Alarie is the Osler Chair in Business Law at the University of Toronto and the CEO of , a company which develops software that uses machine learning to analyze and apply legal precedents. He believes that properly trained algorithms will make more timely, cost-effective, and accurate decisions than human regulators, lawyers, and judges.

Alarie’s recent presentation at Osgoode Hall Law School was based on his paper, . In both the paper and the presentation, he used the example of classifying workers as either employees or independent contractors to argue not only for the possibility of computers applying existing legal precedents but also for allowing them to evolve the law. He asserts that computer algorithms could eliminate biases and resolve problems with the existing specification of the law.

is a field of computer programming in which computers learn from the data, rather than being explicitly programmed to create a particular outcome. Instead of having each step in decision-making pre-determined by a programmer, the software analyzes existing data for similar decisions and uses statistical analysis to find patterns in that data. It then applies the patterns to unseen data to make predictions about that new data.

Alarie’s presentation addressed the classification of workers as either employees or contractors for income tax purposes. This is a common problem in both employment and tax law, for which the . Classification involves weighing a variety of factors and does not always have a single clear answer.

Alarie and his colleagues found hundreds of Tax Court of Canada decisions involving a worker’s classification. They divided the data into two sets. The larger subset was used to train their software, which determined what weight judges gave to each of the factors. The smaller subset was then used to test the software, by asking it to predict the result based on facts from cases it had not yet seen. It provided a prediction – either employee or contractor – and a percentage level of confidence in the prediction.

They then compared those predictions to the actual findings of the Tax Court in the tested cases. They reported that the software correctly predicted the Tax Court’s decision in over 90% of cases. The erroneous predictions came with low confidence ratings, indicating that the algorithm knows when it might not be correct.

Even more interesting than the legal prediction software itself were Alarie’s own predictions about how this kind of software will change the law itself.

The first step, which is already in progress, involves legal professionals using software to support their own research and the professional advice they offer clients. As algorithms become more reliable and engender greater trust from regulators and corporate users, their predictions will become the de facto standard for making a particular type of legal decision.

Furthermore, the predictions will be more consistent and cheaper to obtain than a trial decision. As well, predictions will be available ex ante, so users will be able to adjust their real world behaviour in order to align with the legal result they are seeking, rather than acting now and hoping that any future judgement will go their way.

Only in those fringe cases, where the algorithm cannot make a confident prediction, would an actual trial be necessary. The trial decisions in those cases can then be fed back into the algorithm to improve its accuracy in subsequent analyses.

Somewhere in the future, Alarie imagines a : a time when statutes could be written to reference the results of particular machine learning algorithms as the de jure law of the land. The results might continue to evolve as a result of judicial review or legislative tweaking, but receiving a decision from an algorithm would have the same legal weight as receiving a decision from a trial judge.

A very active question period followed the presentation. Audience members questioned whether people would accept a decision-making process that has a known error rate. They also raised concerns about whether the algorithms would entrench systemic biases and legal errors that otherwise might be corrected in the case law.

Alarie envisions a technological future where computing power allows us to identify and overcome these problems. He also reminded the audience that we accept a significant level of error in a human-controlled legal system, and that we should not expect perfection from a computer-controlled system. It is enough that computer algorithms could substantially improve upon the performance of human decision makers.

All of which leaves only one outstanding question:

When computers take over the legal world, will any of us still have jobs?

Jacquilynne Schlesier is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School. 

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As a student researcher, my focus was on my individual research project. The basic subject area was assigned within my first day at Heritage. It expanded to include a comparative law analysis, so among my other research tasks, I read 34 different copyright laws and 20 international treaties. I even got to dig through old archived files at the Library and Archives Canada. In my last week, I presented my results to colleagues at Copyright Policy along with guests from other Branches.

Alongside my research project, I had the chance to participate in some of the regular activities of the Branch. I helped answer calls from the public about copyright policy and conducted media monitoring to ensure we were on top of breaking news about copyright both in Canada and internationally. I participated in department planning and brainstorming activities. I went to at the University of Ottawa. I attended education sessions presented by members of our Department and outside stakeholders. I spent a couple of days at the Senate for the Committee hearings on the Copyright Board. I even went to the Diefenbunker. (That was not a work assignment, but anyone who visits Ottawa needs to see the !)

