South of the border, the FCC has seemed toothless of late in its attempts to control Internet service provision. It longs for the vociferous support its Internet policies enjoyed just a few years ago. A Court of Appeals decision forbade the Commission from interfering with providers’ selective slowing/blocking, and months of subsequent secret net-neutrality-brokering meetings have proven fruitless and been overshadowed by a private Google-Verizon agreement. But, in Ottawa, this week’s back-to-back decisions show the CRTC firmly in control of Canadian Internet policy.

Telecom carriers have been ordered to provide smaller wholesale Internet providers with comparable access to their high-speed fiber. While the telecos may charge them a rate ten percent higher for said access, they insist that such a top-up would insufficiently compensate them for expanding and sharing their networks—discouraging further broadband expansion. The Commission counters that it is preventing a duopoly and encouraging competition while improving customer service. The Globe reports that the decisions have caused Bell Canada’s stock to slide, and that the company plans, at the very least, to appeal the CRTC decision to “order Bell to roll out broadband Internet with wired DSL (Digital Subscriber Line) technology, instead of the company’s newer wireless network”.

Posted in Internet, Regulatory Policy, Telecommunications
Comments: 0

When one approaches the self-serve fountain drink machine at any given fast-food joint, it is usually safe to expect that the liquid beverage sputtering out of the “Coca-Cola®” nozzle would indeed be filling your cup with a Coca-Cola® product. But would one expect the same brand name association to be upheld in the restroom? In a recent Court of Appeals case, the 4^th Circuit held that a paper towelling manufacturer was liable for contributory trademark infringement when it actively encouraged its distributors to supply its own brand of towelling into a competitor’s towelling dispenser.

Georgia-Pacific Consumer Products, LP (GP) is the designer/manufacturer of the touchless paper towel dispenser, “enMotion”. GP designed the enMotion dispenser to work exclusively with its non-standard, ten-inch “high-quality, fabric-like feel” paper towelling.  The enMotion dispenser and paper towelling were introduced in 2002, with no other such products existing on the market at the time. The enMotion dispensers have five of GP’s trademarks visible on its surface, but the enMotion paper towelling does not bear any source-identifying marks. GP leases the enMotion dispensers to distributors, who then sublease to hotels, restaurants, etc. for use in restrooms. The leases/subleases contractually oblige the leasees to only use enMotion paper towelling. It was GP’s intention to create a branded-dispenser situation akin to a branded Coca-Cola soda fountain dispenser, which the user would expect the dispenser to only dispense genuine Coca-Cola products.

The von Drehle Corporation (VD) began marketing and selling in 2005 their own ten-inch paper towelling to be used specifically with the enMotion dispensers. VD’s towels are of notably lower quality than GP’s, with a “slick, scratchy feel”. GP brought the lawsuit against VD for contributory trademark infringement and unfair competition.

The lawsuit was brought to a 4^th Cir. District Court, which gave summary judgment in favour of GP, which was then affirmed by the 4^th Cir. Court of Appeals. Although VD had not physically stuffed the enMotion dispensers with their paper towelling, it was held that VD was liable for contributory trademark infringement as VD intentionally sold its paper towelling to distributors and marketed to customers (i.e. hotels, restaurants, etc.) to use VD towelling as a direct substitute in eMotion dispensers. This ultimately created post-purchase confusion among restroom users as to the source of towelling from enMotion dispensers.

In assessing liability for contributory trademark infringement, the Court of Appeals referred to the Supreme Court decision in Inwood Laboratories, Inc v Ives Laboratories, 456 U.S. 844, 853-54 (1982), which held that “a manufacturer or distributor could be held liable to the owner of a trademark if it intentionally induced a merchant down the chain of distribution to pass off its product as that of the trademark owner’s or if it continued to supply a product which could readily be passed off to a particular merchant whom it knew was mislabelling the product with the trademark owner’s mark”. Applied to VD, the Court of Appeals held that the record contained sufficient evidence to find that VD directly induced trademark infringement and continued to supply its product to distributors knowing that such an infringement was taking place.

