Informatization of judiciaries/informatización de los poderes judiciales

In today's class of Legal Aspects of E-Government (and optional modules in the Law degree) we are dealing with the informatization of judiciaries in Argentina. For those of us that have been dealing with E-things for more than fifteen years, it results still strange that this topic comes up as “news”...it is good though, so we can publish a book chapter on it.		El la clase de hoy de Aspectos Legales del Gobierno Electrónico (una materia optativa de la carrera de Abogacía) tratamos el tema de la informatización de los poderes judiciales en Argentina. Para aquellos de nosotros que hemos estado tratando con cosas electrónicas por más de quince años, todavía resulta extraño que este tópico se presente como “noticia”...sin embargo es bueno, así podemos escribir un capítulo de un libro sobre eso.

VIII Cogreso de Derecho Informático

VIII Computer Law Conference/VIII Congreso de Derecho Informático

Jointly organized by the Law Programme of the Universidad Nacional de Rio Negro and ADIAR, Asociacion de Derecho Informatico de Argentina (Argentine Computer Law Association), the VIII Conference of Computer Law will take place in Viedma on this coming 30 and 31 of October. There will be speakers from different parts of Argentina and Brasil, and programme will be available shortly.		Corganizado por la carrera de Abogacía de la Universidad Nacional de Río Negro y ADIAR, Asociación de Derecho Informático de Argentina, el VIII Congreso de Derecho Informático tendrá lugar en Viedma los días 30 y 31 de octubre de este año. Habrá ponentes de diferentes partes de Argentina y Brasil y el programa estará disponible en breve.

Winter's end/El fin del invierno

Winter's end		El fin del invierno
After two long years without posting here and like a cicada that sings after a long time underground, it is time to return to blogging. I hope that as the trees grow stronger after the winter storms break apart their unhealthy branches, the many things that happened in the last two years allow my ideas and writing to bloom like in Spring. This time I plan to keep a bilingual blog, that allows Spanish speaking readers to access what is happening on the cyberlaw field in the Anglophone area and, in the same way, permits English speaking fellows to peak into the legal aspects of ICT on the lands that follow the words of Quixote.		Luego de dos largos años sin escribir nada acá y como una cigarra que canta luego de un largo período bajo la tierra, es tiempo de volver a bloguear. Espero que al igual que los arboles que crecen más fuertes luego de que las tormentas invernales rompen sus ramas mustias, las muchas cosas que han pasado en los últimos dos años permitan que mis ideas y mis escritos florezcan como en primavera. Esta vez planeo mantener un blog bilingue, que permita a los hispanohablantes acceder a lo que esta pasando en el campo del ciberderecho en el área anglófona y, de la misma manera, permita a los amigos que hablan inglés husmear en los aspectos legales del las TICs en las tierras que siguen las palabras del Quijote.

SID 2012

We are at SID 2012 (Argentine Symposyum on Law and Informatics) of which I am one of the co-chairs. After more than seven hours the day is resisting to end and we still have two more presentations to go.

The day has had a little of everything, but all interesting and current. The program is here at page 71 (I think) of the whole thing...

Estamos en el SID 2012 (Simposio de Informatica y Derecho) del cual soy uno de los co-chairs. Luego de siete horas el dia se resiste a terminar y todavia tenemos dos presentaciones mas.

El dia tuvo un poco de todo, pero todo interesante y actual. El programa esta aca en la pagina 71 (creo) del mamotreto...

The Return of Electromate/El Regreso de Electromate

After exactly two years without posting on this blog, I think that is time to return to it and to post the same sort of things as before but with more of a bilingual touch so to write in English things that happen in the Spanish speaking world and viceversa...if the force so allows me.

Luego de exactamente dos años sin escribir en este blog, pienso que es hora de regresar al mismo y escribir el mismo tipo de cosas que antes pero con un toque más bilingue, escribiendo en inglés cosas que pasan en el mundo hispánico y vicerversa...si la fuerza me lo permite

"Facebook" list wins elections

A list composed by candidates that met through a Facebook group won the local elections at the beach town of El Condor in the Argentine Patagonia. The list, number 12 for the purposes of the election won the electoral contest against the incumbent, list number 7, getting almost 68% of the votes.

The list was formed by members of the Facebook group “Fanaticos del Balneario El Condor”, who through that group started to “talk” about the possibility of running for office to be the ones administrating the village. It is important to note that the two things the members of the list have in common are being fans of El Condor and Facebook, since as they clarify, regardless the political ideology of the candidates.
El Condor is a village by the sea in the Argentine Patagonia known for its extense beaches, the shallow sea and the practice of kite surfing. It also has the biggest colony of burrowing parrots in the world and it presents visitors with ample opportunities for both shore and boat fishing. 
The election had other IT particularity because one of the poll stations was set up using an electronic ballot box, which constitutes a novelty for the region.

