Nikita Munjal is a 3L JD/MBA Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s IP Intensive Program.

Using the Internet inevitably requires consenting to have your personal information used, collected, and disclosed by the websites you visit. A common reason for individuals, corporations, and non-profit organizations to collect your personal information is to influence your behaviour online, from your to your . One of the most effective ways to influence consumer behaviour online is through targeted advertising.

Value for Advertisers

Access to personal information has become necessary for advertisers to convert potential leads into customers. Think back to 2012, for example, when a suggested that a statistician working at Target predicted a teenage girl’s pregnancy based on her shopping habits. What did Target do with this information? It mailed her coupons for baby clothes and cribs.

that the value of your personal information to advertisers depends on various factors. Factors influencing value include your gender, race, and sensitivity of the information (that is, cost more than ). If, for example, the target audience for a new sneaker launch is young males of middle eastern origin, the spent to acquire your personal information is a minor investment to incur to influence you to purchase $180 sneakers.

Value for Users

Traditionally, users have valued the ability to share their personal information while using online services, like search engines or social media platforms, citing their .

However, increasingly, . This trend has mobilized startups in Silicon Valley to appeal to privacy-conscious users by providing them an incentive to share their personal information. Known as paid-to-surf models, companies in this space require their users to install browser extensions to track their browsing.

What monetary value do some privacy-conscious users demand to share their personal information? $20 a month for users of . Others are . While these paid-to-surf models have the potential to be disruptive, they are not yet a viable alternative, as users must surf a certain amount before they can cash out. ��

Value Going Forward

The tech industry has built empires based on collecting, using, and selling its users’ personal information to third-party advertisers. Surprisingly, some factions of the tech industry are modifying their business models to limit the tracking of personal information. Apple, for example, introduced a new iOS in 2021, s. Similarly, on its Chrome browser is estimated to impact millions of advertisers.

Apple and Google argue that these changes are necessary to respond to increasing and customer sensitivity to sharing personal information (the IPilogue has documented increased regulation in the and ). However, , including , lament that the changes are veiled anti-competitive practices.

Interestingly, increasing barriers to the online advertising ecosystem may benefit users. If access to personal information becomes impeded, interested parties may need to incentivize users to share their personal information, increasing users’ bargaining power. Although it is unclear what effect Apple and Google’s changes will have on the ecosystem, I am hopeful that users can leverage more control over their personal information for fair compensation by technology companies or advertisers for their valuable commodity.

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Illustration by (Ikon Images)

Emily Xiang is a����is a����IPilogue���°����ٱ��, President of the Intellectual Property Society of Osgoode (IPSO),��and a��2L JD Candidate at Osgoode Hall Law School.��

������surrounding��a copyright claim has taken over the North American online writing community, and it involves a kidney donation, a private Facebook group, and a short story. ��

��and��, both authors, first crossed paths sometime between 2005 and 2007 at��GrubStreet—a creative writing��centre��in Boston. On June 24,��2015, Ms. Dorland donated one of her kidneys in a “paired exchange”, whereby her kidney was given to save the life of��one��recipient, whose wife in tur����donated��her��kidney to a young mother in Portland. Several weeks prior to the surgery, Ms. Dorland��created a private Facebook group to share��her experience with friends and family, including some fellow��GrubStreet��writers,��one��of which��was Ms. Larson. Following the surgery, Ms. Dorland posted i����the group a personal and heartfelt letter she had written to the final recipient of the surgical chain.��

Exactly one year following the surgery, a Facebook friend of Ms. Dorland’s��commented on one of her posts, asking whether she was the source of inspiration for a short story��that��was��authored��by Ms. Larson. ������between the two ensued,��eventually escalating��into a��larger��dispute, in which Ms. Dorland expressed she was “a little surprised” by the discovery, especially “since we’re friends and you hadn’t mentioned it.”��Ms. Larson contended that the story was “not about you or your particular gift, but about narrative possibilities I began thinking about.” ��

