days, but at least the normally omnipresent sense of urgency was not there). We also come back with a clean Clustermap (down there on your right), which tells where this blog’s readers are.

Too many things have happened in the IP/IT arena since the last blog posting, but I am sure that there have been plenty of places that have dealt with them, so, as some people have been saying in Denver this week, it is time to depart with the past…

The crappy situation of the scrapping of Facebook’s Scrabulous

After finishing an article on autonomous robots and the law I’ve finally decided to come back to cyberspace to see what has been happening around here. Many things have been going on that deserve the attention, but the one that clearly has caught my eyes (and my incredulity) is the pulling off of Scrabulous from Facebook due to the lawsuit for trademark and copyright infringement that the owners of the trademark Scrabble have initiated against a couple of guys from India who made the product, that though similar, does not cause confusion and is an improvement from the other (and some of the reactions and misinformation that generated). Not been friendly of using bold in blogs, this time they are proper and deserved because it is based on those highlighted facts that some basics of copyright and trademark need to be reviewed.

Starting with the basics (you would expect that this should be already widely known), and focusing on American law (it is a lawsuit in the US, as I understand it), Section 102 of the copyright law, title 17, United States Code, clearly expresses that:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work

So, either the reports are wrong and Hasbro Inc is not suing the Agarwalla brothers for copyright infringement or the company’s lawyers don’t know what to invent to charge whatever fees they are charging to the American company. What could be the copyright on? A checked board with some coloured boxes? Every possible word that you can make in the game? What? Would love to see the suit, so if anyone has it available, it would be very welcomed…If the copyright claimed is on the design of the board, it should be far too easy to change the disposicion of the coloured boxes (doubles and triples) and get around the problem, so it shouldn't be this the reason for taking the game down.

Then we have the issue of the trademark. Trademarks, contrary to the belief of many, do not protect a name per se, but the association of a name, symbol, etc, etc with a product and, originally, was designed as a form of consumer protection. Thus, while it is true that today trademarks are important intangible assets, it cannot be forgotten that if there is no likehood of confusion, it is very unlikely that trademark infringement will exist.

Let’s start for actual trademarks that Hasbro has. In the US it has 5 live trademarks with only the word Scrabble (it has other 3 but there are a composite of words), some of which require a specific font. Since it seems quite clear that Scrabulous has nothing to do with an “apparatus for playing an electronic word game” (registration number 1136336), “equipment and accessories-namely, anagrams, a dice cup, cubes and a timer for playing a word game” (registration number 0802995), “scoring devices and turn-tables used in the playing of games and board games” (registration number 0589217) or “[game including board and playing pieces] equipment and accessories for playing a board game” (registration number 0525405, and this is the original trademark since 1948), we need to assume that the lawsuit refers to the trademark “Scrabble” for “G&S: computer game programs” (registration 2654348).

So, is there a likehood that people will think that Scrabulous is one of the Scrabble’s computer games that the trademark protects? In order to decide whether likehood of confusion exists, in the US, the place of the alleged infringement, we need to follow the Court of Appeal for the 9th Circuit, that in AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979) established that:

In determining whether confusion between related goods is likely, the following factors are relevant:

1-strength of the mark;

2-proximity of the goods;

3-similarity of the marks;

4-evidence of actual confusion;

5-marketing channels used;

6-type of goods and the degree of care likely to be exercised by the purchaser;

7-defendant's intent in selecting the mark; and

8-likelihood of expansion of the product lines.

And the same court had said before that, that evidence of actual confusion may be needed if that is the issue in question, emphasising the importance of factor 4 .

In the present case, there is a strong argument for using the same venue where the name has been used to actually check whether confusion exists. Since the dawn of Internet, IP rights holders have sustained, and the courts have agreed with them, that the use of information technologies change the possibility of infringement to such a degree that it seems to be of a different kind, and the law has been amended accordingly (normally tending to criminalization due to lack of prove of actual damages). So, why not use the same logic to the present case? Instead of wondering whether confusion exists, just ask the users, quite easily and with a couple of clicks, whether they have ever thought that Scrabulous was the same as Scrabble, produced by Hasbro or even endorsed by them…or, will this be another case showing that the irruption of Internet and digital technologies have been used by the IP rights holders to expand their rights and convince governments that taxpayers money needs to be used to combat IP rights infringement, but they are not willing (they are actually avoiding) using the same digital technologies to see whether their claims are true at all? Let's see what the judge decides, but something does not smell good there...