Facebook’s new lawsuit

Paul D. Ceglia has filed a lawsuit in a New York Court alleging that he owns 84% of Facebook and, although Facebook is trying to dismiss it as a frivolous lawsuit, the Judge has found it to have enough entity to order a freeze in all asset transactions for Facebook. The issue arises from an allegation made by the plaintiff (claimant in England) that the current Facebook CEO, Zuckerberg, was paid U$S1000 to build the site, on which Ceglia kept 50% of the interest that grew 1% per day from January 1^st 2004 until the day of completion, February 4^th 2004. This implies that Ceglia owns 84% of the resulting site.

It is not the first time that Zuckerberg and Facebook  get involved into legal trouble originated in him taking either the idea, the code or, in this case, the whole company from somebody’s creativity (besides other cases for many other reasons). Settling this out of court will not help in convincing the more than 500 million users, most of whom are young, that rules are supposed to be complied with and that respecting others’ IP rights is needed...

Consumer Report also does not recommend iPhone 4

As explained in the previous post, it seems that Apple's disregard for costumers and the truth hit a wall with the facts about iPhone 4. The Cuppertino's compny blamed the carrier, then said that it was normal for many phones but Consumer Report tested them and concluded that it was not true: the problem is with the design of the phone and it is no joke...

Disregard for the market and the Apple myth

Following a discussion that has years on the making, the company from Cupertino has given a new example that nerds and designers worship the company based on myths and snobbery more than on actual facts. It has been argued a zillion times that Apple products are better designed and built than Microsoft Windows based ones, and there has been always the argument that Microsoft represented the dark side of the force by always putting profits first while Apple was a more innovation and customer focused company. But has been any truth on that?

I have sustained for years that the only true part of the Apple myth is that in the beginning of the personal computer era it took a very bad business decision and that decision relegated it to the borders of the market, where there is a always a group of people that would defy rational analysis and claim that the product they are using is infinitely superior and the rest of the mortals are all idiots. Furthermore, there is a strong argument to support that today's information society and ubiquity of computers owe a lot to IBM and Microsoft opening of the PC and that it would have been much delayed if Apple's ideas of having the same manufacturer making the computer, the chip, the operative system and most of the software were prevailing ones. Just an example of how things could have been from the cost point of view, a Macbook Pro with Intel i5, 4GB RAM and 320 GB HD is U$S 1,799 plus tax when a Sonny VAIO with Intel i5, 4GB RAM and 500 GB HD is U$S799.99 plus tax (not being Sonny normally on the cheap side). In the same argument I also claimed that to know how consumer oriented a company was you needed to give it some important market share, some power, to see its behavior vis-a-vis its potential, smaller, competitors. That situation arrived with the iPod, where Apple had 73,8% of the market share in 2009 and showed how consumer friendly and pro-innovation Apple policies were. Prohibition to add your own apps, own digital format to ensure that you needed to buy from their store, ludicrously restrictive DRM, and the normal speech that their products were so good that if something did not work with them was because they were too advanced. A prime example of that is the Apple-Adobe saga, with Steve Jobs claiming between other things that Flash is an old technology and, therefore, Apple mobile devices don't support it. Without entering into the technical discussion and assuming, for the sake of the argument, that Steve Jobs is right, it ignores that fact that a lot of people actually uses Flash and it is so arrogant as to claim that because internal combustion engine is technologically old we shouldn't sell more petrol and we should force people to walk until they all can afford hydrogen-cell car. But what epitomizes the Apple myth of actual innovation and costumer care is the new iPhone 4.

It has been widely reported that the phone has a serious design flaw resulting from Apple's discovery that its users care more about good design than functionality (or even functioning) but they then will distort the facts to show how rational their choice has been. The story says that when you hold your new iPhone 4 in the normal way that you hold a normal mobile phone the signal strength drops substantially because in order to make it slimmer (and cooler) the phone antenna is the unprotected shinny part that cover the lower end of the phone, which you are touching when you hold it. Furthermore, if you are left-handed, holding it in a way that avoids touching the antenna would be quite impractical and "unnatural". What was the reply from the very innovative and consumer conscious company? ''Just avoid holding it in that way.''