Working with Canadian Heritage also presented an interesting opportunity to learn about how government actually goes about its business. Corporate memory is preserved carefully, with a constant eye toward good Information Management practices. There is a vast assortment of tools and templates used to create consistency in how we communicate within the Branch, with our colleagues within the Department of Canadian Heritage and at other departments, and outside of government. The weight of a pronouncement from a government department on a given issue means the stakes are high in every external communication and a lot of work goes into ensuring that the things we say publicly are correct. There is also an emphasis on making information accessible to a broad audience, whether that means publishing research studies on the internet or ensuring that our briefing documents are truly comprehensible to non-lawyers.

Since we are between the 2012 Copyright Modernization Act and the 2017 mandatory 5-year Parliamentary Review of the Copyright Act, you might imagine that Copyright Policy would be enjoying an intermission. That they would be keeping the lights on while waiting for the next round of legislative changes. The reality is much different.

Instead there is constant activity on a myriad of different files and a considerable drive to support Canada's creators and cultural industries without limiting the options considered to legislative changes. There are consultations with stakeholders like collective societies and trade associations on a variety of issues -- not to mention supporting the larger . The Branch supports formal international cooperation efforts at WIPO and the UN and less formal interactions with other counties' copyright policy shops. The , which requires Branch attention. The branch monitors international and domestic jurisprudence on copyright issues, as well as international legislative changes. There's a steady stream of policy research projects that seek to understand and explain the policy options in areas ranging from the protection of Traditional Cultural Expression to the implications of international trade deals. Though I didn’t directly work on these files, being within the department and part of the ongoing conversation meant that I was exposed to everyone else’s work.

The Copyright Policy team extends a huge effort to keep on top of the world of copyright, and it is a much broader world than I ever imagined. I started my placement thinking that I knew quite a bit about copyright. I ended it knowing a lot more about copyright and also knowing that there is a lot, lot more that I don’t know. Yet.

Jacquilynne Schlesier is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program. As part of the program requirements, students were asked to write a reflective blog on their internship experience.

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TCA v McCollum [1] examines the copyright protection for Abbott and Costello's beloved  routine. There is no clear picture of who first wrote , but most agree that Abbott and Costello evolved it through public performances and radio appearances. The decision hinged on the tangled ownership history of the routine.

The plaintiffs, who claim to own the copyright in Who’s On First, filed against the producers of , a play in which a possessed hand puppet and puppeteer trade lines from the routine. In the initial , the trial court found that repurposing the routine in a darkly comedic play was transformative fair use. The Second Circuit spent about two dozen pages of the judgment rejecting that finding, and only then determined that there was no copyright interest to be infringed.

Under the , works were initially protected for 28 years from publication, renewable for a second term. Since was the first publication of the routine, its protection ran alongside that of the film. However, Abbott and Costello—not the film producers—were considered the authors of the basic routine because it pre-dated their contracts with the producers. Because they licensed rather than assigned their copyright, they were personally responsible for renewing it in 1968. They did not, so the basic routine was in the public domain when written into Hand of God.

The jokes in Kaseberg v CONACO ��2����. They are also much shorter—one-liners that Alex Kaseberg published on or on . He filed a complaint in US District Court alleging Conan O’Brien and his staff stole five jokes for . Team Coco’s answer is brief but claims that Kaseberg’s jokes are not protectable subject matter, that they did not copy him, that the jokes were not original, and that any copying was fair use. Arguments are likely to focus on whether Kaseberg’s jokes are protected by copyright.

Under the merger doctrine, if there are only a small number of ways to express an idea, the idea and the expression merge, and the expression cannot be protected. If the idea behind Joke #1 is “even on an otherwise empty airliner, the only two passengers will compete for resources” there might be a number of punchlines: fighting over the arm rest, putting the seat back, waiting in line for the bathroom. However, if the idea is “even on an otherwise empty airplane, the only two passengers will fight over the armrest”, options are much more limited.

As well, since the jokes fit a common comedy rhythm and employ common comedy tropes related to current events, they may be scènes à faire, not original enough for protection.