Randy Pausch is now living in the virtual world

Carnegie Mellon University has announced that Randy Pausch departed this world to keep living in the memories of those who have met him and in the realm of cyberspace.

He said that “we cannot change the cards we are dealt, just how we play the hand” and many of us will enjoy and keep seeing the advance of virtual reality because of the way he played his cards…

Getting tough with spam

A judge in Manhattan sentenced a 28 years old man to 30 months in jail for sending spam to more than 1,2 million AOL users and also hiding the source of the messages. The case started in 2005, when the defendant and an accomplice discovered how to circumvent AOL anti-spam filters without showing to the recipients the real origin of the emails. In addition to the custodial sentence, the defendant, Adam Vitale, will have to pay 183,304 dollars to AOL in concept of damages. This sentence follows others, like the ones handed down last year, when Jeffrey Kilbride of Venice, California and James Schaffer of Paradise Valley, Arizona were successfully prosecuted for sending out millions of unsolicited email messages promoting pornographic websites and reaping millions of dollars in the process. Kilbride was sentenced to six years and Schaffer was sentenced to five years and three months. While I don’t believe that law alone will solve the issue of spam, it is clear that in some places the issue is been taken seriously. However, it is important to note that most of the spammers that are prosecuted are accused of a bundle of crimes, like mail fraud, wire fraud, e-mail fraud, aggravated identity theft and money laundering, as well as violation of the CAN-SPAM Act, which is necessary to take into account when thinking about the proportionality of sending somebody to jail for six years due to unwanted commercial emails. Still, while theses judicial actions may grab some headlines, they are unlikely to make a dent in the millions of unwanted emails that circulate across the globe in daily basis…

Google’s Lively, virtual realities and the adieu of Randy Pausch

These days we are dealing with a strange mix of feelings, where the birth of a new space of virtual reality is happening along side the time when one of the masters of virtual reality, Randy Pausch, is leaving this material world (let’s hope that not so soon).

Google has presented Lively, its 3D virtual environment platform, which has not made a good impression on the users. It seems that the user experience for most users is, at best, very bad (I have been waiting for about an hour for my avatar to join the room I created, but I am still waiting), but I don’t think that is a relevant issue for now. Those glitches will be very likely get sorted soon (we are talking about Google here) and the fact that the “virtual room” actually resides in your browser should allow for almost infinite scalability, which due to its enclosed system Second Life could hardly provide. We then go to the terms of service, and here again (I could be accused of having a bias towards the Mountain View company), Google’s ones seem to do what is say on the tin. I have written before about the problems with the Second Life terms of service and the contradictions that they have, which cannot be solved with expression of goodwill from the members of Linden Labs (who without any doubt have the best of the wills). Lively’s terms of service quite clearly establish that the users “own” everything (excepting the software, obviously) and in that way avoiding the inconsistency of SL’s terms of service where the user owns the IP rights (copyright) but Linden Labs the data, which is where the creations are embedded. The fact that in Liverly the user needs to grant a quite broad license is understandable to allow the actual showing, displaying and copying in other users’ computers what the user does. On the other hand, this type of clear cut data ownership would not create the problems of data portability that other virtual reality and social networking sites seem to create/have, which may, paradoxically, give a sense of security to users making them stay. And that is good for business…not only Google’s business but businesses in general: we have only seen the Beta version of Lively and it could be a bit early to prove it, but Lively could be the answer to the failed/non-existent business models of social networks and virtual realities. A 3D room where people get together to talk, chat and share what they want to share by posting things on the walls (their pictures, videos, links etc), which also allows to post on the wall adds, video, links, the Google search engine and anything that you may want to share, show or sale…I don’t like betting (so I never do), but I would do it for Lively…so, this could be the model that take virtual reality 3D from the labs to real main stream use and commerce.