Ars est celare artem

Lack of technological neutrality as indirect discrimination

The situation could have happened in any European country and the potential buyer/victim be from almost any developing country or the US. After selecting something expensive to buy in a store and having the store attendant to confirm that the items is in stock (most of the times having the item brought to the counter), a valid credit card with sufficient credit limit is not accepted because not having the chip and PIN technology. Once the buyer explains that the policy of not swiping the cards refers to cards that have chip but does not apply to those where the chip is simply not part of the card, normally the attendant or the manager turns into "rude mode" and start to give ridiculous explanations that include phrases like "how do I know that the card is not a fake", not realizing that implying that the buyer is carrying a fake credit card is actually defamatory. But, can they do that?

One tends to think that the store can have any policy it wants regarding to which form of payment accepts and to whom it decides to sell its products, but that thought is oversimplistic and may not be necessarily correct.

Following strictly English contract law, it could be argued that the display of goods constitute an invitation to treat either when the goods are on a shop window (Fisher v Bell 1960) or on the shop's shelves (PSGB v Boots, 1953) and that the buyer makes the offer when requesting the goods (following the classic definition of offer of Carlill v Carbollic Smoke Ball, 1893), offer that the seller has the right to reject and it is normally accepted when the seller takes the payment from the buyer (as when one goes to a supermarket). In the situation in question, that would imply that when trying to pay with a "chipless" credit card the seller simply rejects the offer, but that conclusion has several problems of fact and law.

When a buyer tells the attendant that it wants to buy a particular item he or she makes the offer, which is accepted when the attendant confirms that the goods are in stock and invites the buyer to go to the counter and pay for them. In this situation, paying for the goods and receiving them are steps into the performance of the contract, which the buyer would be complying with by trying to pay with a means of payment established by implication in the same contract when the store displays the logo of the credit card in question. Accordingly, by refusing to take a valid credit card with enough limit to pay for the goods, it is the store the one breaching the contract it has with the buyer. Here it can be pointed out that even in the case of accepting that the store is breaching the contract the buyer only would get a remedy in common law in the case of suffering damages, which don't seem to exist. Still, there could be a case in equity to request specific performance, but is the criminal aspect of the situation the one that deserves further exploration.

When the store advertises a good it does so including a long list of terms that would be attached to the contract to be formed when agreement is reached with the buyer, one of them being that the buyer would be able to pay with a valid credit card that has enough limit belonging to one of the brands advertised on the store's entrance. Therefore, when the store says that its policy is to not accept valid credit or debit cards that have enough limit only because they don't have the chip and PIN technology, it is admitting that is engaging in a misleading commercial practice, as prohibited by the Consumer Protection from Unfair Trading Regulations 2008 that incorporates into English law the EU Unfair Commercial Practices Directive. Furthermore, since there are consumers that would try to look for a different means of payment instead of simply rejecting the new deal that alters the original terms, it can also be argued that the store is engaging in misrepresentation, which could be both a tort or a crime according to England's Misrepresentation Act of 1967.

But the area that could probably subject the store to a stricter legal scrutiny is discrimination, since it can be easily argued that the store in question is discriminating customers for their national origins. The store would argue that it does not discriminate customers due to their national origin because they would sell to people of any nationality that have credit or debit cards with chip and PIN technology, but since the norm, with really few exceptions, is that you need to be resident of a country to obtain a credit or debit card, those who are residents of countries where the chip and PIN technology has not been deployed are, in fact, precluded from buying in those stores. That situation would fit squarely into indirect discrimination, which "involves the application of an apparently neutral provision, criterion or practice to everyone, but it has a disproportionate effect on some people".

Finally, there is the issue of the contract between the store and the credit card brand, which clearly the store is breaching by not accepting valid credit card with sufficient credit limits only due to the use of different technology.

Divorce by SMS in Arab countries and the validity of electronic documents

There has been some noise in the cyberspace referring to the so called “electronic divorce”, which seems is making waves in some places, like Jordan. The issue relates to husbands terminating their marriage via a SMS, and the “fashion” has pick up quickly. According to Islamic judges there were 450 divorces via SMS in Jordan in 2009.

Moral questions aside, the legal problems are various and permeate other civil relations beyond the Islamic world. Although according to some interpretations of Islamic law a husband can divorce his wife by openly telling her that he does not want to keep the marriage three times (the triple Talaq), there are issues about certainty of intention and the mental state of the one issuing the statement. Accordingly, many Islamic jurisdictions have introduced the need to document the wish of the husband, not forgetting that the practice usually includes a month between each Talaq in order to ensure that the husband has thought the matter properly and that he is not acting irrationally or under pressure, which brings us back to divorcing via SMS.