The Court’s analysis continued, however, as VD cannot be liable for contributory trademark infringement without first finding a corresponding direct trademark infringement. In a trio of studies accepted by the District Court, it was found that between 70-74% of study participants expected there to be an association of various degrees between the enMotion dispensers and the towelling being dispensed. Between 45 to 47% expected the brand of the towelling to be the same as the dispenser. The Court held that this situation was “no different from a hotel placing a Coca-Cola brand fountain dispenser in its lobby for the complimentary consumption of its patrons, while surreptitiously stocking it with generic cola. There is no question that, in such a case, the hotel is using the Coca-Cola trademark to service its customers (i.e. in commerce) by distributing generic cola in a Coca-Cola brand fountain dispenser.”

In defining the relevant audience for the confusion analysis, the Court rejected the district court’s limitation of the audience to distributors who purchased VD’s towelling and their respective end-user customers. It is established in 4^th Circuit case law that the non-purchasing public can also be considered in the confusion assessment if it can be shown that public confusion will adversely affect the plaintiff’s ability to control his reputation among “its labourers, lenders, investors, or other group with whom the plaintiff interacts” (which also includes post-sale confusion).

The Court held that the three studies clearly show that there was a significant amount of actual consumer confusion as to the source of the paper towelling being dispensed. Thus, the likelihood of confusion among restroom visitors was established. It was also held that because of the poorer quality of VD’s paper towelling, there was a risk of injury to the reputation of GP’s trademarks. VD had interfered with GP’s ability to control the quality of its wares, and thus it was likely that the confusion to the restroom users would adversely affect GP’s reputation/goodwill among its “labourers, lenders, investors, or other group with whom the plaintiff interacts”.

The 4^th Circuit’s application of contributory trademark infringement liability in this case is a doctrine that has been long-applied in American jurisprudence. The doctrine has had a healthy presence in American courts over the past century and continues to thrive as famous brand owners push for greater legal accountability of ‘middlemen’ who help to facilitate direct trademark infringement. However, such a doctrine is notably missing in the Canadian context. In a recent article by James L. Bikoff, et al.  (“Hauling in the middleman: contributory trade mark infringement in North America”, Journal of Intellectual Property Law & Practice, 2010, Vol. 5, No. 5), the authors outline the judicial development of the concept of contributory trademark infringement in America and explain the absence of such a doctrine in Canada.

The authors note that the contributory liability for trademark infringement first appeared in American federal jurisprudence in the 1890s and has developed quickly since then. The doctrine’s application was induced by the futility trademark owners faced when trying to gain legal recourse against individual infringers who are unable to pay for the harm they cause or against infringers that are too numerous or anonymous to be effectively pursued. From an economic standpoint, efficiency “demands that liability be shifted to those in the best position to prevent future infringement, ie those with control over the instrumentalities of infringement”.

Thus, American jurisprudence has evolved to proscribe two requirements for contributory infringement: (1) inducement of direct infringers (i.e. actively encouraging direct infringement) and (2) knowledge of infringement and control over the means of direct infringement. Contributory liability has been applied across various industry sectors and in both “brick-and-mortar” situations (e.g. distributors urging retailers to sell generic goods under brand name) as well as within the more recent Internet realm (e.g. online auction houses permitting sales of counterfeit goods).

In contrast, the authors note that the doctrine’s absence in Canada is due to the Trademark Act’s ‘use’ requirement (see s. 19, s.20 ‘Infringement’ or s.22 ‘Depreciation of Goodwill’ of the Trademark Act; see also s.4 for the definition of ‘use’), which make it “virtually impossible to find an intermediary liable for passing off or trade mark infringement”. However, Canadian courts have recognized the concept of ‘secondary’ liability in a negligence tort claim that may be of assistance to brand owners. This avenue of redress is based on the fact that an intermediary has made ”mere errors of judgement that ought to have been foreseen as potentially contributing to the harm of others; it is a question of an intermediary having knowledge, and how that part acted, or failed to act, upon that knowledge”. Thus, this liability can only be applied where the intermediary made errors in judgment in reacting to the knowledge of infringement, which then amount to negligence causing provable damage. The authors conclude that the availability of direct tort liability in Canada can potentially be utilized to effectively help brand owners against intermediaries in Canada.