And all happening when the news is that a couple of weeks ago Randy Pausch has suggested that he may stop chemotherapy because the trade-off may not be worth…it could be argue that we wouldn’t have this much to talk about virtual reality without the dedication and the talent of Randy Pausch, and his now famous last lecture confirms that we will always owe to him more than we would be able to express here or there…

Here you have his lecture, and you must take the little more than an hour to watch it...it is worth...

Missouri passes cyber-harassment law but in LA the prosecutors are too creative

The story starts from a tragedy: a 13 years old girl, Megan, committed suicide after allegedly receiving a dozen of cruel messages from a “friend” she made in MySpace, who did not really exist and was probably created by an adult neighbour to find out what the deceased girl was saying about her daughter. After the fictional boy, Josh, decided to break-up “his” relation with Megan and a discussion between the girl and her mother, Megan went upstairs in her home and hung herself using a belt.

Prosecutors in Missouri declined to file charges because there were no state law punishing cyber-harassing, so the state legislature changed the law by removing the need for the communication to be written or over the telephone and clarifying that “[h]arrasment includes communication by any means”. It is important to note that, with the information available (we only know that there were about a dozen of “mean” communications), it is unlikely that under the new law the impersonators of Josh would be prosecuted anyway. While being mean and cruel could be morally or socially despicable, it would be strange if judges decide to start putting people in jail for acting in that manner. Furthermore, the new law defines harassment as to frighten or disturb another person and to

1) By knowingly communicating with another person who is, or who purports to be, seventeen years of age or younger and in so doing, and without good cause, recklessly frightens, intimidates, or causes emotional distress to such other person; or

2) By engaging, without good cause, in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the person's age.

We will have to wait what judges decide regarding some thin-skull principles, but the law seems to exclude this rule by making clear and express reference to a “person of average sensibilities considering the person’s age", and the girl Megan had history of depression, which would put her well outside of being of “average sensibility”…

But the adult neighbour is still being charged, in California! Federal prosecutors are using the Computer Fraud and Abuse Act to charge the woman for conspiracy and accessing protected computers without authorization to get information used to inflict emotional distress, in the place where MySpace is located. The statute was originally created to deal with hackers and others who obtained information from a computer, and it is difficult to see how it can be used when somebody is using its own computer to send information. It is understandable the desire of the girls parents to have justice served in a situation like this and the overzealously of the prosecutors when dealing with kids well-being, but the parents would probably find that tort law may give them some answers because it seems that the federal crime one may leave them with a quite bitter after-taste…

Facebook finally settles with the Harvard trio

It seems that Facebook had finally settled with its founder’s friends at Harvard, who accused Mark Zuckerberg of copying their ideas when creating the social network site. A preliminary agreement was reached in February, but the final one had to wait until now because the claimants (plaintiffs in the other side of the Atlantic) claimed that the agreement was not complete and that Facebook had committed fraud (this is what I call friendship) by not disclosing information related to Zuckerberg’s stocks. However, the Judge for the Northern District of California dismissed the later claims and rules that the February agreement was valid and summoned the parties to a hearing on July 2 to implement it.
The original suit was brought by the Winklevoss brothers and Divya Narendra, who accused Zuckenberg of stealing the ideas after being hired by the trio to write some code for a site called Harvard Connection. In the agreement Facebook seems to buy Harvard Connection, in a price combining cash and stock but the financial terms have not been published.

Now that this part of the legal issues is over, it is to be seen if Facebook can use the time to try to find a viable business model…

The Third International Conference on Legal, Security and Privacy Issues in IT Law (LSPI)

CALL FOR PAPERS

The Third International Conference on Legal, Security and Privacy Issues in IT Law (LSPI)

Date: September 3-5, 2008 Place: Prague

The International Association of IT Lawyers (IAITL) and the University Economics Prague invite you to participate in the 3rd Intl. Conference on legal, security and privacy issues in information technology law.