There are many, if not most, jurisdictions that recognize the validity of civil documents regardless the mean of transmission, as clearly exemplified by the EC Electronic Commerce Directive, which for commercial contracts says that they cannot be “deprived of legal effectiveness and validity on account of their having been made by electronic means”. It is true that the same Directive has a provision allowing member states to exclude from the previous requirements “contracts governed by family law”, but the practice has become to not deny validity to documents and expressions of intent solely based on them being in electronic form. Thus, the practice of divorcing via SMS only follows, and exacerbates, an existing trend.

The reactions from Jordan’s society have been varied, going from those that deny validity to divorcing via SMS, like the Jordanian Women Union, to those like the Ministry of Justice of Jordan that put forward a bill requiring probe that the text message has been sent by the husband and that he was not under pressure to send it.

The issue may seem esoteric or relevant to a particular area of the world, but the characteristics of electronic transactions around the globe would be completely changed if the rebuttable presumption that a message originates from the sender and that he/she has acted without pressure or duress is changed into the need of probing that ab initio...

GiKii goes back home

Andres has sent the information that the call for papers and registration is open for Gikii 5. This year it goes back to the city that saw its birth, Edinburgh, but a couple of months earlier, June. Described as "a workshop concerned with exploring the legal interaction between popular culture, speculative fiction, and new technologies" Gikii is a place in the space-time continuum that does not challenge the traditional view of what an academic conference is but it destroys it reducing it to mere intergalactic dust craving for some gravitational force in the form of a black gown to put it back together.

A plus, Edinburgh is really nice in June and you can explore the lenght of the Royal Mile looking for that obscure bottle that has not been chill-filtered and has a hand-written label...

Call for papers for the Argentine Symposium on Informatics and Law (SID)

39 JAIIO - 39 JORNADAS ARGENTINAS DE INFORMÁTICA -
30 de Agosto al 3 de Septiembre de 2010
Ciudad Autónoma de Buenos Aires

SADIO, la Sociedad Argentina de Informática e Investigación Operativa organiza desde hace 38 años las JAIIO (Jornadas Argentinas de Informática e Investigación Operativa) integrando trabajos, investigaciones y actividades bajo un mismo evento. Las JAIIO constituyen uno de los eventos más importantes del sector informático nacional y regional, con presentaciones y exposiciones provenientes tanto de la academia como de la industria.

La organización de las JAIIO contempla un conjunto de simposios separados por área temática, entre las que se incluyen: ingeniería de software, inteligencia artificial, tecnología, agroinformática, high-performance computing, informática industrial, software libre, derecho, salud, sociedad de la información, y un concurso de trabajos estudiantiles. Luego de varios años, las JAIIO vuelven a tener sede en la Ciudad de Buenos Aires.

SID 2010 - SIMPOSIO ARGENTINO DE INFORMÁTICA Y DERECHO
30 y 31 de Agosto de 2010

Mucho tiempo ha pasado desde 1961, en que se iniciaron las JAIIO. El mundo fue cambiando y la presencia de la tecnología en general y de la informática en particular se fue incorporando en la vida de amplios segmentos sociales.
En este devenir de las JAIIO, en el 2001 nace el Primer Simposio Argentino de Informática y Derecho (SID), en cuyo seno se empieza a discutir, en la Argentina, la incipiente pero necesaria relación entre la informática y el derecho.
Mucho se ha avanzado desde entonces en la relación entre Derecho e Informática, pero son cada vez más las cuestiones que, en razón del desarrollo tecnológico, la realidad nos propone y es cada vez más necesaria la búsqueda de la excelencia, la creatividad, y el esfuerzo compartido para avanzar en un único y superior sentido: el mejoramiento de la sociedad. De ahí la permanente actualidad, vigencia y crecimiento del SID.
Con el mismo espíritu pionero del primer día, la comunidad académico-científica de "Informática y Derecho" de Latinoamérica, se reúne en Buenos Aires, en torno al SID 2010, para compartir, aprender, debatir y proponer.

CHAIRS DEL SIMPOSIO
-Prof. Abog. Noemí Olivera, GECSI, Facultad de Ciencias Jurídicas y Sociales, Universidad Nacional de La Plata, Argentina
-Prof. Dr. Aires José Rover, Universidade Federal de Santa Catarina, Brasil