While the use of a negligence approach in lieu of a trademark infringement doctrine may well be feasible in Canada, the absence of a contributory trademark infringement doctrine in Canadian law seems to be a somewhat peculiar omission. In the copyright realm, authorizing/contributory infringement is a firmly established doctrine that can be traced to s.3 of the Copyright Act, which provides copyright owners the authorization right to their works. The Supreme Court of Canada has held that authorizing infringement will occur when there is a sanctioning and encouraging of the infringing activity with sufficient control over the facilitation of such activity (e.g. see CCH v LSUC, [2004] 1 S.C.R. 339 at para. 38, SOCAN v CAIP, [2004] 2 S.C.R. 427 at para. 127). If this were to be applied in a trademark setting, the active encouragement by VD to its distributors to directly engage in trademark infringement would easily fit the bill of authorizing infringement. Of course, it is also understandable that by opening the law to allow for an authorizing trademark infringement doctrine, it could potentially stifle the operations of third parties or ‘middlemen’ in all industries. But in light of the flood of counterfeit goods and the ease at which they are presented over the Internet these days, it would only seem fair and in line with ‘economic efficiency’ to keep Canada’s intellectual property laws symmetrical. However, whether an authorizing/contributory trademark infringement doctrine will be more effective in aiding brand name control than a negligence liability approach might shape the direction Canadian courts wish to take.

Posted in Trademarks, Uncategorized
Comments: 0

Michael John Long is an LLM candidate advancing to the PhD at Osgoode Hall Law School

In his recent essay, Do Patents Have Gender? , intellectual property scholar Dan L Burk admits upfront that the title question ‘strikes many readers as improbable, even nonsensical.’  However, the posited question aims to introduce just how an intellectual property system, which is designed to grant sets of exclusive rights, can include elements of gender.   As Burk notes, feminist scholarship over the past few decades has illuminated the ways in which gender plays a role in many theories and practices of law; including criminal law, civil rights, family law, employment law, tax law, and so on.

In some situations, the utilization of feminist scholarship has shed light on overt discrimination or inequality.  In others, feminist commentators have helped to clarify less obvious systemic biases in the law, all of which ‘serve to reinforce stereotypes, or perpetuate oppressive power relationships.’

The influence of feminist scholarship is now beginning to be felt in the field of intellectual property.  Osgoode Hall Law School’s Professor Carys Craig works within this context, examining copyright law from a feminist perspective.  And yet, feminist perspectives have been slow coming to the field of patent law; while ‘feminist intellectual property scholarship itself is underdeveloped… feminist patent scholarship is almost unheard of.’  The aim of the essay then is to incite more examination of the patent area of intellectual property ‘where feminist insights have to date been underdeveloped.’

The way in which this task is completed in the essay is through the consideration of the ways in which the patent system might include gender bias.  To discover the existence of such bias within the patent system, Burk examines ‘the objective doctrines of patentability embodied in the legal fiction of the PHOSITA, the Person Having Ordinary Skill in the Art.’  In considering the problem of ‘objectivity’ and ‘objective’ legal standards, through feminist scholarship, Burk suggests that the PHOSITA standard does in fact include the gender characteristics found in other areas of law.  In the close of his essay, he notes that although shifting away from an ‘objective’ standard for patentability would involve substantial changes in patent doctrine, a ‘tug and pull between a new obviousness standard and a new disclosure standard could shift patenting in differing directions.’

Burk’s essay speaks acutely to a systemic problem within intellectual property law, among other fields.  The moral which seems to drive this examination is found in the idea that those who make the law do so according to their own interests and those who are not present are those not represented.  This provides a means to critique issues that exist within intellectual property regimes which may stem from laws which are built according to the interests of those who create them.  In response to the particular manifestation of the moral which drives this essay, Burk has successfully shown that ‘although the conversation in second wave and even third wave feminism might seem to have passed intellectual property by, the tools provided by feminist scholarship are useful in critiquing and evaluating characteristics of intellectual property law that might otherwise go unexamined.’

Posted in IP, Patentability
Comments: 0

Steven Zuccarelli is a 2012 JD Candidate at Osgoode Hall Law School.

New York Senator Charles Schumer has recently unveiled the latest U.S attempt to protect innovative and novel fashion designs.  The Innovative Design Protection and Piracy Prevention Act (IDPPPA), an amendment to the U.S Copyright Act, aims to curtail knockoffs of new fashion designs.  Sen. Schumer states, “Unregulated, high-end knock offs are hurting the integrity of this industry, my legislation will level the playing field with European designers and protect an industry that employs hundreds of thousands of New Yorkers and pumps billions of dollars into the local economy.”   The bill itself can be viewed here.

