created a new type of money, a new tradable value. In other words, it created a way for there to be digital cash. Blockchain consists of a series of computer protocols that form a computer network, which allows value to be moved from point A to point B — just as the internet allows us to move information from point A to point B. These protocols move value around in a complete new way: it is unique because the technology allows for permission-less transactions. It is decentralized and does not require a bank or intermediary to facilitate the trades. You just do it yourself. The economic attractiveness and the innovation at the core of the Blockchain technology suggests that this could be one of the most important inventions of the twenty-first century — if only its mysterious inventor, who goes by the alias , had not made the blockchain technology widely .

With its components in the public domain, any person of ordinary skill in the art can build on top of the pre-developed computer protocols and duplicate the technology in the digital world. The open-source nature of this project may be one understated obstacle in the . Tech-innovation moves as endless ripple, with the waves of innovation building one on top of the other. A higher tech-innovation wave will require entrepreneurs to rely on the swells previously built on top of one another by other entrepreneurs.

, a forerunner in blockchain technology, was initially conceived as an open-source project made available to all. It worked as a template for other different tokens, which created more forms of decentralized transactions by way of “new” secure online systems. , for instance, also implemented its code by streamlining and building on top of the leading public blockchain technology Bitcoin, which has prompted the conception of . Since much of the technology underlying Blockchain has been placed in the public domain and the number of inspired projects has grown exponentially, some lawyers suggest patents.

In fact, blockchain-related inventions may easily fall under the category of applied to computer-related inventions. The has nonetheless explained that, although abstract ideas alone are not patentable, software and business methods are not excluded from patentable inventions altogether. With this in mind, it is not surprising that the number of tech-companies filing patent applications has sky rocketed. However, both the issuance and the enforceability of patents on this technology are still uncertain to predict.

Assessing the likelihood of success in procuring IP rights for innovations or improvements to the blockchain technology may require more than a clear understanding of the underlying technology and the state of the law. Lawyers may have to expand their perspective if they want to provide their clients with a more realistic prediction. This incremental step may entail an assessment of the current state of the Blockchain industry from a business perspective.

To this end, it is important to understand that there is a strong tendency in the patent offices, courts, and within the industry itself, towards bolstering new innovations. And a patent aggression environment — where IP is used as a weapon to shut down competitors — slows the pace of scientific and technological progress. As a result, those who are more sympathetic to the intentions of the pioneers of blockchain for having the technology available to the public, might admonish developers to avoid the “innovation theatre” pretext to assert exclusive rights over the technology.

Another understated aspect which might become a hurdle in the race for blockchain patents is the propensity of the tech-companies to amalgamate into consortiums. This phenomenon accelerates the growth on blockchain. The idea is to figure out what is the corporate answer to blockchain transactions and to create standards that will allow the various token applications to become interoperable and tradable amongst the different networks, by borrowing their open-source codebases from one another. , and are examples of existing collaborative relationships between leading banks and tech-companies.

Tech companies are involved altogether in discerning the purposes for which the myriad of crypto-currencies and token applications can be used. That is how they compete and there is a lot of room for competition yet — which translates into more challenges to the IP practitioners in helping their clients protect the code upon which other token applications may be built.

Bruna D. Kalinoski is a contributing editor for the IPilogue and an LLM candidate in the Osgoode Professional Development Program at 91��ɫ.

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Whether you’re a law student interested in public sector law, regulated industries like banking or healthcare, technology trends or information management, this course is for you. IP Osgoode extends a warm thank you to Williams and Power for their time for the interview as well as their passion for the study of privacy and data protection.

What drew you into the privacy and big data field of law?

MP: While with the Department of Justice in the 1990s I served as Coordinator of the Department’s Electronic Commerce Secretariat. I was one of the principle authors of the Electronic Documents Act. When that bill was merged with the then Personal Information Protection Act, literally at the last minute, I had to learn about that statute. Later, when I left government for private practice, the information security aspects of my law practice found me explaining privacy obligations to clients and the privacy law practice evolved from there. Privacy law represents the legal side of a juxtaposition of consumer/human rights/civil liberties law with technological innovation, which I find fascinating. You can literally “wait a moment” and see new legal issues arise as the consequences of technology deployment play out.