The Conference is an opportunity for academics, practitioners and consultants to come together, exchange ideas, and discuss emerging issues in IT law and the emerging technological environment. We invite contributions focusing on Legal, Security and Privacy Issues of IT, including:


· Cybercrime
· E-signatures
· E-forensics and Evidence
· Email monitoring and privacy issues in the workplace
· Data retention & protection
· Intellectual Property Rights
· Contract and Tort
· Virtual Companies
· E-commerce law
· Media & entertainment law
· Data mining
· Internet Freedom
· Phishing,virus,malware etc.
· Trustmarks
· Legal risks and protection strategies
· E-government& edemocracy
· Privacy, Virology and security issues
· Jurisdiction in Cyberspace


· Mobile technology
· Robots &Intelligent agents
· Consumer Protection
· Cross-border ADR and Litigation
· Content Regulation and Liability Issues
· Telecommunication law and technology
· Licensing and franchising
· IT Outsourcing
· Taxation of cross-border transactions
· Jurisdictional barriers to regulation and enforcement
· E-trade
· Audio-visual technology
· Broadband technology
· Virtual worlds: regulation and taxation issues
· Biometrics


The conference committee is seeking submissions of papers for oral presentations at the conference in three major categories:

• Academic, peer reviewed papers - these papers will be peer reviewed by members of the program committee and other independent reviewers (where necessary) and will be published in the under a non-exclusive copyright agreement in the edited conference proceedings with ISBN. All papers will also be published in several leading international journals. Case studies, abstracts of research in progress, as well as full research papers will be considered for the conference program for presentation purposes. However, only complete papers will be published in the proceedings. Previously published peer-reviewed papers will also be considered, provided the authors (s) are granted license from the publisher and publication information are noted in the article.
• Presentations based on a short abstract
• Non-academic papers - these papers will not be peer reviewed. These papers will be selected on merit by the program committee. This category covers corporate papers, best practices, new technologies, policy issues etc.

For complete papers, authors must provide about 150 word abstract and five keywords. There is a maximum page limit of 15 pages (single-spaced, Times Roman”10”). All photos, tables and figures must be in jpg format. Papers must be submitted in the correct template, which may be downloaded from the website.
All information enabling the identification of authors must be removed from submissions undergoing academic peer review. Please send in a separate attachment in a word document, the following information: Title, Affiliation and Author’s Name.

All papers will be proof read and published in paperback and hardbound edition (with ISBN) and in international journals. Elsevier Publishing is sponsoring the Best Academic Papers award.


Send submissions by electronic mail in a Word document to:
submit@lspi.net or sylvia@kierkegaard.co.uk


For further information, please contact:

Sylvia Kierkegaard sylvia.kierkegaard@lspi.net ; contact@lspi.net

Jiri Strouhal strouhal@vse.cz +420606887164.

IMPORTANT DATES:
Submission Deadline for Full Research Papers: August 1, 2008
Submission Deadline for Abstract Presentations: August 15, 2008
Notification of Acceptance: August 3, 2008
For papers submitted before the deadline, authors will be notified 7 days after submission
Final Camera-Ready (Proceedings) Version and Registration: August 10, 2008

For further details about the Conference:
www.lspi.net

International Law and Trade Conference (ILTC)

CALL FOR PAPERS

International Law and Trade Conference (ILTC)

www.iltc.eu

Date: September 3-5, 2008
Place: University Economics Prague, Prague, Czech Republic

The Conference, organized by the International Association of IT Lawyers in cooperation with the University Economics Prague, provides an opportunity for academics, practitioners and consultants from different backgrounds to dialogue on important issues relating to international law, trade, commerce, and information technology.

We invite contributions on related topics, including but not limited to:

WTO agreement and related matters
Financing and Money Laundering
Environment, Sustainable Development and Trade
Illicit Transfers of Cultural Property
Foreign Investment
State Intervention in Trade
Globalization, National Identity and Free Trade
Trust & Corruption
Transcending Cultural Barriers in Trade
Tourism and Trade
Democracy and Trade
Taxation, Business and Finance
Jurisdiction and Enforcement of Judgments
Internet law & E-Commerce
Privacy and Data Protection
Marketing
E-government and Procurement
Business and Finance
Maritime Law & International Transport
Media Law
Int’l Arbitration, Mediation, & Dispute Resolution
Sports Law


The conference committee is seeking submissions of papers for oral presentations at the conference. Submission papers are classified into 2 categories:

• Full paper: These papers will be peer reviewed by members of the program committee and other independent reviewers (where necessary) and will be published under a non-exclusive copyright agreement in international journals and conference proceedings. Previously published peer-reviewed papers will also be considered, provided the author (s) are granted license from the publisher and publication information are noted in the article.
• 
  Short papers, including case studies, research in progress, or industry practices, are also welcomed as a basis for oral presentation and comment.