The United States has yet to adopt any legislation of this kind so far, unlike some European nations who have been utilizing fashion design IP protection for some time.  The IDPPPA succeeds the highly criticized Design Piracy Prohibition Act (a previous post on IP Osgoode investigated the DPPA, found here).  Achieving a balanced IP protection scheme in fashion has been difficult in the past, due in part to the copying that commonly occurs between design houses as new trends develop.

The IDPPPA aims to protect the IP in fashion design by taking into account the unique characteristics fashion has in relation to other industries.  The IDPPPA specifically limits design protection to 3 years, reflecting the constant, fast paced and ever-changing trends typical of fashion design.  Also key to the new legislation is the establishment of a high qualifying standard for protected designs. Designs that are new, original and are a non-trivial and non-utilitarian variation over prior designs will be protected.  In addition, garments created up to the enactment of the legislation will remain in the public domain, preventing monopolies from being formed were a firm to attempt to apply for a general, existing and common design, such as a “t-shirt”. Fair dealing exemptions have also been added, allowing individuals to replicate protected designs for their own personal use.  Further, teaching and analysis exemption provisions have been added, facilitating research and education in cutting edge, protected fashion designs. 

The IDPPPA would also mandate that all new designs are immediately protected, and that registration of new designs is not mandatory.  The intent behind this change would be to save designers from small firms the relatively costly registration fees, allowing them to concentrate their limited resources on remaining competitive with larger and more established firms. This notion shares ideas with copyright, where works are protected upon creation. 

Another key component of the IDPPPA is the court requirements established for filing and pursuing a claim of infringement.  The bill places the burden of proof primarily on the plaintiff, who must prove that their design is entirely novel and original. Specifically. the plaintiff must prove it is “a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs.”  Minor variations in a fabric print would not pass that test.  In addition to establishing the uniqueness and originality of the design, a plaintiff must also prove that the defendant’s design is substantially identical, and that the defendant had the opportunity to access the design before it was released for public distribution by the plaintiff.  These provisions, as well as others, have been summarized by Kathleen Fasanella, whose blog post can be found here.

The introduction of the IDPPPA carries with it the support of two interest groups that have historically been at odds with each other, as Susan Scafidi points out in her Counterfeit Chic blog.  The Council of Fashion Designers of America and the American Apparel and Footwear Association were both consulted during the construction of the bill, along with Scafidi, a Fashion Director at Fordham Law School’s Fashion law Institute.  Scafidi believes that these two groups, who comprise a vast majority of designers and manufacturers in North America, have helped bring forward legislation that introduces “a new consensus approach to IP law that represents the interests of creators, producers, and consumers alike”, primarily through its high burden of proof resting on the plaintiff as well as the lack of mandatory registration.  This approach will not significantly impact a consumer’s choice or cost, according to Scafidi.

Others are also optimistic that the bill will positively impact the industry.  Fasanella believes that with protection of a design running from the time of initial public exposure, designers from large firms may not pour as much money into pre-release marketing.  This spending historically increases exposure of the yet to be unveiled design, providing greater buzz once it is released for sale, and consists of controlled “leaks” of upcoming designs to magazines and blogs well before a design’s official release.  However, with the new IPPPDA protection measures, there will be a greater incentive for firms to delay the release of a design until it is ready for sale, maximizing its time on the market as a protected design.  Fasanella hopes this leads to a refocus on product quality rather then brand image, as firms re-allocate funds towards other elements of the product rather than pre-runway season marketing. Further, this may benefit smaller designers who did not have the capital to market their designs heavily prior to their unveiling.

Some, however, have not been as quick to embrace this legislation.  Only an article that is a “unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles,” qualifies as a protected fashion design under the IDPPPA.  Practicing fashion lawyer Staci Riordan believes the courts will have difficulty in defining those characteristics (her blog post found here), as lawyers and judges may not be qualified in distinguishing the latest and most subtle fashion designs.  As a consequence, very few if any fashion designs may actually qualify for protection.  This may make the legislation largely irrelevant.