Although since superseded, the US Copyright Office’s , clarified that “short quips and slang expressions consisting of not more than short phrases are not registrable.” The jokes in question are each two sentences long and follow a familiar comedy rhythm: one set-up line, one punch-line. They may not include enough expression to warrant protection.

Joke theft is a in the comedy world. Copyright protection might seem like an obvious solution . Together, these two cases illustrate why comedy writing does not generally mesh well with copyright: comedy routines evolve over time and are developed amidst standard tropes and structures.

A , from vaudeville when jokes were widely copied to modern stand-up when jokes are viewed as personal property. The paper details a self-policing, norms-based system of joke protection among comedians, and suggests that lawsuits are not necessary since informal sanctions are cheaper and more effective.

The Conan lawsuit likely results from one of the particular problems the paper identifies with norms-based enforcement. Where the alleged joke thief is substantially more famous than the writer, informal mechanisms for enforcement break down. Even if the legal arguments are on shaky ground, a lawsuit--especially one that brings bad publicity to the defendant--may help balance the scales.

Jacquilynne Schlesier is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.  Jacquilynne is currently enrolled in Osgoode's Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

[1] TCA Television v. Kevin McCollum, No 16-134-cv (11 October 2016, 2d Cir).

[2] Kaseberg v. CONACO, No 15-CV-016370-JLS-DHB (Filed: 22 July 2015, SD Cal).

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Capitalizing on massive public interest in the app, the University of Ottawa’s drew a large crowd for a series of short lectures titled “”. Each panel member discussed Pokémon Go through a lens of their own research and interests, and raised legal issues arising from such a novel and popular app—and similar apps sure to follow.

The event began with Sean Grassie, a University of Ottawa JD Candidate, explaining how Pokémon Go works from a technical perspective. He outlined the communication chain, from the app on your phone through cell towers, GPS satellites and layers of servers. He also explained the app’s gameplay. Users catch small characters—the Pokémon—as they move around the real world. Players then train their caught Pokémon to increase their skills and use them to battle other players in virtual gyms that are tied to real world places.

followed Grassie, and focused on the first link in his technological chain: the one between the player’s cell phone and their service provider. Pokémon Go, she pointed out, has the potential to transmit large amounts of data. She drew attention to the and encouraged the audience to familiarize themselves with their rights under the code. She added that the code allows users to authorize data overages, noting the potential for children receiving those notices and authorizing the overage.

Next up was David Fewer, representing the . He also took a consumer protection approach, but focused on the privacy issues that after the app was released. Pokémon Go initially required full, unfettered access to your Google account to operate. A and the problem was quickly fixed. As Fewer explained, though, the problem is not exclusive to Pokémon Go and other apps may not be so quick to fix these issues.

also discussed Pokémon Go from a privacy perspective. He noted that the grants different rights to residents of the European Union than to players elsewhere. He also pointed out that the policies on the website and the website of the app’s developer, Niantic, are different, raising the question of which of these policies even apply.

and PhD Candidate Tennille Brown took a property law approach to Pokémon. They discussed an based on the presence of a Pokémon Go gym on private property. They compared it to the case against MaxMind—a geolocation and online fraud prevention company—stemming from the . They asked whether placing a Pokémon Go gym on a property could be considered a form of trespass, despite the fact that it is merely a virtual construct rather than a real world intrusion onto the physical space. They also looked at the potential upside of being near Pokémon Go gyms, sharing real estate ads that touted nearby gyms as a selling point.

closed the lineup by further considering Pokémon Go and trespass. He considered the principle of attractive nuisance in tort law. A property owner is not normally responsible for injuries to trespassers. However, where their property presents an attractive nuisance like an unfenced swimming pool, they can be held responsible for injuries even for uninvited visitors. Could Pokémon Go gyms on private property be a virtual attractive nuisance? Could Niantic be liable for injuries to Pokémon-hunting trespassers? In response to a question I asked during the seminar, he also considered whether a lure—an in-game option to attract more Pokémon to a specific location—set by a property owner might constitute an attractive nuisance, and felt that would be an easier legal leap to make than transferring liability to Niantic.