All accepted papers will be published in leading international journals.
Authors must provide about 150 word abstract. There is a maximum page limit of 15 pages (single-spaced) for full papers; however, it is anticipated that submissions will be between 4500 and 6000 words. For full papers submitted for peer review, identifying information should be removed. Please send in a separate Word attachment the following information: Title, Affiliation and Author's Name.

When preparing your final version of the manuscript, please ensure that you use the conference template.

Send submissions by electronic mail in a Word document to: submission@iltc.eu

Important Dates:

Submission Deadline for Full Research Papers: August 1, 2008
Submission Deadline for Abstract Presentations: August 15, 2008
Notification of Acceptance: August 3, 2008
For papers submitted before the deadline, authors will be notified 7 days after submission
Final Camera-Ready (Proceedings) Version and Registration: August 10, 2008

ICANN is putting the S in SEX 1.0

These days there has been much fuss about the decision of ICANN to approve “a recommendation that could see a whole range of new names introduced to the Internet's addressing system”, and, while some of the concerns are legitimate, people forget that ICANN is fulfilling the mandate of its “creator”, the US Government. It is interesting though, that in reporting the news, most newslets refer to ICANN as the “Internet regulators”, and when in Rio’s IGF I explained why ICANN was the regulator of Internet some members of the board felt almost offended going as far as saying “it was painful to see how misinformed was Barrio” (from an internal ICANN email that was forwarded anonymised to me)…it seems that there are many misinformed people or somebody does not know what a regulator is…
Going back to the opening of the TLDs to new names or strings of letters, in the memorandum of understanding for which the Department of Commerce of the US transferred to ICANN the management of the DNS system, it is clearly stated that one of the agreement’s aim was to create a system that “promotes the management of the DNS in a manner that will permit market mechanisms to support competition and consumer choice” with the purpose of “lower[ing] costs, promot[ing] innovation, and enhance[ing] user choice and satisfaction”, and ICANN decision is a correct step in that direction. Although it could be argued that there is no other way around due to the need of stability of the network, the current system promotes competition during the allocation of the administration of a domain to a registry to then secure a monopoly (this can not be understood as a criticism because with the current protocols could not be in any other way, if not we will be reading daily about registries failing and part of the people disappearing from cyberspace), so ICANN’s next move is to open up the possibilities of getting that sort of “monopoly” to a greater number of persons, which seems to be the correct thing to do.
What precedes does not imply that doing the correct thing is trouble-free or that it cannot be perfected (it also important to remember that ICANN itself has acknowledged that the definitive version of the proposal needs to be properly worked out and there are several technical issues to deal with). Some of the problems have been properly identified in Monika Ermert’s post on IP Watch, like the concerns of brands' rights-owners (I don’t agree with the denomination of “brand-owners”) about new possibilities for cybersquating.
On IP Watch blog Jay Scott Evans, former chair of ICANN’s Intellectual Property Constituency and senior legal advisor for Yahoo is quoting saying “Why should brand owners have to invest huge amounts of money to protect their brands?” and the answer is quite straight forward: because trademark is a private right, granted by the State “to guarantee the identity of the origin of the marked product to the consumer or final user by enabling him to distinguish without any possibility of confusion between that product and products which have another origin”, as properly explained in Pfizer Inc -v- Eurim-Pharm Gmbh R-1/81; [1981] EUECJ R-1/81; 1 CMLR 406, and if there is a case of infringement it should be the rights’ “owner” the one protecting its rights. If there is any damage to consumers, through bogus websites impersonating a legitimate one, there are other resources that the state can use to avoid that activity, like fraud legislation, as example. Why public resources should be used to guarantee private corporations profits? Isn’t enough that through trademark law the state guarantees an always-renewable monopoly over the use of part of the common language? (and I am not ignoring the fact that due to what I call the prostitution of IP law trademark infringement has been criminalized in most jurisdictions). The proposal of creating a reserved list fails to acknowledge that a domain name may have more than one person with valid title over it, and tries to give an unfair (I would say illegal) advantage to those who have the rights over renowned brands.
Mr Evans goes further by saying that “[t]he day is coming when some aggressive trademark owner will start litigation against either ICANN, the registry or the registrar”, probably hoping to frighten ICANN board members or creating the precedent that somebody could use later in court (adducing that these parties are facilitators, probably thinking that if it worked in the Grokster case, why wouldn’t work in a trademark case too). I am quite confident that ICANN board members have quite thick skin to be frightened by such a tenuous threat, but I am not very sure if the Senior Legal Counsel of Yahoo is implying that Yahoo should be liable for “facilitating” trademark infringement in its searches and copyrights infringement on his many sites…do you want to rephrase that counsel?