But the greater risk according to Riordan may be that the bill would be interpreted far more expansively by judges and lawyers.  This may lead to over protection of certain fashion designs, potentially stifling innovation and perhaps leading to fashion trend monopolies, as Kal Raustiala and Christopher Sprigman have noted in their New York Times editorial (found here).  This has led some, including Riordan, to believe that lawyers may be among the biggest beneficiaries of the bill, as the interpretation of the “new and original” provisions within the bill may promote lengthy litigation as a common solution.  This may be further aggravated by the lack of mandatory registration for design protection.  It may prove difficult for designers to know with certainty that their designs, prior to release, are new and unique if there is no accessible database of designs to search, as Riordan has pointed out.

Aside from specific provisions in the bill, the idea that fashion designs should be protected by law also faces challenges.  Kal Raustiala and Christopher Sprigman, two law professors (at UCLA and UVA Law Schools), advocate that the fashion industry has unique characteristics that are best served by copying practices (their NYT Freakonomics blog post can be found here).

“…The interesting effect of copying is to generate more demand for new designs, since the old designs—the ones that have been copied—are no longer special…The overall result is greater sales of apparel. We call this surprising effect the ‘piracy paradox.’  That fashion remains an outlier reflects the unusual incentives of the industry.”

It is clear that the debate over IP protection in fashion will continue to be fought in the coming months.  Maintaining the status quo, which, according to Schumer, is not conducive to innovation, does not seem a fair solution for those moving the industry forward in terms of design. The IDPPPA creates a high threshold for protecting fashion designs, allowing protection for only the most innovative and original designs.  The bill also allows for existing designs to serve as inspiration without any risk of infringement, while shifting the burden of proof onto plaintiffs.  This creates disincentive for spurious litigation.  However, as Riordan, Raustiala and Sprigman point out, the interpretation of the bill may prove problematic for fashion-inexperienced judges presiding over these disputes.  This can potentially have serious implications on both large design houses that may engage in expensive litigation and smaller fashion designers that cannot afford to do so.

Posted in IP
Comment: 1

Robert Dewald is a J.D. Candidate at Osgoode Hall Law School 

Canadian telecommunications giant Research in Motion (RIM), which manufacturers the popular BlackBerry, has reportedly offered information and tools to assist India’s government in monitoring encrypted emails and messaging services (Reuters).  India, which had threatened to shut down the BlackBerry service, is the latest country to pursue access to user communications from RIM.  Recently the governments of Saudi Arabia and the United Arab Emirates have also threatened to ban BlackBerry services unless RIM provides access to user data (Reuters).

The threat by foreign governments to ban BlackBerry services poses a serious danger to RIM.  Competitors in North America continue to eat away at RIM’s once dominating grasp on the smart-phone market, and RIM wishes to expand in the global marketplace to further develop its customer base.  The Montreal Gazette reported that during the last fiscal year, 37 per cent of RIM’s $15 billion in revenue came from outside North America, up from 23 per cent about five years ago.  The demand for security concessions from countries such as India may threaten to erode RIM’s customer base as smart-phone manufacturers Nokia and Apple have already lined up to move into this market. 

RIM, unlike rivals Nokia and Apple, controls its own networks, which handle encrypted messages through centres in Canada and the UK.  Should BlackBerry service be restricted in India, Nokia and Apple would easily snatch up RIM’s market share. This is because Nokia and Apple rely on local telecommunications infrastructure to transmit their data allowing easy government oversight.  As a result Nokia and Apple would not be subject to a similar ban, as proposed by the Indian government against RIM. 

India has suffered deadly attacks, by both home grown and foreign militants, with some regularity for years. Mohammed Ajmal Kasab, the lone surviving gunman in the 2008 Mumbai attack, told an Indian court that he and his comrades all had Nokia mobile phones (Huffington Post).  India and other foreign governments are seeking access to encrypted Blackberry communication that could be used to coordinate national security threats.    

In response, RIM has assured its customers ‘that it genuinely tries to be as cooperative as possible with governments in the spirit of supporting legal and national security requirements’ (RIM Release).   RIM stated that a foreign government’s access to BlackBerry communications should not be boundless, and ‘lawful’ access be limited by four principles.  First, that access be restricted to the context of national security requirements as governed by the country’s judicial oversight and rules of law.  Second, government access to BlackBerry services should be no greater than regulators already impose on RIM’s competitors and other similar communications technology companies.  Third, no changes will be made to the BlackBerry’s security architecture and finally that RIM will maintain a consistent global standard for lawful access requirements that does not include special deals for specific countries.