During the question period, the panel also addressed the issue of public gathering spots and events for Pokémon Go. Members of the audience asked about the because the organizers did not have a permit and about the . Incidents like those create conflict between the right to congregate and use public spaces and the rights of cities to effectively manage the use of those public spaces.

The panel offered few answers to the questions posed, but providing answers was not really the point of the discussion. Simply raising the questions allowed the audience to see both Internet apps and traditional laws in a new light.

Jacquilynne Schlesier is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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As a member of both IPOsgoode and the , Professor is well placed to explain why it is not. She recently presented "A Feminist Copyright Agenda: Open Access, Attribution, and the Academy" as part of the Greenberg Speakers Series. Her presentation was based on her paper with Joseph Turcotte and Rosemary Coombe in the open access journal ,

Feminist Legal Theory, she noted, involves looking at laws and legal systems and understanding how and why they reinforce patriarchal power structures. Those problems stretch beyond obvious areas like Criminal and Family law and into all the reaches of the law. IP law is no exception. If this is the information age, information might be the most important source of power. Copyright is how we protect that power.

Prof. Craig went on to talk about the relative invisibility of copyright in our daily lives. We interact with copyright-protected material constantly in our work, in our research and study, in our downtime when we're binge-watching Netflix. But we rarely think about the laws and licensing details that dictate what information we can have, when we can have it, and how much we are going to pay for it.

The key question she raised was, under current copyright law, whose speech are we encouraging and whose speech are we devaluing?

She looked at the question through the lens of academic publishing, calling out the problems with the current closed-journal model in which men are more likely to get their work published and to have that work cited and thus have more work published; in which access to research results is restricted to those who are affiliated with institutions who can afford the steep price tag of journal subscriptions; in which treating the written word as individual property ignores the reality that academic work is not produced in isolation but builds on shared ideas and shared relationships.

She advocated for an open access model of publishing, not as a final solution to the problem of copyright and the reinforcement of traditional power structures, but as a step in the right direction. Using tools like and licences, feminists can turn the legal force of property ownership against itself in a kind of copyright karate. The same right to control your own work that is normally used to lock up research can be used to set it free.

This is a distinctly feminist approach, she argued, because the emphasis on sharing and attribution in open licences reflects the feminist relationship-centered view of creativity and knowledge sharing. It de-privileges the market-driven perspective and can reduce exclusion and gatekeeping.

Prof. Craig did not ignore the reality that open access publishing may also be used to reinforce existing power structures. She repeated some of the criticisms of the movement: that sharing women's work freely may simply be devaluing it; that the costs associated with open access publishing mean it is still only available to those with institutional support; that the increasing emphasis on collecting data about views and citations might reinforce existing power structures.

While she acknowledged that these problems are real, Prof. Craig contends that they can be overcome if feminist scholars develop deliberate, thoughtful practices around citation and amplification of women's voices. They must continually question whose voices they are hearing and sharing and strive to diversity those relationships. They must reconsider who and what is considered authoritative. By applying these feminist principles in their interactions with academia, feminist scholars can reshape academic strictures into structures that support and engage their female peers.

It may not be an easy fight, but it certainly seems like a fight worth fighting.

Jacquilynne Schlesier is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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Any software program that performs repetitive tasks may be called a bot. Many bots are useful or benign, but there are also harmful versions, including those that generate fake traffic to websites and fake clicks on advertisements. For companies that rely on viewer numbers to sell advertisement space, assess popularity of content, and pay content producers, .

Twitch streams content created by members of the site, allowing other users to watch and chat about the videos. Much of the content is live streams of members playing video games, but Twitch also streams tabletop gaming and non-gaming content like and .

The site monitors viewership for particular channels to help people find the most popular (and presumably highest quality) channels. They also use viewership to select channels for admission to the Partnership Program, which offers creators a share of the advertising revenue generated by their channels. Some creators deploy fake viewer bots in order to take advantage of the benefits Twitch offers to more popular channels. Channels may also be botted by spammers or by competitors who want to flood a channel’s chat with inanities to drive away or drown out real conversation.

Twitch’s legal strategy appears to be spaghetti-inspired – throw defendants and claims against the wall and see what sticks.