COMITÉ ACADÉMICO DEL SIMPOSIO
-Aída Noblia (AEU, Uruguay)
-Ana Haydee Di Iorio (Fasta, Argentina)
-Araceli N. Proto (CIC FI.UBA, Argentina)
-Ariel Vercelli (UNQ, Argentina)
-Bibiana Luz Clara (Fasta, Argentina)
-Carlos E. Bisso (UNLP, Argentina)
-Carola Canelo (Universidad de Chile, Chile)
-Clara Smith (UNLP, Argentina)
-Claudio Augusto Delrieux (UNPA, Argentina)
-Erick Iriarte Ahon (ALFA-REDI, Perú)
-Fernando Barrio (UNRN, Argentina)
-Fernando Galindo (Universidad de Zaragoza, España)
-Fernando Greco (Ministerio Público de la Provincia de Buenos Aires)
-Gustavo Presman (USAL, Argentina)
-Horacio Fernández Delpech (Presidente ADIAR, Argentina)
-Hugo Cesar Hoeschl (IJURIS, Florianópolis, SC ? Brasil)
-José Miguel Busquets (Universidad de la República, Uruguay)
-Juan Carlos Ponz (UNLP-CALP, Argentina)
-Leopoldo Sebastián Gómez (Poder Judicial Neuquén, Argentina)
-Marcelo Riquert (UNMdP, Argentina)
-María de las Nieves Cenicacelaya (UNLP, Argentina)
-María Florencia Franchini (UNLP, Argentina)
-María Laura Spina (UNL, Argentina)
-Nora Chaponick (INFOLEG, Argentina)
-Orides Mezzaroba (Universidade Federal de Santa Catarina, Brasil)
-Ramón Brenna (UBA, Argentina)
-Rita Gajate (UNLP, Argentina)
-Ricardo Sebastián Piana (UNLP, Argentina)
-Roberto N. Bugallo (UBA-UNCPBA-UNLP)
-Tania Cristina D'Agostini Bueno (Universidade Federal de Santa, Catarina, Brasil)


CALL FOR PAPERS SID 2010
El Comité Académico del Simposio Argentino de Informática y Derecho convoca a los autores interesados a presentar sus trabajos, en las siguientes modalidades:
-Investigaciones que contengan aportes novedosos y debidamente sustentados y que no estén siendo presentados en otras conferencias. (1)
-Prestaciones de casos reales que demuestren impactos significativos, positivos o no, en la gestión informática del derecho.

En ambas modalidades se deberá hacer hincapié en la generación y transmisión de conocimiento que pueda ser apropiado por otros.
(1) En caso que el trabajo sea afín a más de un simposio de las 39 JAIIO, presentarlo indicando los simposios a los que considera puede ajustarse para su evaluación conjunta.

TEMÁTICAS DE LOS TRABAJOS
Los trabajos a presentar deben estar directamente relacionados con, por lo menos, alguna de las siguientes temáticas, sean trabajos disciplinares de Derecho o Informática o interdisciplinarios:
-El Derecho en la Sociedad de la Información.
-El Derecho Informático.
- La privacidad en entornos digitales.
-La propiedad intelectual en la Sociedad de la Información.
-Teletrabajo.
-Comercio electrónico.
-Derechos del Consumidor de productos y/o servicios informáticos.
-Correo electrónico.
-Firma Digital.
-Factura electrónica.
-E-banking: Modelos, problemas, operatorias, seguridad.
-Delitos Informáticos.
-Pericias informáticas.
-Jurisdicción y competencia en la red.
-Resolución de conflictos en el entorno electrónico.
-Gobierno electrónico.
-Democracia electrónica.
-Redes sociales.
-Archivos digitales.
-Informática jurídica.
-Seguridad informática.
-Ontología aplicada al derecho.
-Inteligencia Artificial y Derecho.

PRESENTACIÓN DE LOS TRABAJOS
-Las instrucciones detalladas para la presentación de trabajos serán publicadas a la brevedad en el sitio web del simposio
-Los autores deberán indicar si consideran que sus trabajos pueden ser compartidos con otros simposios.
-Los autores de trabajos aprobados podrán ser invitados a exponer los mismos durante el desarrollo del Simposio.
-Los trabajos deberán tener un máximo de 15 páginas en papel A4 y deben incluir un abstract de hasta 200 palabras, en español o portugués y en inglés El formato de los trabajos es .pdf, cuya plantilla puede descargarse de http://www.springer.com/computer/lncs/lncs+authors?SGWID=0-40209-0-0-0
. Se recomienda muy especialmente respetar el formato especificado.
-Los artículos deberán estar escritos en: castellano, portugués o inglés.
-Al menos uno de los autores de los trabajos aprobados deberá estar registrado en la conferencia con anterioridad a la fecha limite para la presentación definitiva de trabajos (camera ready) a fin de que el mismo sea considerado para su publicación.