RIM and other companies will likely continue to work with foreign lawmakers in their respective countries to resolve national security concerns.  However, in doing so RIM risks damaging an important aspect of its business, its reputation.

BlackBerry Messenger users have long enjoyed the secure end-to-end encryption methods used by RIM to scramble information sent from one RIM phone to another.  However, as reported by the Globe and Mail, RIM may have agreed to place a BlackBerry server inside Saudi Arabia and more recent reports indicate RIM may hand over the “codes” to all local BlackBerrys to the Saudi government. Providing such information has drawn RIM into the ongoing debate of the morality and ethics of allowing foreign government access to communications that can be used to quell political dissent and imprison human rights advocates.  The Toronto Star reported the comments of Ron Deibert, director of the Citizen Lab at the University of Toronto’s Munk School of Global Affairs: “These can be ruthless nasty regimes where political opposition or human rights advocates are imprisoned or worse. In colluding with them, [RIM is] assisting in that abrogation of human rights.”

Canada and the United States (U.S.) have aligned behind RIM against access to Blackberry communication, citing the need to defend consumer privacy and internet freedom (Embassy).  The economic interests of Canada and U.S. are also at stake, which may have instigated the strong response by these countries against the proposed BlackBerry bans.  Patrick Leblond, an expert on international economic integration and government-business relations at the University of Ottawa summarized Canada’s position “It is good business for the Canadian government to stand up for RIM, since this is one of the world’s leading technological companies, and ‘what is good for RIM is good for Canada.’”   

RIM’s struggles with foreign governments to maintain its security systems and preserve its market share will likely expand to other forms of communication.  Any concessions made by RIM may set a precedent for future negotiations between foreign governments and other communications companies.  As reported by the Times of India, the Indian government is already considering a crackdown on Google and Skype to gain access to the information transmitted by these services. Moving forward, it will be interesting to observe the impact that RIM’s security negotiations will have on other communications based companies.

Posted in Cross Border Issues, Human Rights Issues, IP, Privacy, Technology, Telecommunications
Comments: 0

While practitioners have long considered the transnational sphere an anarchic Wild West, Rough Consensus and Running Code: A Theory of Transnational Private Law reveals elaborate regulatory foundations comprising both “hard” and “soft” law.

In the book, Peer Zumbansen–professor and Canada Research Chair in Transnational & Comparative Law of Corporate Governance at Osgoode Hall Law School–explores a range of online consumer transactions and corporate activities, developing an innovative transnational legal theory.

Read more on YFile

Posted in Regulatory Policy
Comments: 0

IPilogue (www.iposgoode.ca) is the first online review of its kind, featuring thoughtful intellectual property and technology law commentary by its student editors as well as scholars and other experts from around the world. As an interdisciplinary forum, we explore issues ranging from biotechnology to telecommunications, media to privacy, antitrust to tort, and beyond. Based at Osgoode Hall Law School, IPilogue seeks to promote evidence-based dialogue featuring a multitude of perspectives. We welcome applications from graduate and undergraduate students enrolled at any law school.

IP Osgoode seeks to recruit students for the following positions: IPilogue Editors, Development & Training Editors, External Relations Editors, Managing Editors, Production Editors, Submissions Editors, and Symposium Editors.

We encourage you to apply (details here)

Posted in General
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Michael John Long is an LLM candidate advancing to the PhD at Osgoode Hall Law School

In a recent blog posted on the IP Osgoode website I considered the ruling in City of Ontario v. Quon; a case in which the U.S. Supreme Court ruled on the issue of the privacy of employee text messages sent using employer issued equipment.  In the Quon decision, the justices unanimously ruled that the search of the employee’s personal messages on his government owned device did not violate his constitutional rights.  In conversations following the blog I noticed that the topic of discussion often shifted, and rather quickly, from the expectation of privacy directly to the violation of privacy, and all with little regard for the grey area involved, the area of harm.

In Ryan Calo’s recent essay, The Boundaries of Privacy Harm, he urges that closer consideration be paid to the notion of privacy harm as ‘no person need commit a privacy violation for privacy harm to occur (and vice versa).’  In his article he defines both the subjective and objective aspects of privacy harm in order to establish the concept as its own entity, one separate from privacy violations.  He notes that the two categories of harm are distinct and yet related, ‘just as assault is the apprehension of battery, so is the unwanted perception of observation largely an apprehension of information-driven injury.’  The subjective and objective categories can be thought of as the anticipation and consequence of a loss of control over personal information, respectively.