JW: I became interested in this area through taking a privacy law course with David Loukidelis and Murray Rankin. Privacy is a very broad (and to some degree nebulous) concept that has attracted attention from a wide variety of disciplines, including psychology, philosophy, economics and computer science. In addition to being notoriously difficult to define, it is intertwined with other areas of law, including constitutional and commercial law. There are some very deep problems in this area, both in terms of theory and practice. It also turns out that privacy is very fertile ground for computer scientists. There is a rapidly expanding body of work in both industry and academia that presents techniques to address privacy risks posed by data aggregation, data mining, ubiquitous computing, social networks and other technologies. While some areas (e.g., anonymization methods for data) have advanced rapidly, a lot of work remains.

How do you feel Canada is doing compared to US/EU re: data privacy?

MP: In terms of law, generally I think we’re in a better position that the US in that our comprehensive approach can deal with evolving issues. The American “sectoral” approach may or may not be able to address something new. However there are aspects of American law — genetic privacy, for example, that are further ahead of Canada. I also think the European approach, while also comprehensive, is more regulatory in nature and more problematic in operational terms. In some respects, governments in Canada think “privacy” as a legislative issue is “done” and I don’t see that in Europe or the US. I think the future evolution of privacy law in Canada will occur at the provincial level because of the constitutional limitations of the federal government in this area. For example, “revenge porn” can’t easily be dealt with under a PIPEDA/PIPA framework aimed at commercial exploitation of personal information.

JW: That’s a tough question. Canada has really drawn inspiration from the US, not only from its jurisprudence but also for some of the fair information practices. Nevertheless, our data protection regime was really crafted in response to developments in the EU. As Michael mentioned, we have a comprehensive approach that is applicable across industries. There are some gaps and weaknesses in our law, of course. Select sectors in the US are definitely ahead of their Canadian counterparts, and I think that the FTC likely inspires more terror than our privacy commissioners. Comparing the two systems is difficult, and perhaps fertile ground for a paper.

Is "big data" hype all it's cracked up to be? Do we have the person-power capacity in Canada to properly utilize it?

MP: Data analytics, which is what “big data” is all about, is fine in theory, with a lot of benefits both at the institutional and individual level. However, we’re far from achieving those benefits in that organizations in Canada, whether large or small, have immature data management regimes. I suspect those benefits will come but not before a lot of time, effort and money is wasted figuring out how best to get them. The “cloud”, as a concept, first arose in the 90s and is only gained traction in the last few years. Data analytics may follow a similar timeline.

JW: One has to be careful with buzzwords. Data aggregation and analysis has been around for decades, and a brief look at the work of Arthur Miller and Alan Westin shows that legal scholars have been concerned about these activities since the late 60’s. Since then, computing power and availability has improved significantly, the amount of data collected has grown, and there are some novel techniques that complement traditional methods of statistical inference.

I do think large-scale data analytics is going to be very useful as a tool for disciplines like medical research, materials science, biology, urban planning and ecology. However, a lot of the techniques are not easy to deploy. There are major issues with data acquisition, data quality/cleansing, choosing appropriate methods, and validating the resulting models. Some techniques work best with massive amounts of data and computing power.

The firms that have the requisite resources (both human and computational) and tacit knowledge have a major advantage. As a result, most of the people with the background for large-scale, distributed machine learning and data analysis are being drawn to the US.

I think it will be difficult for Canada to compete. Innovation is unlikely to arise from those large firms (e.g., banks and insurance companies) or government agencies that have experience with traditional data analytics. Startups in Canada don’t have access to the scale of funding available in the US, and it doesn’t make sense for promising ventures to stay. This also affects human resources; while Canada has a few world-class statistics and computer science departments, the small number of industry-oriented PhD graduates from those programs will likely be lured south.

How effectively are federal and provincial privacy commissions protecting Canadians' personal data? What are some of their challenges?

MP: The effectiveness of Privacy Commissioners is constrained by the legislation we have in Canada, which defines their roles, and their budgets. I think they do the best they can but there are limitations and we should ask ourselves whether we our expectations are too high and whether we should rely too much on them. As for challenges, I suspect the answer varies depending whether you’re speaking about the public, private or healthcare sectors. Each has their own issues.

JW: I think they have had a lot of influence, but their effectiveness is circumscribed by their legal powers and budget. Given their limited resources, I think they have been quite effective at promoting awareness of privacy issues and investigating complaints. The federal commissioner has been particularly active in sponsoring relevant research. Apart from obvious challenges like resourcing, it is difficult to keep up with advances in technology. Another challenge arises from the fact that they have fairly limited powers to make orders or impose monetary penalties.