��by Sonya Larson is a story about alcoholism,��addictive thinking, and the Asian American experience. While the story itself underwent multiple revisions, each iteration of the story contains a version of a����addressed from a kidney donor��to a recipient��that, to varying degrees, bears similarities to��the����Ms. Dorland��originally posted on Facebook. ��

On June 10,��2018, Ms. Dorland����her donor letter with the U.S.��Copyright Office.��Ms. Larso������legal actio����at the start of 2019 following��a number of��attempts by Ms. Dorland to prevent publication of��The Kindest��at a book festival, and an onslaught of plagiarism allegations.��In the most recent����(Civil Action No. 19-cv-10203-IT),��Ms. Dorland’s��copyright infringement��claims��were allowed, while her claim for��intentional��inflictio����of��emotional��distress��was denied. ��

In order to��,��Ms. Dorland will need to show:��(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. The second prong of this test contains two steps: (1) proof that the defendant copied the plaintiff’s copyrighted work as a factual matter (either directly or through indirect evidence), and (2) proof that the copying of the copyrighted material was so extensive that it rendered the infringing and copyright-protected��works ‘substantially similar’. To this second step, Ms. Larson contends that the relevant excerpts from��The Kindest��are substantially��different��from Ms. Dorland’s��letter. Alternatively, she��argues that by having modified snippets of the letter, her short story should be regarded as��a��“—a legal defense that��allows��users��to make limited use of��a����original work without seeking permission. In the further alternative, Ms. Larson may also��argue��that the story contained i����The Kindest, being generally different from the narrative of Ms. Dorland’s��life,��is variable enough to contribute��to��an altogether different meaning��of��the letter in the short story.��

The legal issues at hand call back into the spotlight an age-old question that courts have��always��struggled with answering in copyright law—where does one draw the line between when a work ca����and cannot��be protected? As with any infringement case, the courts must balance the protection of creators’��interests and the incentivization of societal innovation.��

I����,��Lynch J. held that “two works will be said to be substantially similar if a reasonable, ordinary observer, upon examination of the two works, would ‘conclude that the defendant unlawfully appropriated the plaintiff’s protectable expression’”��(quoting��). However, one may “avoid infringement by intentionally making substantial alterations in the design of a copyrighted work so as to provide a substantially different expression of the idea embodied in the copyrighted work,”��so long as “the points of dissimilarity not only exceed the points of similarity, but indicate that remaining points of similarity are...of minimal importance either quantitatively or qualitatively” (). ��

The intriguing timeline of events surrounding the controversy has been followed closely by online writing communities, and the legal conclusion to the dispute��by many others with bated breath.��A recent����on the matter went viral over the��Internet, and��has kindled��passionate debate and commentary from numerous users over Twitter, many of them eager to��pick��a��side. More recently, Kolker published��, concluding with: “At any moment, we all can retreat into our own echo chambers and decide on our versions of the truth—which can tur����any of us into bad art friends.”��

��

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On April 3, 2021, Business Insider����that information relating to over 530 million Facebook accounts had been made publicly available online. It is����that 3.49 million accounts belong to Canadians and the leaked data included names, locations, birthdates, email addresses, and other identifying information.��

In response, Facebook issued a����that stated that the information was not leaked through a recent hack, but was the resurgence of data that was taken from the platform in 2019. Facebook claimed that the information was obtained via data scraping, where automated software is used to obtain public information from the internet and distribute it to online forums. The company believes that malicious actors took advantage of the vulnerability in Facebook’s contact importer feature, which is designed to help users easily find and connect with friends through their contact lists. Through exploiting the feature, the malicious actors were able to obtain information from users’ public profiles. Facebook has assured the public that the malicious actors had limited access to users’ information and the leaked data did not include financial information, health information, or passwords.

The news release also stated that Facebook made changes to its contact importer feature in 2019 to address the issue. More specifically, it modified the feature to prevent malicious actors from imitating the Facebook app and uploading a large set of phone numbers to find matching Facebook users. Facebook stated that it will work to get the data set taken down and that it will continue to combat the misuse of its platform’s features.

Written by M. Imtiaz Karamat, Osgoode Alumnus and Student-at-Law at Deeth Williams Wall LLP.

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