Subjective privacy harms are those experienced from the ‘unwanted perception of observation,’ and can range from singular to ongoing events, from individuals to groups, from mild discomfort to great mental pain and so on and so forth.  An important distinction is that generally, to be considered harmful, the observation must be unwanted, and yet, actual observation does not need to occur to cause harm; ‘perception of observation can be enough.’

Objective privacy harm involves ‘the forced or unanticipated use of information about a person against that person.’  This harm occurs when personal information is used adversely against that person, such as when ‘the government leverages data mining of sensitive personal information to block a citizen from air travel, or a neighbour forms a negative judgment from gossip.’  Another example is when personal information is used to commit identity theft or murder.  In order to constitute harm, use of the personal information must be unanticipated or coerced, and again actual observation does not need to occur for information to be used against a victim.

Calo’s aim in the essay is quite simple and is espoused in his comment that privacy harm is a ‘crucial but under-theorized aspect of an important issue.’  In the essay he aims to discover both the ‘mechanism and scope’ of privacy harm in order to attain conceptual clarity.  More than that however, he wishes to discover the boundaries within which privacy harm occurs, which will be useful for ‘scholars, courts and regulators attempting to vindicate and protect privacy and other values.’  The approach which Calo has adopted ‘uncouples’ privacy harm from privacy violation thus creating a limiting principle in order to distinguish the former from other values, as well as create a rule of recognition which helps to identify privacy harm when no other violation is present.

What can be said about The Boundaries of Privacy Harm is apropos when compared to what Calo says in his essay about Daniel Solove, a leading privacy scholar, who rejects that privacy should be reduced to any one or more concepts.  Although Calo ultimately believes that without a ‘limiting principle or rule of recognition we give up the ability to deny that certain harms have anything to do with privacy… which in turn can be useful in protecting privacy,’ he notes that ‘there is no denying the value of the complete, nuanced, and interconnected picture of privacy that Solove’s taxonomy presents.’  In the same way Calo recognizes that his referenced author ‘delivers what he promises’ so too should we recognize that Calo delivers on his aim to provide an understanding of the mechanics and sizing of privacy harm.

Posted in Human Rights Issues, Identity Theft, Privacy
Comment: 1

Amanda Carpenter is a JD Candidate at Osgoode Hall Law School.

The New York Times has recently published an interesting article about academic plagiarism. Within the article, a couple of examples of plagiarism are provided. The first example involves a freshman student who copied and pasted from a Web site’s frequently asked questions page, and did not think he needed to credit this Web site as a source in his assignment because the page did not include author information.  The second example involves a student who was reprimanded for copying from Wikipedia without crediting it as a source. This student said that he thought what he had copied from Wikipedia did not need to be credited since it counted, essentially, as common knowledge.

The article then goes on to discuss how educators who study plagiarism believe that these examples suggest that students do not understand how using words they did not write without crediting the source is a serious misdeed.  These educators then blame this problem on a disconnect that is growing in the Internet age as concepts of intellectual property and copyright are under assault in the unbridled exchange of online information. That is, the Internet may be redefining how students “understand the concept of authorship”. Not only does it lead students to believe that information on the web is “just out there for anyone to take”, it fools them into believing that everything on the Internet belongs to them.

I would personally disagree with these educators who blame plagiarism on the Internet age. In fact, I agree with the views of Ms. Wilensky that are presented in the article. She thinks that the main reason plagiarism at colleges and universities occurs is that students leave high school unprepared for the intellectual rigors of college writing. She writes: “If you’re taught how to closely read sources and synthesize them into your own original argument in middle and high school, you’re not going to be tempted to plagiarize in college, and you certainly won’t do so unknowingly.”  This view is further supported by statistics included in the article. Apparently, at the University of California, Davis, those that oversaw the 196 plagiarism cases that occurred that year stated that the students were “unwilling to engage the writing process” and that “writing is difficult, and doing it well takes time and practice”.