"Young people don't care about privacy" is a common retort to proponents of ethical and contentious data collection. Do you believe this to be true?

MP: True? Not at all. That is a general statement concerning a complex subject. How I define my “privacy interests” may be different from that of a 16-year-old. “Young people” may have different, more nuanced notions of privacy but they are there. And for both of us, our requirement/need for privacy evolves as we age. I tend to believe that privacy — in all its forms — is an inherent aspect of the human condition.  If we don’t have it when we need it, we’re somehow less than human.

JW: A fair amount of empirical research has been done on this issue, and while there are some pessimistic results, it is clear that young people do care about privacy. However, privacy is ultimately a social norm that is expressed through a variety of practices in a surrounding social context. The way that people interpret and achieve privacy differs according to such factors as culture, communication modalities and individual preferences. I don’t think young people care less about their physical privacy, but they do differ from older generations in the way that they think about online privacy.

The post An Interview with James Williams and Michael Power: Putting Privacy and Data Protection Under the Lens appeared first on IPOsgoode.

The age-old question on the use of free and open source software in the Italian Public Administration (PA) seems to be coming to an end. Last January the Agency for Digital Italy (Agenzia per l’Italia Digitale) opened a work and discussion table to all stakeholders, focusing on the comparative assessment pursuant to art. 68 of the Digital Administration Code (Legislative decree no. 82/2005). The table was closed last month. Now, the Agency will launch a public consultation and will adopt a final text for guidelines. These guidelines will provide the Italian PA with all the operational tools for acquisition of softwares.

Public administrations are expected to provide efficient public services to businesses and citizens across Europe, sharing software solutions, discussing good practice and exchanging their experiences. These are the goals of the programme on Interoperability Solutions for European Public Administrations (ISA) established by the European Commission and where the Open Source Observatory is hosted.

Italian PA is so obliged to give priority to free and open source software (this is common ground, pursuant to paragraph 1 ter of the above mentioned article 68), however, this preference can not be given without a “comparative evaluation”. In fact, one of the tasks of the Agency, for which the table has been set up, is indeed to establish procedures and criteria that will help to justify the choices of the PA in the acquisition of computer programs.

That said, every public body may now ask itself what really would make it different from any other person as to whether to acquire and release software under conditions of free and open source software. The answer is simple: nothing.

The PA, even when is an active subject in the design and implementation of software, and not only when limited to acquire it, basically is a user of the same. Barring exceptional cases, the purpose of the PA is to serve the community and the citizens according to their own goals and skills. For this reason, even when it makes use of external instrumental bodies, including those of non-public nature (such as joint ventures or wholly owned) the activity of the PA is never mainly directed at making profits or at the acquisition of a market position. The economic activity may be carried out only to achieve the satisfaction of the public interest pursued.

It is no exception if – directly or through any of the operational tools made ​​available by the administrative law – the PA makes designs, develops and distributes software; therefore the value of the software that is acquired or created is not of a commercial nature, nor is it the potential sale price of acquired rights on the software. This value lies in the use, namely the in the ability to make the administrative apparatus and the persecution of its own purposes more efficient for the concerned PA in an effective way. In other words, for the PA software is not a product, rather it is a service and not only in the sense on the rules of contracts of the PA, but in the sense given to it in the corporate world.

For the PA it is important that the software works in a consistent way with the purpose for which it was procured, what it is worth in itself is irrelevant. This leads to the conclusion that the return on investment is measured essentially in terms of efficiency. Efficiency which in turn must be measured both in immediate terms (saving of resources with an equal output or increased output utilizing the same resources), both in terms of long-term savings (lower investment for the update, adaptation, migration to the achievement of obsolescence or the appearance of more efficient systems), and – finally – in terms of positive effects to the general or local economy (“spillover effects”).

The PA has the right to acquire software under conditions of free and open source software. There is no doubt about this. Both in the case of a pure acquisition of pre-packaged software (generic), as a simple office application (typical examples: an Internet browser, a word processor, an email client or an operating system) but also if the software is being acquired by the PA through ad hoc customization, where there is a substantial economic investment and in which the software is subject to the rules on re-use.