According to the complaint, most of the defendants openly sell bot services on sites with names like , , and . Twitch broadcasters can buy fake viewers for their channels and fake comments for their chatrooms. One of the defendants allegedly owns both Stream-Viewers, which openly sells bot services, and Babatools which sells software that allows Twitch broadcasters to create their own fake traffic. Although Twitch claims that the owner of TwitchStarter is also offering bot services, he claims to offer only legitimate promotional services and membership in a group of broadcasters who agree to follow each other.

Twitch’s statement of claim puts forward nine different legal arguments, ranging from trademark infringement to breach of contract to violations of the (CFAA).

As , the CFAA claim is shaky. The statute is meant to criminalize hacking secured systems. It should not be extended to protect against registering accounts on a publicly-accessible website, even if those accounts are meant to be used in a manner that is contrary to the website’s .

The trademark and cybersquatting claims may be met with a nominative fair use defense. Nominative fair use was developed by the 9^th Circuit Court of Appeals in . They held that a newspaper could not reasonably conduct a survey about the New Kids on the Block without mentioning the name of the band. Likewise, it would be difficult to describe services specifically related to Twitch without using the word “Twitch.” In , the 9^th Circuit specifically addressed domain names, finding that nominative use of Toyota’s “Lexus" trademarks in the Tabaris’ domain names was fair use as long as the websites did not create confusion about an association between the defendants and Toyota. Since the defendants’ websites typically highlight the steps they take to avoid detection by Twitch, there is little chance that anyone would think Twitch owned or endorsed those sites.

However, there are some facts that may distinguish the case at hand from Tabari. The Tabaris were using the “Lexus” trademark in descriptive URLs for their business, but the actual business name did not contain the “Lexus” mark. In this case, several of the websites are using the word “Twitch” directly in the name of their service. Many of the sites also employ a purple colour scheme and graphical elements similar to the Twitch logo. The court in Tabari was careful to note that acting as a broker for Lexus vehicles was not illegal or contrary to the contracts between Toyota and their dealers. As bot services are illegitimate, using protected trademarks to describe them may not be considered fair use.

The core of the claim rests in the breach of contract and fraud arguments. The defendants must have registered accounts on Twitch in order to develop and test their software. When registering, they would have agreed to the plaintiff’s Terms of Service, including restrictions on botting and circumventing security features. Twitch claims that the defendants breached the Terms of Service by developing and selling their services and by inducing content creators on Twitch to use the platform in an illegitimate manner. Twitch’s fraud claims are based on the fact that the defendants represented that they intended to abide by the Terms of Service when they signed up for a Twitch account despite their illicit intentions.

While researching this post, I visited each of the websites listed in the complaint. The websites of two of the defendants, Twitchswiss.com and Streamhomies.com, have already been taken down. Regardless of the outcome of the lawsuit, by making a show of strength Twitch may already be getting what it really wants: for illegitimate bot services to go out of business.

Jacquilynne Schlesier is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

[1] Twitch Interactive, Inc. v. Justin Johnston et al, California Northern District Court case number 5:2016cv03404, filed June 17, 2016.

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Ms. Halamajowa’s fascinating story should be told. But, who has the right to tell it? That issue is at the heart of the recent Federal Court decision in .

Judy Maltz is the American granddaughter of Moshe Maltz, who kept a diary during the years he spent hiding in Ms. Halamajowa’s hay loft. Maltz and filmmakers Barbara Bird and Richie Sherman spent three years creating , a documentary about Halamajowa. They interviewed surviving members of the hidden families and travelled with them to visit the former Halamajowa house in Poland. The film is based on the diary and the contemporary memories of the survivors and their children.

Canadian writer J.L. Witterick was the head of an asset management firm when she saw the documentary. Inspired by the story, she wrote a fictionalized version of it targeted at Young Adult readers, called My Mother’s Story. The novel is set in the original time period and told in the present tense from the point of view of four different narrators. Although she as her inspiration in interviews, she does not mention it in the book.

Justice Boswell’s decision hinges on the principle that there there is no copyright protection afforded to history and facts. It is a well-settled principle; he cites the 2002 Federal Court of Appeal decision in , which in turn cites , which dates back to 1931.