Teaching how to properly write and credit sources takes more time than simply having professors deal with plagiarism by admonishing students to give credit to others and to follow the style guide for citations. In regards to the first example of plagiarism provided by the article, perhaps the style guide for citations that the professors told students to follow did not include a section for how to deal with Internet sources that didn’t include author information? As for the second student who was reprimanded for copying from Wikipedia without crediting the authors, shouldn’t the student have instead been reprimanded for relying on Wikipedia as a source? Even Wikipedia cautions users about using Wikipedia as a research source.

Although I agree with the views of Ms. Wilensky who thinks that the rise in plagiarism may be linked to students not fully understanding how to write properly (including how to cite sources), there may be other reasons behind the rise in plagiarism, as listed in articles on this topic by the BBC. In England, plagiarism has been on the rise as well, but instead of blaming the problem on the Internet age, other reasons are cited. These include the rise of sites online that sell essays to student (such as this site here), increasing pressures on students to get good grades in order to secure a job after graduation, and larger class sizes at colleges and universities where the professors may not have enough time to teach each student how to write properly (and instead simply telling them to follow the style guide for citations).

So, instead of educators blaming the Internet age for the rise in plagiarism due to a redefined the “concept of ownership”, perhaps other culprits are the cause such as larger class sizes where the professors may not have time to engage with students more closely. Teaching how to cite sources properly takes a fair bit of time and may even be a course in itself (and certainly wasn’t taught in my high school or at my undergraduate institution for that matter). The rise in plagiarism might also be blamed at least partly on increasing pressures on students to perform well in order to get a good job after graduation, or even unrealistic demands being placed on students. It’s now entirely clear why a student would risk being caught by a professor for plagiarism, when the penalties can be very severe. For example, Simon Fraser University has introduced a grade lower than an F, called FD (failed for academic dishonesty). Receiving this grade means that the student has been caught in a serious act of plagiarism, and it is a grade that will remain with a student for the rest of their academic career.

Posted in Infringement, Internet
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Stuart Freen is a JD candidate at Osgoode Hall Law School.

Following the release of the much anticipated U.S. Supreme Court decision of Bilski v. Kappos, the U.S. Patent and Trademark Office has recently published some interim guidelines on subject matter patentability. Titled Interim Guidance for Determining Subject Matter Eligibility for Process Claims in View of Bilski v. Kappos, the document provides a consistent approach for patent examiners to apply the principles espoused by the SCOTUS. Notably, the guidelines instruct examiners to place less emphasis on §101 of 35 U.S.C. (subject matter eligibility) which the Supreme Court noted was only a “threshold test”. Instead, the guidelines suggest that examiners focus on other requirements such as §102 (novelty), §103 (non-obviousness) and §112 (specification).

As covered here last month, Bilski v. Kappos was a highly anticipated patent case that hinged on whether business methods are patentable. The applicant had devised a method of hedging fluctuating commodity prices by selling consumers energy at fixed rates. The Supreme Court was unanimous in its finding that the claimed invention was unpatentable because it was an abstract idea (a category of invention which is inherently non-statutory). However, the Court was split on the issue of whether business methods as a category are patentable. The majority held that they can be, so long as they don’t run afoul of the other sections and exceptions of the legislation.

The Court also rejected a strict application of the “machine-or-transformation” test under which abstract processes must either a) be tied to a particular machine or apparatus, or b) transform a particular article into a different state or thing. The Court found that the machine-or-transformation test is only a “useful and important clue” as to whether an abstract process is patentable.

The new USPTO guidelines attempt to delineate when a method is an abstract idea vs. a patentable process in light of Bilski. The guidelines suggest that the machine-or-transformation test should still be applied, but that it is only one non-determinative factor to consider. Many other factors are outlined in the guidelines, including generally: the specificity of the claims, whether there is a narrow field of application, and whether it is essentially an application of laws of nature.

The effect of the guidelines will be that §101 will no longer be an insurmountable hurdle for abstract method claims to climb. The guidelines are clear that §101 is “merely a coarse filter and thus a determination of eligibility under §101 is only a threshold question for patentability.” It is unclear exactly which types of claims Bilski will pave the way to patentability for, but certainly some business method patents will now be issued where the claims are specific and applied enough to not cast too wide a net. It may represent a lower burden for certain types of software and computer algorithms that don’t fit neatly into any of the §101 categories.

Posted in Innovation, Patentability, Patents
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