All the above-expressed concepts have been upheld by the Italian Constitutional Court in 2010, with Decision no. 122 of 22 March. In essence, free and open source software do not refer to a particular technology, brand or product, but rather express a legal feature. What differentiates free and open source software from proprietary software is the different licensed rights on the program. Decision about the adoption of one or the other contractual setting belongs to the user, hence, to the Public Administration, with a strong preference to the free and open source software way.

(Published on )

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For a comprehensive, entertaining, pun-filled and generally geek-tastic video primer on the two sides to the Game of Thrones piracy debate, please see by Mike Rugnetta.

The Cultural Buzz Argument

The dominant pro-piracy narrative has focused around the concept of “cultural buzz” and the promotional value of piracy and its residual impact on sales. :

“No, it's great. It really helps the show's cultural buzz, and it does not impact the bottom line because HBO has more than enough money to keep making the show… this makes HBO the center of a cultural conversation about illegal downloading, about streaming content, about the production of content and distribution of content, which is probably somewhere they really want to be."

Even HBO’s programming president Michael Lombardo these positive sentiments about privacy,

"I probably shouldn't be saying this, but it is a compliment of sorts… The demand is there. And it certainly didn't negatively impact the DVD sales. [Piracy is] something that comes along with having a wildly successful show on a subscription network."

 

The Moral and Legal Retort

But not everyone is happy about this historic record. Anti-piracy advocates fall into two camps: those that believe piracy is wrong and those that remind piracy is illegal. The distinction is subtle, and there is some overlap, but the latter argument seems far more prevalent in online discourse.  Blogger John Birmingham politely that they’ve got their understanding of criminal law wrong.

“Specifically, there was one argument that kept coming up again and again. That unauthorised downloading is not theft; at worst it’s a copyright violation, which somehow sounds less serious. Almost admirable and kinda Robin Hoody in fact... And sure, in a strict literalist interpretation of most statutes in the various jurisdictions which take seriously the protection of intellectual (as opposed to ‘real’) property, theft and copyright infringement are treated separately. But both are usually defined under criminal law, and both are punishable with fines and jail terms.”

The more moral argument is furthered by ,

"What you hope is that even though people watch it online, they will still buy the DVD. You can always hope…At the end of the day it's stealing. I know it doesn't feel like it but it is and it's not right."

 

Analysis

Market failure is being touted as a for the piracy; delays in the availability of HBO shows around the world have been argued to lead to fans downloading out of necessity. This doesn’t necessarily explain why the US was the country responsible for the highest percent of illegal TorrentFreak Game of Thrones S3E1 downloads. is a born-and-bred US channel that is more accessible domestically than anywhere. So it seems that the math to this argument doesn't add up. Moreover, I’m unclear why market failures would justify breaking the law. If the capitalist claim were that piracy effectively hurts Hollywood enough to be an appropriate bottom line motivation, then I believe we’d see some kind of adjustment in content distribution on the part of HBO. That doesn't seem to be happening in any short order.

And even if it did, it likely wouldn’t matter. Laws don’t serve at the pleasure of the market; the market serves at the pleasure of the rule of law. Citizens who have problems with anti-piracy law should be voting with a ballot, not a cursor. From this paradigm, illegal downloads starts to look a lot more about laziness than consumer rights. Finally, these statistics are shaky ground for the foundation of any debate. There’s a definite English bias – 4 of the top 5 countries on the list are English-speaking and it’s an English-speaking show. Sure Game of Thrones could be the most downloaded show of all time. Or it could be the most downloaded English show of all time.

In honesty, I don’t know what the most popular shows are in India and China. But if they’re not English and BitTorrent has an English show bias, then the data set starts to look particularly weak. And in addition to factoring in language, a truly fair comparison would weight downloads by country population and broadband internet penetration.

In conclusion, excitement about Game of Thrones piracy is noble fantasy.

Denise Brunsdon is an IPilogue Editor and a JD/MBA Candidate at Western University.

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The trial jury has decided the Google has infringed on Oracle’s copyright, a copyright dispute covered by IP Osgoode last year; however, the court could not decide if the infringement was within the legal definition of fair use.