FECHAS IMPORTANTES
Fecha límite para la recepción de trabajos: 03 de mayo de 2010 Notificación a los autores: 14 de junio de 2010 Fecha límite para la presentación definitiva de trabajos (camera
ready): 28 de Junio 2010
Inicio de las 39Jaiio: 30 de agosto

New Ibero American Network of Law and New Technologies

More than three months have past since the last posting on this blog and every day that passes it becomes more difficult to re-start to write on it. Not because there are no topics or will to do it but because so many things have happened since the end of July in the e-commerce, IP, IT and related areas that one wouldn’t know where to start from. So, I was waiting for the opportunity, topic that would act as excuse to return to cyberspace and I found it in the creation of the Red Iberoamericana del Derecho y las Nuevas Tecnologias (Ibero American Network for Law and New Technologies) that a friend and colleague, Guillermo Zamora, has started with Marcelo Temperini in Argentina.

The network is presented as a Spanish speaking (at least for now) community of professionals of law and new technologies with the aim of lending a space to be up-to-date, share experiences, ask questions, participate in discussions, Express opinions and, above all, improve relationships. There are three categories of users, or members, which differ in the degree of discount that they receive in the different activities organized by the network, but all having access to most of its features. These features include writing articles, take part in the discussions, recommend legislation or links, organize publications, be part of the network of professionals for the purposes of referrals, invite friends, recommend events and search for information.

It seems that the idea and the platform have been very well thought and the only thing missing is to form part of it…

Too many strange unanswered questions in the McKinnon extradition case

On Friday the English High Court ruled that Gary McKinnon, who fought a long legal battle to avoid being extradited to the U.S. after he was charged with breaking into 97 computers belonging to different branches of the US Government and military in 2001, should face extradition because that represented ''a lawful and proportionate response to his offending.'' Did it?
When one starts to analyse the case there are far too many questions that remain unanswered and make difficult to explain the willingness of English judges to pay such a deference to the US government, which would clearly and legally not do the same if the situation was the other way around. It is important to begin by pointing out that the judiciary is part or a branch of the state that has, as explicit and historic purpose, to serve the interest of the nation (of which its citizens are part). Within that context, even in this world of complex interdependence, the international relations and international agreements of a country have, as ultimate purpose, to give some benefit to a nation and its citizens. Accordingly, to send a country’s citizen to be tried abroad for a crime that has been committed, very likely, both in England and abroad seems very, highly, strangely unusual and it would take from a judge an exercise of imaginative interpretation that would put him very close to disregarding the right to a fair trail, as established by article 6 of the European Convention of Human Rights and incorporated into English law by the Human Rights Act 1998.
There is little doubt about the fact that what McKinnon did in 2001 was and is a crime under both American and English law and, again, it is not easy to explain, regardless the judge and CPS 's spin on it, why a UK national is not tried within UK.
Now, in the unlikely, but possible situation where it is decided that the crime was committed only in the US, can the defendant still be tried in the UK?
Under international law principles, courts can assert jurisdiction over a defendant based on the nexus between the court, the defendant and the crime. Courts can (and normally do) follow the territoriality nexus where the defendant is tried in the forum where the crime was committed. In this particular scenario, deciding where the crime took place would be paramount to know where McKinnon should be tried. Here again, the proper application of statutory and case law to the facts of the case seems to lead to the unequivocal conclusion that a crime has also been committed in the UK. Jurisdiction can also be established based on the nationality nexus, where the defendant is tried within its own country regardless of the place where the offence has been committed. Here again, taking into account that the ultimate purpose of the organization of the state is to act for the benefit of the country and its citizens, courts would normally use this form of asserting jurisdictions where by doing so they understand that a national would not be punished for a crime committed abroad that the home country considers to be serious enough or, on the contrary, the citizen would receive a punishment that results too harsh or disproportionate for that country’s standards. In the case of English law, when dealing with murder and manslaughter, the English courts have jurisdiction over offences committed abroad, if it was committed by a British citizen as established by section 9 of the Offences against the Person Act 1861 and section 3 of the British Nationality Act 1948, and confirmed in R v Cheong (2006) AER (D) 385. There have been also plenty of cases recently where the British Government has requested a British national to be sent to England to be tried for crimes committed abroad but that would have a disproportionate sentence in other country. In the case of McKinnon, even in the unlikely case that it is understood that his crime was committed only in the US, English courts have the legal basis to assert jurisdiction over him and try him here, and taking into account the ultimate purpose of the state, already mentioned before, they must do so.
And all of that without entering into the many other questions that the case arises…
Why, taking into account that the article 8 of the US-UK extradition treaty is so imbalanced in favour of the US and also taking into account the known and acknowledged lack of respect for international law and due process to foreigners and in some cases American citizen (has the judge heard about Guantanamo, the Salgado case, Padilla and hundred of others), the judge still thinks that the response is proportionate? Last week a paedophile that raped a boy was sentenced to 4 years of prison here in England while McKinnon could get a sentence several times longer in the US for entering into those computers looking for information about UFOs, is that proportional? Why the press keeps referring to the hacker “breaking” into the American sites when the hacker actually “entered” into them? (the difference is fundamental because in the non-virtual space it is radically different to be accused of trespass than to be accused of burglary and in the present case McKinnon entered into sites that had the password left blank so he actually did not "break" into those computers). Why the judge is so keen to extradite a British citizen with such a dubious legal basis when higher English courts have refused to extradite foreigners that committed crimes much more serious? In sum, in most countries (developed and not) a ruling that leaves so many strangely unanswered questions would merit an investigation into the judge’s conduct…