Breeding open standard foxes

Living in a city where it is quite common to see red foxes wandering around, and having one "meeting" me half a way between the train station and my house every time I arrive home late after work, there is little doubt that I should take part of the campaign to make Firefox 3 the most downloaded software in a day (and hopefully the most used browser in Internet). And language is not an excuse...

Cordoba and the future of Internet

I'm back from a trip to Argentina where I visited friends, engaged in some court cases, talked with universities about cooperation and participated, as keynote speaker, in the III Argentine National Conference of Computer Law. I also had the opportunity to give a lecture as guest professor at the School of Law of the Universidad Nacional de Cordoba, the third oldest in Latin America and one of the most prestigious south of the Rio Grande, where I talked about Internet security and regulation using the same multi-layered and multi-section analysis that I've been carrying out in other topics since my doctoral studies. There I went through the systemic, company and personal areas at infrastructure, applications and user levels to see what are the possible threats, the potential solutions and the regulatory responses to Internet security issues. Then, today, when logging in to Facebook I've found that Jonathan has posted a link to his appearance in The Colbert Report, where he uses his little more than 6 minutes to deal with the same issues (with a "little" more of authority and quality). As I told Jonathan few weeks ago, I have the English version of his latest book, but I am still hoping to get the American version of it and then have it signed (the content is the same but I like the cover better and, yes, I am snob).

Amazon to pay taxes in…everywhere

Once upon a time, after finishing my PhD dissertation I said that I wouldn’t deal with or write again about Internet taxation (both my Master and PhD dissertations were about e-commerce taxation), but it seems that some recent developments may imply that e-taxes could have some value for academic analysis again.
The fact giving raise to an array of legal issues has been the decision of the State of New York to charge sales taxes to Amazon based on the existence of physical presence through the Amazon Associates that the State understands act as the Seattle-based company’s agents. The rule has been that as long as a retailer does not have a physical presence in the buyer’s state, the seller does not need to collect sale taxes. While some thought that the rule had to be changed to look similar to that of the EU’s VAT in regards to electronic commerce (the topic of my master’s thesis), what the State of New York did was simple to expand the concept of physical presence. The State’s reasoning is that if Amazon gets a commission for the Associates’ sales, the later become Amazon agents and, accordingly, Amazon would start having physical presence.
If we follow Fortune Magazine

In truth, all purchases on Amazon have always been subject to taxes. Until now,
only four states required Amazon itself to collect the tax: Washington (where
Amazon's HQ is), North Dakota (the site of customer relations operations),
Kentucky and Kansas (those last two contain large Amazon distribution centers).
In other states, shoppers are supposed to keep track of their untaxed
out-of-state purchases and report them in their state income tax returns every
year. Needless to say, this doesn't always happen.

In any case, the State of New York law requiring the collection of taxes in such unorthodox way does not differ much from most tax laws that create legal fictions in order to create a nexus between an act of commerce and a tax jurisdiction based purely on tax policy. It seems that now that some states, probably followed by all the others, have decided to put on the same foot Internet retailers and brick and mortar retailers from the tax point of view, we could discuss again what is the ideal legal fiction to attract tax liabilities that are fair, clear and simple. On the other hand, it has been clear for many years that the tax policy of not taxing Internet commerce to promote its development has been, again, the result of successful lobbying, ignorant policy makers and general public lack of interest (all mix with some dose of misinformation). There has never been a strong case for subsidizing Internet commerce development, not because such a development has not to be welcomed, but because such subsidy has not been necessary (few industries have growth so quickly and strongly and have made more people billonaires, and it could be argued that in order to violate the principle of technological neutrality in tax issues a very strong case should be put forward).
So, it may be time to review some of my old books and see what happen in the formerly hot area of Internet law…

Terceras Jornadas Argentinas de Derecho Informático

ORGANIZAN:
ADIAR - Asociación de Derecho Informático de la Argentina -
AGEIA DENSI - Asociación Grupo de Estudio e Investigación Académica en Derecho, Economía y Negocios en la Sociedad de la Información.-

COLEGIO DE ABOGADOS DE CORDOBA.