At issue in the copyright portion of the case is whether or not Google’s unlicensed use of Java, the base language for its Android mobile operating system, infringes on the Java copyright. The dispute has its origins in 2005 when Google and Sun Microsystems signed an to help spread each other’s software, and when Google started to focus on the creation and launch of its new mobile platform, Android. The relationship soured soon after, with Google’s with the Android mobile operating system, but Sun did not take any action at the time. In 2010 Oracle acquired Sun and the Java platform, opted for a more adversarial approach in protecting their newly acquired intellectual property, and filed suit against Google for infringement.

against the copyright charges is that even if the 37 Java application programming interfaces (APIs), the entities at the core of the dispute, were copyrightable, their use of the coding constructs fall under fair use and are free to use. Fair use, as defined in the US by , relies on the purpose and character of the use, the nature of the work, the amount of the work that has been used, and the effect on the value of the work through the use. Google claims that the functional nature of APIs and the transformative manner that Google is using them in supersedes the original work and therefore qualifies as  fair use. Also, the very small percentage of material that the alleged infringed works represent out of the entire Java operating system, and Oracle’s goal for the Java platform is akin to monopolistic use and “runs counter to the statutory purpose of promoting creative expression”, is sufficient to prove that their use of the APIs falls within the fair use domain.

against the fair use argument centred on the commercial nature of Google’s use of the copyright work and the pre-existence of a license what would cover Google’s use of their IP. The mobile version of Java, Java ME, offers the license raised by Oracle that would avoid the current issue between the two tech giants. This license “”, a stream of revenue that Oracle undoubtedly wants to protect. Google has not paid for this license and Oracle and, in the event that they lose this dispute or Google is able to avoid damages, may lose a large area of revenue from their if Oracle’s other clients choose to follow Google’s approach.

The jury could not decide between the two arguments and the decision now rests with Judge William Alsup. It should be noted that Google’s argument against the second point of the fair use “test”, that only 37 APIs were used out of hundreds of thousands of lines of code comprising the Java operating system, is not as simple as it is stated. The software engineering practice of can mean that a very small area of code can be exponentially more important and used much more that other areas of code. This is especially true with core APIs that are provided by the language itself, such as those in dispute. Without further evidence on their popularity it would be unjust to base any decision on this argument.

Judge Alsup must ultimately make a decision on the copyrightable nature of APIs and decide first whether APIs are copyrightable, and then whether use of an API is enough to qualify for fair use or whether an existing license encapsulating the use of the APIs is sufficiently commercial to defeat a fair use claim. There is a hint of irony in this argument, as, mentioned in IP Osgoode’s on this case, it can be argued that APIs are designed solely for transformative use, so the decision places the original wishes of the software designer, Java, with the business priorities of the current owner, Oracle. In a related note, the European Court of Justice has that APIs and other functional characteristics of software are not eligible for copyright protection.

The dispute continues, and as we wait for Judge Alsup’s copyright decision the case now moves through the and damage phases of Oracle’s complaint.

Mark Bowman is a JD candidate at Osgoode Hall Law School.

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Google’s attempt to dismiss via summary judgment copyright infringement accusations from Oracle against its Java-based Android operating system have failed, with one exception. In , the United States District Judge William Alsup found that the main subject matter of the motion, the APIs, was not sufficiently defined by Google to pass the copyright challenges presented in Oracle's original complaint, with the exception of names found within the APIs.

for both patent and copyright infringement, and this latest motion from Google had aims to remove the copyright component from the complaint by showing that 12 source code files do not have copyright protection.  Google also asserted that the names, scènes à faire in nature, used as a method of operation a degree of similarity with the original files and the fair use nature of the 37 API package specifications removed any copyright protection. from the patent and copyright infringement at $1.2 billion, and the two parties are actively negotiating a settlement, although reports are a .

APIs, or application programming interfaces, are extremely brief pieces of code that wrap around either a program or a library (a grouping of smaller pieces of code that does not run by itself but provides functionality to other programs) and act as a local specification or standard for any connecting program to use. The irony of this copyright infringement claim is that APIs are usually exposed to third parties to allow for software to grow beyond the original design and use, a technique that is found in almost every modern web-based service. Oracle has objected because Google has replaced code within 12 code files found on the other side of the Java APIs, something that Google probably has done to ensure positive and consistent Android customer experience on the various mobile platforms that it runs on.

Google argued that the 12 code files were a small part of a larger monolithic Java copyright and thus too meager to be considered copyright infringement (Java is exponentially larger in size than 12 files).  The judge ruled against Google and found that each individual file would have its own copyright protection. Google also asserted that the API specifications themselves were not subject to copyright protection due to the general nature of the specifications as names, the scènes à faire nature of the technique, the fact that APIs are a ‘method of operation’, that APIs fall under the ‘virtual identify standard’, and that the use of the Java APIs was ‘fair use’.