Ruling against Google and Yahoo in Argentina

A district court in Argentina has ruled that Google and Yahoo have to pay A$ 50,000 in damages for indexing pages where the name of Virginha Da Cunha and her image have been linked to sexual and erotic content. The claimant, an actress, singer and composer (not being in Argentina never heard about her before), sued the search engines alleging the illegal use of her image and claiming A$ 50,000 in material and “moral” damages from each of the named search engine companies.

The judge Virginia Simari, has understood that the search engines are also Internet sites and that their owners decide what contents are included on them. She also considered that “the activities of the defendants facilitate the access to sites that otherwise would be of difficult access and that, in addition, such a facilitation constitutes de node of one of their activities”. “Therefore, it is possible to affirm that the search engines by contributing to the access to the websites are in the best technical conditions to prevent the damages, and it is that profile of the search engines that generates their facilitating activity liability”.

The judge also considered that the fact that the claimant’s professional activity requires her public exhibition in different manners does not legitimate any kind of use of Da Cunha’s image by third parties. She went on explaining that “the standard to measure the damage caused to somebody’s image is conformed by the context where the images in question are presented. In the present case the existence of images of the claimant on websites of sexual, erotic, pornographic content does not leave place to doubt about the impact on the claimant’s image”.

Needless to say that it is expected that both Google and Yahoo will appeal the ruling, but what is peculiar is the way that the judge links seamlessly the damage caused by the offending sites with the search engines that allow people to find them. It is similar to finding the maker of telephotos or zooms liable for the breach of privacy that a paparazzi may commit, or car maker liable for robberies committed by car (or the council that has responsibility for the street where the car is driven to the robbery). But it shows a bigger problem that is starting to arise in jurisdictions like the Argentine, that have a sophisticated legal culture and system and also a fairly litigious nature but judges with no understanding of Internet and new technologies functioning or their peculiar legal principles. Some time ago we discussed the string of domain name disputes judicial decisions where Argentine judges found always in favour of trademark owners when the other party had also a legitimate right to the domain name (as, for example, a family name), and here we have the same situation again. It probably relates to the fact that to be a judge in Argentina you need to be a lawyer and to be a lawyer in Argentina you don’t need to know any thing about ICT law nor you can, as all but one universities don’t have any class on the topic…

Blackboard software patent litigation, round...whatever

The United States Court of Appeals for the Federal Circuits ruled on Monday that part of Blackboard’s U.S. Patent No. 6,988,138 (“the ’138 patent”), which claims an Internet-based educational support system and related methods, is invalid, and reversed the lower court decision that imposed damages of U$S 3,300,000 to Desire2Learn for infringing that patent. The later company has always argued that Blackboard course management patents are overly broad and were issued improperly, which, as noted by the Court, would run against the principles established in Atmel Corp. v. Information Storage Devices, Inc., 198 F.3d 1374, 1380 (Fed. Cir. 1999) (“consideration of the understanding of one skilled in the art in no way relieves the patentee of adequately disclosing sufficient structure in the specification”). The ruling still leaves some of Blackboard’s claims standing, which, in addition to the already announced appeal, promises to lead to yet more litigation on the matter…

Quis custodiet ipsos custodes? (or the misadventures of proper parenting in an online world)