Although they were ultimately unsuccessful, the Applicants raised a novel and interesting argument for protecting the factual information in the documentary. Based on the expert submissions of eminent , they argued that, as in cases of academic plagiarism, copyright law should differentiate between large facts—e.g. the date the Second World War began—and small facts like those found in a personal journal or family history. Since the documentary mainly revealed small facts about Halamajowa and the families she shielded, their effort in uncovering those facts should be protected.

Unfortunately for Maltz, while Witterick’s borrowing might be plagiarism in a classroom, it is not infringement in a courtroom. The difference between large and small facts might be a useful distinction in academic circles where copying of ideas is forbidden, but it does not fit well with copyright law where copying of ideas is acceptable and only copying of expression is forbidden. Prominent cases about the protection of facts have been fought over the most mundane of facts: . Those minutiae are not considered protectable under copyright.

Maltz and her colleagues undoubtedly expended significant effort researching Halamajowa and bringing together the survivors to tell their own stories. The expressive elements of their work as filmmakers and journalists—the film’s script, the way the story was framed, the choice of artifacts and photographs—are protected. But the basic factual elements revealed in the film—who lived where, what dangers they faced if discovered, how Halamajowa fooled German officers—remain as facts and events that really happened. Witterick was welcome to draw on them in creating her own original story about those events.

To a layperson, the result might seem surprising. In the Globe and Mail, Kate Taylor called Ms. Witterick’s book . Anyone who has set foot in a university classroom has been warned about copying and plagiarism. The entertainment media is full of stories of Hollywood producers paying to secure the rights to non-fiction books, and we assume they must be buying something. People often assume that copyright is at issue when it comes to plagiarism and movie rights.

As this case makes clear, there is no copyright in history, only in the telling of it. Someone else can tell the same story in a different way without infringing.

Jacquilynne Schlesier is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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Unfortunately for Peters, in December 2015, Paramount and CBS filed a seeking damages for the existing infringements and an injunction stopping the ongoing production of the full length Star Trek: Axanar movie. An details the characters, costumes, settings, production designs and other similarities between the two Axanar films and the official Star Trek productions.

, as outlined in a motion to dismiss, is that the Star Trek universe as a whole is not subject to copyright, and that individual elements that they have copied are “too general for copyright protection, are scenes a faire, or are commonly used, unoriginal ideas.”

Among the more legally interesting points at issue is whether the Klingon Language, constructed for the Star Trek universe, is a copyrightable work. The defence relies on , the classic business forms case that developed the principle that copyright protection does not subsist in useful systems. Peters argues that a language—a system for expressing ideas, not the expression of an idea—is not the proper subject matter for copyright protection.

CBS and Paramount as absurd. They counter that Klingon cannot be a system for communication without actual Klingons to communicate with. Further, as a fictitious language, they argue Klingon can be original and copyrightable.

The Klingon issue has attracted outside interest, including an (LCS) which is itself partially written in Klingon. LCS’s brief outlines the history of the language. Marc Okrand was originally contracted to create Klingon dialogue for Star Trek III. He later published a more complete and functional version of the language in a and books on the language. Outside official channels, Klingon has taken on a significant life of its own, with linguists writing academic papers about the language, fans doing translations of , and even a wedding being conducted in Klingon.

The LCS argues that CBS and Paramount could own copyright in specific Klingon dialogue used in their productions or in Okrand’s books explaining the language, but they cannot claim copyright over the language as a whole. They also cite in favour of applying the merger doctrine, the principle that if there is only one or a small number of ways to express an idea, the idea and expression merge and the expression cannot be protected by copyright. The LCS argues the merger doctrine applies because the only way to express ideas in the Klingon language is to use the Klingon language to express them. The LCS also contends that protecting a language would run counter to the Constitutional mandate for copyright in American law, which is to . By granting copyright protection over Klingon, the LCS claims “an entire body of thought would be extinguished.”

Should anyone other than a few die-hard Trekkies care whether Klingon is protectable?