Justice Alsup did side with Google on the first of these issues and found that the various names associated with the specifications (the names of the methods found within the API, the name of the API, and any other class name) were not subject to copyright. The judge however dismissed the other notions that the use of APIs within software was scène à faire (an element of created work that is either obligated or expected within the work, and thus not copyrightable).  The Court also disagreed with the argument that, as a ‘method of operation’ within software development, an API is not copyrightable (as defined by ). The judge further rejected Google’s arguments that in order to be deemed copyrighted work the material had to be virtually identifiable and not substantially similar (Android’s versions of the APIs would be similar but not identical), and the Java API packages cannot be deemed either fair use or not (as defined in ) due to existing disputed questions of material fact.

The response by the District Court to Google’s request still leaves much to be decided by a jury if a settlement cannot be reached before trial. Oracle’s claim that ‘Android fragmented the Java platform and locked Java out of the smartphone market’ is a bit unexpected as Oracle does not have any existing presence within the mobile market, nor has it announced any initiatives to make its presence known; that Oracle’s motivation behind this suit could be either to do a favour for Apple (Android's main competitor in the mobile market), or to protect against future copyright infringement claims against their own products (including Java). It is also of interest that both Java and Android are open-source software covered by the , which could be sufficient to suggest fair use if this complaint reaches trial.

Canadian copyright law contains a similar provision covering ‘using any method or principle of manufacture or construction’ ( of the Copyright Act, 1985), however this has not been tested against software APIs. BlackBerry, the third largest platform in the smartphone market, might provide the opportunity as they also offer Java as a development environment for their phones and, depending on how it is been implemented, could potentially face the same complaint from Oracle in Canadian Courts.

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In the first issue

The first issue features an article on the association between feminist and open access movements by (a member of IP Osgoode), Joseph Turcotte and (also a member of IP Osgoode); reflections by Drucilla Cornell on the 20th anniversary of the publication of Beyond Accommodation: Ethical Feminism, Deconstruction and the Law; thoughts on current and future agendas for feminist legal studies from Africa, Europe, North and South America and Australia; and a video of a roundtable discussion with Brenna Bhandar, Julia Chryssostalis, Elena Loizidou and Janice Richardson on the ‘past’, ‘present’ and ‘future’ of feminist legal scholarship.

One of the highlights of the issue is the thought-provoking article by Carys Craig, Joseph Turcotte and Rosemary Coombe addressing the parallelism between feminism and an open access approach to intellectual property issues. The article challenges the traditional masculine viewpoint towards ownership and control of information resources in order to meet a new reality brought on by technological advancement and shows how, as our cultural landscape evolves, intellectual property reforms are desperately needed. Relational feminism provides a bridge between liberalism's individualism and communitarianism's social constructionism. It also illuminates how the growing number of open access initiatives work toward challenging the status quo guiding traditional industries through fresh competition. The article is a revealing look at how critical feminist scholarship and the open access movement can work in tandem to confront ingrained norms that support the current dominant intellectual property paradigm and the resulting power imbalances it creates.

About the journal

feminists@law aims to publish critical, interdisciplinary, theoretically engaged scholarship that extends feminist debates and analyses relating to law and justice (broadly conceived). It has a particular interest in critical and theoretical approaches and perspectives that draw upon postcolonial, transnational and poststructuralist work. feminists@law intends to publish material in a range of print and multimedia formats and in English and other languages. It is committed to an international perspective, to the promotion of feminist work in all areas of law and justice, and to making that work widely available through open access publishing. It plans to publish two issues per year, but each issue will be built incrementally, meaning that new articles will be posted as soon as they are ready for publication.

Register your interest

Registration with the journal will enable you to submit articles for consideration, to receive automatic email updates when new issues are published, and to indicate an interest in acting as a reviewer for the journal. You can also receive journal updates via RSS, facebook and twitter. The hope is its readers will enjoy reading the first issue, comment on the articles, register on the site, submit articles for publication, and provide feedback on the journal.

The post feminists@law: A New Open Access Journal of Feminist Legal Scholarship appeared first on IPOsgoode.