Newspapers carry the news that yet another girl has been abducted after online grooming and it seems that we could have a news service devoted to things that children have been doing (and they shouldn’t) online and/or what some depraved people have done (or tried to do) to children by using Internet. Probably more than half of the time/space of that news service would be filled with analysis about how dangerous new technologies in general and Internet in particular are for children…and they would be wrong. Information technologies and Internet have the potential to allow children to reach places that we couldn’t dream about when having the same age or allow them to interact with people across the globe and learn about other cultures in ways that no book or library would, but in the same way that children need to be taught how to read, they need to be taught about how to use ICT…and most parents neglect that.
A recent survey suggests that only one in ten parents talk about Internet safety with their kids and there are some cases where parents get quite amused when their kids wander alone online and get into things that they shouldn’t: take as example the 3 years old kid that bought a real digger online when the parents were sleeping…the mother reaction was “It's been a lot of fun”…was it? Or it was a monumental example of irresponsibility from the parents? Would the mother have the same reaction if instead of buying a digger the kid put herself in contact with another “online kid” that then turned out to be a grown up paedophile (like the recent case in Spain)?
It has been repeated hundreds of times but it doesn’t hurt to do it again; Internet is not the problem but parents that use it as an easy way to keep children entertained instead of guiding them through the intricacies of cyberspace, and there is no regulation that can solve that problem. There is, however, an argument that governments and international organizations should devote more resources to the education and information of parents instead of wasting resources in twisting and violating long established legal principles to maintain the profits of industries with obsolete business models. Governments could, for example, mandate the inclusion in the computer manuals and in the ISP connection packs some form of booklet teaching parents the basics of online safety and that would certaintly be better received than forcing ISPs to control users downloading patterns...

A ruling of U$S174,545.45 per song and a result that the RIAA should cry for

In Capitol v Jammie Thomas-Rasset the jury just handed down a sentence of U$S1,920,000 against the defendant for the wilful copyright infringement of 24 songs, which they found Mrs Thomas-Rasset made available for others to download through Kazaa. The claimant (plaintiff in the case because is in the US), Capitol Records, alleged that the defendant made available to others thousands of songs but it decided to concentrate on 24 songs for which it had more evidence. At the end, it seems that the claimants specialists could only link 11 songs to the defendant’s computer, so the actual tag is not U$S80,000 per song as the jury decided but U$S174,545.45 per song (for the other 13 songs even the claimant’s specialists recognized that they couldn’t probe that they had been actually shared). For the remaining 11 songs, there are suggestions that all the evidence was circumstantial, although a lot of it.
The legal issues that the ruling raises are so many and so contentious that several papers can be written out of it (which for sure they will), but there are a couple that stand out as especially relevant. The first is the clarification that the music industry argument that “making available for download” is copyright infringement in the US is wrong. The case had to be retried because in the original case the judge had instructed the jury that making available for downloading was copyright infringement, which clearly contradicted the letter and spirit of the law. In the new trial, there was some evidence, albeit circumstantial, that somebody had downloaded 11 songs from the defendant’s computer, making her liable for copyright infringement by distributing the protected content (one of the exclusive acts reserved for the copyright holder). The other issue is the amount of damages.
The “loss” of the music industry would be in the range of 70 cents per song, which is what it would get of the 99 cents paid for legally downloading each of the songs in questions, so getting an award of U$S174,545.45 per song seems a “little” excessive and, even more, unconstitutionally excessive. In State Farm Mutual Automobile Insurance Co. v. Campbell (2003), 538 U.S. 408, 123 S. Ct. 1513, the U.S. Supreme Court decided that a punitive damage award of $145 million when compensatory damages were $1 million were excessive and violated the due process clause of the Fourteenth Amendment. According to the ruling, compensatory damages have as purpose to compensate a plaintiff for a loss, while punitive damages act as a deterrence and retribution and serve the same purpose as criminal penalties. Civil defendants are not afforded constitutional protections given to criminal defendants, therefore, there is a danger of deprivation of property without due process of law. The Supreme Court used BMW of North America, Inc. v. Gore, where it was established that three factors have to be considered in assessing punitive damages:

1) the degree of reprehensibility of misconduct;
2) the disparity between the actual or potential harm and the punitive damage award; and
3) the difference between punitive damages awarded by the jury and the civil
penalties authorized or imposed in comparative cases.

Futhermore, in order to determine the reprehensibility of misconduct, the most important factors must be:

1) the harm is physical rather than economic;
2) the conduct exhibits indifference or reckless disregard to the health or safety of others;
3) the conduct involves repeated actions rather than an isolated event; and
4) the harm results from intentional malice, trickery or deceit, not just an accident.

Needles to say that the conduct of the defendant Jammie Thomas-Rasset does not get even close to any of the necessary factors needed to justify such a disproportion between the actual loss and the punitive damages.
The RIAA should better put the champagne back in the fridge because when they think that they have won, they actually have handed on a silver plate to those in favour of digital freedom the opportunity to clearly establish that making available for download is not copyright infringement in the US (as already decided) and that their damages cannot not be as outrageous as they currently are.