FACULTAD DE DERECHO Y CS. SOC. (UNC)

El próximo Viernes 13 de junio de 2008, se realizara el evento mas importante del año en Derecho Informático de Argentina, con la participación de exponentes Nacionales e Internacionales. Juristas especialistas y Técnicos reconocidos mundialmente, se harán presentes en esta Ciudad, para exponer y presentar importantes temas de la problemática de la sociedad de la información y el cambio de paradigmas originados en la Economía y el Derecho.

Cuatro son los Paneles programados para este evento:

- NOMBRES DE DOMINIO

- PROPIEDAD INTELECTUAL

- VOTO ELECTRÓNICO

- DELITOS INFORMÁTICOS

Dicha presentación se realizara en la Sede de la Facultad de Derecho y Cs. Sociales UNC a partir de las 8:00 hs. del Viernes 13 de Junio.

INSCRIPCIONES Y ACREDITACIONES anticipadas a info@densi.com.ar

Entre los asistentes contaremos con la presencia de:

Dr. Fernando Barrio, Profesor de Derecho del Año en el Reino Unido, Profesor en la London Metropolitan University

Dr. Horacio Fernández Delpech, Presidente de la Asociación de Derecho Informático de la Argentina, Autor de " Internet y su Problemática Jurídica".-

Dr. Carlos Dionisio Aguirre, Representante de los Usuarios de América Latina y el Caribe en el Gobierno Mundial de Internet. ( ALAC-ICANN).-

Raúl Echeverría, Presidente del Registro Regional de Nombres y Números de Dominios para América Latina y el Caribe - ICANN (LAC NIC)-.

Gustavo Soliño, Director del NIC Argentina.-

Dr. Ricardo Sáenz, Pte. Asoc. Fiscales y Funcionarios Justicia Nacional

Dr. José María Pérez Corti, Secretario del Juzgado Electoral de la Provincia de Córdoba.-

Alberto Oscar Uez, Director Centro Cómputos Trib. Federales Córdoba.

Dr. Matías Altamira Gigena, America Latina y Caribe Nom Com (ICANN)

Dr. Guillermo Zamora, ADIAR

Dr. Martín Carranza Torres, BSA en Argentina.-

Dr. Aníbal Pardini, Dirección de Informática de la Provincia de Córdoba

Dr. Rolando Ortega Hernández, Univ. Santa Maria, Caracas-Venezuela

Dr. Dante Rossi , Legislador Provincial

Dr. Fernando Machado, Funcionario Municipal

Dr. Gonzalo Ferreras, Pte. AGEIA DENSI Argentina

Dr. Andres Piazza, ColorIuris Argentina

y Usted.

Córdoba, viernes 13 de Junio de 8 a 20 hs. , Facultad de Derecho (UNC). Casco Histórico, Manzana Jesuítica.

Reading, blogging and machinima

After a month far from the blogosphere I've decided to see what has been going out there and what place better than Technollama (Andres is the guy that gives good name to all those who were born south the Rio Grande). In addition to the knitting wars saga, I found this machinima directed by Hugh Hancock...which reminds me that in November we organized the event "Bloodspell: The rise of the machinima" (there is a link to the audio) where Hugh, Andres, Ian and Lilian talked about some legal issues with machinima, and few months later an article about legal issues with machinima appeared in the SCL' s magazine with the title "The rise of the machinima", not mentioning either the event, the discussion or Bloodspell...I do believe in coincidences, so no big deal (more than suggesting a little more of research because if you google "rise of the machinima" the event comes second -or is just me that googles titles before putting one?- and writing an article about machinima without mentioning Hugh, who coined the term, should be quite difficult).
But here it goes the machinima for Fair Trade...