At this year’s Canadian Music Week International Breakfast event, had a few moments to call upon his audience of fellow music industry top thinkers and executives to consider this question: “What happens when we stop shaping technology and it starts shaping us?” As the digital revolution expedites us into the future, those who have embraced it have often forgotten to step back and think about where the train is headed; or to take a retrospective lens to our past and observe how the tracks laid down back in the pioneering age of the internet might guide and limit the future development of our society.

Wielding a , Lanier began his call to action by filling the Royal 91��ɫ’s ballroom with the exotic sounds of the ancient instrument he referred to as the ancestor to the computer, fittingly chosen to symbolize the union of music and technology at this event. Lanier, who has been described as the father of virtual reality technology and is still actively involved in the technology field, spoke of the early development of the web and how specific choices made by its designers, such as anonymity, have continued to survive into its current incarnation. These parameters continue to guide and restrain the development of the web into a form that raises serious concerns for Lanier, namely the “open culture” concept in a Web 2.0 culture and the rise of a “hive mind” online society spurred on by the dependence on collective wisdom forums like Wikipedia.  The growing acceptance of crowd identity and the notion that collective wisdom is always the better “truth” are part of what Lanier calls digital Maoism or cybernetic totalism, and Lanier foresees stark consequences for the value of human intellectual potential and human dignity – and the music industry is no exception.

Being an accomplished musician and having worked with the likes of Philip Glass, Yoko Ono, and Ornette Coleman, Lanier offered his perspective with a music industry example. These days, the growing business model for music artists is to have their music given away for free and the money is made through merchandising and touring (artists like being championed as the shining example). The combination of “open culture” and the hive mind have reinforced this notion that “information wants to be free” (as evidenced through the lingering problem of music file-sharing). However, Lanier argues that information should not be free and that musicians should be paid for their music. While this may seem like a common rant at a music industry conference, Lanier’s argument goes beyond the Lockean “reap what you sow” argument and argues from the perspective that this “open culture” mentality of devaluing content ends up devaluing humans and their individual intellectual capacity, which in turn also results in the loss of human dignity.

Lanier also argues that this business model is not sustainable for a couple of practical reasons. While an artist is young and childless, solely making a living on touring might be possible – living out of a van and crashing on friends’ couches. But when an artist reaches the stage that they want to start a family or have some form of security and stability, this model no longer becomes feasible and the life of musicianship is severely cut short. Even if one were to supplement revenue through merchandising, the technology to be able to reproduce those band t-shirts or posters in the comfort of one’s own home is just around the corner. Again, neither of these scenarios helps to prevent the loss of any human dignity for the artists. To further bolster his point, Lanier stated that he has yet to find more than a handful of examples where this model has been successful, and that many of those who purport to be “successful” are in actuality faking it.

To be clear, Jaron Lanier is not anti-net or anti-technology. He argues that the web’s early design has been so ingrained in the social integration process that it has created a “lock-in” effect – restraining the way we are able to express ourselves over the web now and even forgetting that it could be any different. What we need is a new form of humanistic technology. His criticism of “open culture” and cybernetic totalism is not that they should be abandoned entirely, but rather that they be limited in their scope and their use. Lanier rejects these concepts as the basis for all decision-making, but recognizes that they have their time and place to be useful tools.

Lanier stated in a Q&A after his speech that the solution to the file-sharing problem is not to go around demonizing copyright infringers, but rather to help them understand and respect the value of a creator’s intellectual output and to recognize their own potential for creation. As pointed out in a , Lanier’s hope for the near future is a revival of our understanding and respect for intellectual property and the value attributed to every person’s creative output.

It is clear that not everyone agrees with the controversial change that Lanier has proposed, but I believe his call for a re-evaluation of the system of which our society continues to further assimilate into our daily living is a very useful exercise, even if only to strengthen our understanding of where our system’s current infrastructure is capable of taking us. As Lanier had aptly put it, “Technology criticism should not be left to the Luddites”.

I am perhaps part of the last generation who will have remembered a life before the internet and while I now seem to be inseparably attached to the internet at the hip, I am concerned over the next generation’s inextricable link between the web and daily life, nurtured from birth. The internet will have a significant role in their formative years and will shape the social landscape in the years to come. Any critical analysis of the internet and its technological framework, and what they should be, needs to occur now before our society becomes hopelessly dependent on an inappropriate system. After all, we created the web to adapt to our needs; we should not have to adapt ourselves to the web.