Klingon is not the only complete fictional language. Dothraki, from the Song of Ice and Fire books, was expanded from the words on George R.R. Martin’s pages into a more complete language. J.R.R. Tolkien, an accomplished linguist, created a wide variety of languages for the various races that inhabited his books. A copyright ruling on the protectability of Klingon would therefore also impact everyone who creates, studies or uses those languages.

There are also ”: people who construct their own languages out of interest in linguistics or to support their own literary works. A decision on Klingon would affect the scope of protection over conlangers’ creations.

Most importantly, the decision could apply to protectability of another class of (currently hotly contested) artificially constructed languages: computer programming languages. The US Federal Court of Appeals decision in , which found that the Java programming language’s APIs were protectable, has been described as and for its potential impact on technological innovation. The US Supreme Court denied certiorari on Google’s appeal, but a finding that constructed languages like Klingon are not protectable expression could help create more conflicting precedents, forcing SCOTUS to reconsider.

Jacquilynne Schlesier is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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In particular, Laidlaw highlighted a lack of accountability, predictability and transparency in the current handling of online speech issues. Despite the great power they wield, technology companies are understandably reluctant to face greater government regulation. They flourished in an era of light restrictions and do not welcome rigid, unresponsive policies imposed from outside. Leaving it all up to self-governance has its own problems.

In her research, she found that the technology industry has government regulation and many of the broader working groups addressing free speech, privacy and other governance issues. Tech companies prefer to band with other tech companies to create their own industry working groups. With few exceptions, those groups are voluntary. Corporations are not required to join the groups, nor are they required to comply with any recommendations issued by the groups. The result is that these corporations are not actually accountable to any outside groups for their actions or inaction.

Laidlaw also criticized the way that tech companies address complaints. When users file complaints, or have complaints filed against them, there is often little information available on the progress of issues or the potential outcome. Decisions are usually final and often opaque, leaving no opportunity for appeal. Without any information on how past complaints have been handled, there's little room for users to learn from the process -- at best, they can look to the densely written, ever-changing terms of service and privacy policies to figure out what is and isn't appropriate on a given platform.
Even aggregate information is rarely made available to the public or to researchers, so there is no information to study for trends or to spot problems in how complaints are handled. The issues that get addressed may be subjected to the whims of publicity or corporate public relations goals, rather than any systematic understanding of what is appropriate or important to take action on.

She offered a few examples of what these corporate practices look like in action:

First, she pointed to past occurrences where Facebook hosted groups dedicated to sharing rape jokes. People reported those groups to Facebook asking that they be removed as hate speech. But is a rape joke hate speech? Or is it simply a joke? Facebook’s initial stance was that these groups did not violate any of their terms of service, and they were allowed to stay. After a much greater public protest, Facebook reversed that decision, removed the groups and updated their terms of service to disallow that type of group. The new policy is a shift in how these specific complaints are dealt with, but does not alter the overall process which is complaint based and opaque. You can file a complaint, but you have no path to appeal Facebook’s decision.

Another of her examples concerned the Internet Watch Foundation (IWF), a group created by the UK ISP industry to respond to concerns about child sexual abuse photos. The group was created under threat of government regulation — if the industry did not self-regulate to the satisfaction of the government, they would be regulated externally. The IWF responds to complaints about child porn and manages a block list for UK ISPs to ensure they do not allow access to known repositories. While the IWF was created as a self-governance mechanism, it has limited oversight. Remedies for incorrectly blocked sites are minimal, and there is no notification that a site even has been blocked. She also raised concerns that the tools IWF has developed for addressing child sexual abuse photos could be expanded into other areas like copyright enforcement where the lines between what's acceptable and what's criminal or infringing are less clearly drawn.

In place of ad-hoc, inadequate mechanisms, Laidlaw proposes a new model for corporate social responsibility and governance. In this new model, governments would mandate that corporations have policies and procedures for handling free speech and human rights issues. They would have to include complaint mechanisms that are transparent, predictable and accountable. The government regulations would stop short of specifying what those processes would actually look like, leaving it up to individual corporations to develop procedures that met both their internal requirements and the government requirements.