PS: Please note and check Alex's comment where the fact that it is a coincidence is further explained

GikIII

From Technollama

GIKIII
Oxford Internet Institute
September 24-25, 2008

We are glad to announce the third edition of GikII (appropriately renamed GikIII), which will take place 24-25 September 2008 at the Oxford Internet Institute in, errr... Oxford!

GikII is so cutting edge that it is the nano-blade of workshops, so expect all sorts of challenging papers, tenuous legal connections, l33t powerpoint and keynote skillz, uber-geekery, and a healthy dose of lolcatz. Previous GikIIs explored Facebook privacy settings before privacy had become fashionable; it looked at the legal issues in Harry Potter and the Order of the Phoenix, anime, lolcatz, fandom, virtual property and tattoos.

The call for papers

If you would like to participate, email your abstract of no more than 500 words. This should be sent to either l.edwards@soton.ac.uk or a.guadamuz@ed.ac.uk by July 15 2008. We will confirm acceptances by August 1. Abstracts may be accepted after this date depending on whether the workshop is full. Numbers will be limited so book now!

No n00bs allowed.

Sexbots, cyberporn and other wild animals

Some newslets have been discussing for a while that according to David Levy’s book we will all be soon bonding with robots as we bond with humans (and in many cases quite better). But what caught the attention of different publications is the fact that Levy predicts that some (actually a lot) people will prefer robots as sexual partners. We’ll have to read the book to see the whole analysis and the source of its conclusions, but it serves to repeat that according to Levy’s thesis “

Robots will be hugely attractive to humans as companions because of their many talents, senses and capabilities." Given rapid developments in technology, Levy believes that it is only a matter of time before machines will be capable of offering human-like traits. According to Levy, "love and sex with robots on a grand scale are inevitable."

And that “When it comes to sex, robots could soon supplant the original flesh-and-blood human experience”.
As somebody purportedly said, “it is difficult to make predictions, especially about the future", but we can easily guess that if only part of what Levy predicts become true there will be plenty of legal issues to write about (taking into account the developments in sexbots we could argue that we are already there and Hajime Sorayama has been producing some really nice art making people to wish for one of those robots).

What will happen if a robot forces sexual intercourse? Will it be rape? The Sexual Offences Act 2003, in its Part 1 Section 1.1 clearly states that “[a] person (A) commits an offence if…”, so it seems clear that a robot could not commit rape. But what about section 2.1 of the same act, which reads “[a] person (A) commits an offence if (a) he intentionally penetrates […] with a part of his body or anything else…”, can the programmer of the robot be charged? In this case, will we have “processor rea” instead of “means rea”?
What about the use of robots to produce pornographic materials and then posting them online? In the case of UK it seems that the the test still will be Section 1 of the Obscene Publications Acts 1959, which says that:

an article shall be deemed to be obscene if its effect or (where the article
comprises two or more distinct items) the effect of any one of its items is, if
taken as a whole, such as to tend to deprave and corrupt persons who are likely,
having regard to all relevant circumstances, to read, see or hear the matter
contained or embodied in it.

Now, can seeing a robot engaged in a sexual act be categorized as an activity tending to deprave and corrupt? It is important to remember that is has been established by the courts that the test refers not only to the type of material but also to the number of people that might be affected, especially if they are children or youg, and in Internet cases is where Lord Justice Kennedy dictum in R v Perrin [2002] EWCA Crim 747 can shed some light on the topic by saying that “it is precisely the sort of material which some young would seek in the privacy of their own bedrooms and it is they who have to be protected, so far as is possible, by the law”. However, it is not clear what the answer would be in this situation.
Could it be indecent instead of obscene? No easy definition of indecency exists and we could probably still use Lord Reid’s definition presenting it as “anything which an ordinary decent man or woman would find to be shocking, disgusting, or revolting” in Knuller v DPP [1973] AC 435. Indecency is easier to prove than obscenity because there is no defence of public good, there is no need to consider the article as a whole and there is no need to satisfy the "deprave and corrupt" test.There is probably a whole book to be written about the legal issues of sexbots and their use in cyberporn, without even going into what would happen when some weirdo starts using robots to satisfy some paedophilic appetite…