I strongly urge you to get Jaron Lanier’s recently released book as it spells out in much more interesting detail his thoughts on how technology affects our culture.

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The idea for open-source textbooks is not new.  In 2002, the attempted to produce a history textbook using .  It was then estimated that such an initiative could save the State of California .  However, to date, the project has yet to produce a complete book.  In resurrecting the open-source textbook dream, Governor Schwarzenegger specifically asked developers to submit their digital textbooks to the ("CLRN"), which was established by California's Board of Education over 10 years ago to store online educational resources.

In response to the initiative, various nonprofit organizations and leading textbook publisher attempted to release material that would be up to CLRN's content standards.  Surprisingly, the nonprofit organization seemed to fare the best, submitting seven complete books, which all scored particularly well, while when compared to the content standards.  Interestingly, the highest rated books were almost always .

In addition, has expanded on the open-source textbook initiative by targeting college students.  The company that it now has approximately 40,000 college students at 400 colleges who will use their digital textbooks this fall.  Flat World Knowledge co-founder that the shift in demand to cheaper, digitally available textbooks is, in part, the result of college faculty realizing the significant financial burden placed on their students.  He argues that by using the , faculty are unencumbered in the sense that any professor can simply register on Flat World's site and let students know the book is available.

However, others such as , author of , argue that the future in free online digital textbooks lies in the realm of , which would not only bring down the cost of textbooks, but also improve their quality.  In fact, Sun Microsystems founded the nonprofit project, which is built on the platform and designed to allow users to create and change content through a user-friendly interface.  However, Curriki's textbooks were among the lowest scoring of the book submitted to California's board of education.  Curriki spokesperson that the low score was partly due to poor communication between the Board of Education and Curriki.

In any event, it appears that the use of open-source textbooks is slowly becoming a reality.  It remains to be seen whether the digital textbook world will be populated by single authors, or whether the wiki-style textbooks will increase in quality such that they are well suited for academic study.

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Prentice gives an account of how this could work in Google's favour by asking, "[i]f Google Wave, hypothetically, infringes a patent that IBM holds and they're found guilty of doing so, could they simply claim that the relative market value is zero because there are existing free OSS mail and IM solutions?" Matt Asay of CNET News calls it a "". It seems that the consequences of this damages provision will hinge on the interpretation of "relevant market". If open source Application X is capable of doing the same things as costly Application Y, but is geared towards a different user base or is meant to be used on different hardware, would it not be available as the comparison in a damages assessment for infringing Application Z, which is more similar to Application Y with respect to those factors? Another point to note is the potential difficulty of actually finding "sufficiently similar substitutes" that are themselves non-infringing, depending on how widely these terms are construed.

Even though Google's applications themselves may not have licensing fees, they will likely still be able to bring in revenue through other indirect means. It could be the case that this weakening of penalties against infringing software producers may have greater benefits for those larger companies that can afford to not rely on licensing fees, but rather on how their new open-source applications make use of and interact with their large established base of other products. Smaller companies that are just starting out often rely on the revenue directly generated from licensing fees in order to further their products, so damage awards are likely to be more crucial for them. Just because there are free alternatives to a particular product does not mean that no one is willing to pay for it. Users have preferences for intangible factors that cannot be summed up simply by the functions and code of a particular application. Perhaps a more reasonable damages assessment method would be to take into account existing non-open source applications as well as open-source ones that are both sufficiently similar, and to strike a balance as an estimate of lost revenue.

One thing that is not mentioned in the Act is the remedy of an injunction to stop making the infringing product available, which presumably continues to exist. Though in these types of cases an injunction could potentially have harsher consequences for the infringing party than damages, the owner of the patent being infringed would not likely feel an equally opposite benefit. Since software is relatively simple to copy, once it has been put out there in cyberspace, shutting off the source of the infringing software would not prevent it from continuing to be spread, and thus continuing to chip away at the market for the party with the original patented software.

Software patents have been  in the policy realm for some time now. The , though still somewhat unclear, can generally be viewed as a setback for the patentability of some forms of software, though it is currently under  to the Supreme Court of the United States. It will be interesting to see the outcome of that decision as well as the outcome for the proposed Patent Reform Act of 2009. If Google truly does have the type of plan speculated by some bloggers, it will surely be watching very closely.

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