Without a specific procedure dictated by the government, corporations would require additional support in implementing these procedures. Laidlaw suggests that support could range from sample policies to assist in drafting policies to audit tools that would allow corporations to ensure they were properly executing their procedures. With greater transparency built into the new processes, additional data would be available for research and education. Researchers could assess various policies to determine best practices, and to hold corporations accountable to their own procedures. The information could also be used to educate the public, raising their expectations about how corporations should be acting when faced with complaints.

With the history of pushback from the tech industry, getting corporate buy-in is key to the success of any initiative. Laidlaw’s model may well offer enough flexibility that corporations will accept it, without so much flexibility that they can continue to escape responsibility altogether.

Jacquilynne Schlesier is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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These are the dates that John Weigelt — the National Technology Officer for Microsoft Canada — used to provide scale in his recent IP Osgoode Speaks Series presentation: Adjusting to the Changed Frame of Reference of our Technology Enabled World.

Specifically, these dates represent "the day after". Weigelt asked attendees to imagine waking up on the day after Bell first telephoned Watson, after the Wright Brothers flew over Kitty Hawk, and after Neil Armstrong took one small step on the moon's surface. Would we have known that the world was a different place than it had been the day before or that our collective frame of reference had fundamentally shifted? Hindsight lets us recognize key moments in the development of groundbreaking technologies, but would we have realized them at the time they occurred?

Weigelt offered up a list of technologies currently being developed, improved and used that could have the same scale of impact, including: social computing, the Internet of things, white space wifi, cloud computing, machine learning, robotics, 3D printing, and virtual currencies. He took pains to ground his list beyond hype by outlining the existing practical uses for these technologies including some decidedly unsexy applications like that of machine using handwriting recognition to sort plain old snail mail or the use of robotics in manufacturing. Weigelt also imagined a world in which our household plumbing includes taps for 3D printing goop alongside the hot and cold running water or one where backhoes have giant bionic ant jaws instead of metal buckets.

Technology does not change the world without facing challenges. Weigelt discussed the security and privacy issues that have already resulted from the shift in technology. The rise of cyber crime was a significant focus for the talk, with Weigelt using the timeline of a vulnerability report in order to illustrate certain security issues.

A public release concerning a vulnerability may occur almost simultaneously with the release of a solution for the problem. However, users take weeks to update their systems, which means there remains a window of weeks for hackers to develop and deploy exploits which target unpatched systems. Once a system has been targeted and malicious software installed, patching the original exploit may be an insufficient fix. During the Q&A, Weigelt elaborated on how technology companies are approaching these problems. There is now a shift away from models that rely on users to practice good security hygiene to models like biometrics which are inherently more secure and often paired with ongoing efforts to improve screening and filtering to ensure that users aren’t arriving at malicious websites or receiving malicious email. Weigelt discussed how an open source vulnerability handling model is not necessarily sustainable, citing which had gone undetected for years, and how open-source models do not appropriately balance the need to secure IP with the need to secure systems.

Weigelt also talked about the difference between how the public perceives hacking — sophisticated programmers deploying clever bits of code that defeat even the best designed network security — and the reality of most actual hacks, which involve low-tech, easy attacks like finding computers or networks using a default password and then simply logging in. Surprisingly, simple digital hygiene practices like changing default passwords and regular security updates could stop 97% of system breaches.

The talk also raised a series of ethical and legal issues that inform the discussion around big data, ubiquitous computing and other new technologies. Evidence that might have once been located on a hard drive in a desktop computer may now be painted across multiple servers belonging to a third party and located in a shipping container. How do you seize that data as part of a criminal investigation? With masses of data constantly being collected by everything from police body cameras to always listening virtual assistants, there is an increasing focus on the legal and ethical boundaries on using that information. Who owns it? Who is allowed to use it? How long can they keep it and what can they use it for?

While Weigelt did describe some scenarios where technology companies are working with governments to solve some of these problems, he was also clear that we can’t wait on statutory solutions. Government policies are often behind the times. He then ended the talk by encouraging law students interested in practicing in the technology sector to understand risk management so they can help their clients make legally appropriate choices when faced with questions of trust and security that currently have no clear answers.

Jacquilynne Schlesier is an IPilogue Editor and JD Candidate at Osgoode Hall.

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