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  • Legal Aspects of Software Sidney Fong 2006-03-18
  • Disclaimer
    • The authors are not lawyers of any jurisdiction. This presentation does not constitute legal advice. One should consult their own lawyers for legal advice.
    • The authors do not accept any liability for any loss or damage , whether physical or financial or otherwise, caused relying on any information provided herein.
    • The information presented herein can by no means be considered complete and error-free.
  • Disclaimer (Cont’d)
    • By the way, do you know why we need a disclaimer like this?
    • The Legal Practitioners Ordinance s46(1):
      • Any unqualified person who wilfully pretends to be, or takes or uses any name, title, addition or description implying that he is qualified or recognized by law as qualified to act as, a solicitor shall be guilty of an offence and shall be liable on summary conviction to a fine of $500000.
    • In Tort law, if a person relies on information given by a specialist and incurs losses, he may be able to sue the specialist for the losses. Of course, a disclaimer will be useful here.
  • About today’s presentation
    • I aim to provide some solid legal groundwork before moving on to more “computer related” parts that may be more interesting to you. Therefore:
    • The first part will be very boring. It may be less boring if you participate in the discussion.
    • It may be complicated (this is exactly what I am supposed to learn as a full time student). It may be easier to understand if you ask questions.
    • So please be more active! 
  • Today’s Features…
    • Boring basic stuff in the beginning 
    • Are EULA’s valid? Are shrink-wrap licenses valid?
    • Legality of “BT” and other file sharing programs?
    • Legal Basis of Open Source Software Licenses
    • Can Open Source Licenses be revoked?
  • Today’s Presentation
    • Introduction to Law
    • Legal System of Hong Kong
    • Brief Introduction to Criminal Law
    • Contract Law
    • Some Aspects of Property Law
    • Patent Law
    • Copyright Law
    • Software Licenses
    • Miscellaneous
  • “Law”
    • What is Law?
    • Why do we have to know about law?
    • What is the purpose of Law?
      • Bring order to society?
    • Role of Law in Hong Kong?
      • What is the effect of Chinese Traditional culture on the role of Hong Kong
    • Any alternatives to law?
  • Moliu topics for discussion
    • Case 1:
      • (Adapted from Alan Tam)
      • You bought a pack of biscuits from supermarket, which gone bad soon.
      • You want refund, but the back of the receipt reads: “No refund after 7 days.”
    • Case 2:
      • (Adapted from Wikipedia)
      • ULSP is a Xanga visitor tracking service that enable Xanga users to obtain the visitor's username on Xanga, and IP address, etc. There are concerns that the use of ULSP may violate privacy and official policies, as the Xanga terms of use states, "you must agree not to use Xanga's products or services to... collect or store personal data about other users". Is ULSP legal?
    • Case 3:
      • Do you know that (theoretically) we cannot use 毫子 to pay more than $2? And we cannot use coins to pay more than $100? (Coinage Ordinance)
  • Preliminary Terms
    • Law – 法律 (etc.)
    • Chief Executive – 行政長官
    • Legislature – 立法機關
    • Legislative Council – 立法會
    • Court – 法院 / 法庭
    • Common Law – 普通法
    • Precedent – 先例
  • Today’s Presentation
    • Introduction to Law
    • Legal System of Hong Kong
    • Brief Introduction to Criminal Law
    • Contract Law
    • Some Aspects of Property Law
    • Patent Law
    • Copyright Law
    • Software Licenses
    • Miscellaneous
  • Basic Law.
    • Our “Constitution” – it provides legal basis for everything in Hong Kong
      • Even the government, courts and legislature derives legal legitimacy from the Basic Law!
        • Art 43: Chief Executive
        • Art 66: Legislature (Legislative Council)
        • Art 80, 81: Courts
  • Basic Law..
    • Our “source of law”:
      • Art 8: “The laws previously in force in Hong Kong, … shall be maintained…”
        • This means laws that were applicable before 1997 continues to apply in Hong Kong
      • (See also Art 18)
  • Structure of Courts in Hong Kong Court of Final Appeal Court of Appeal Court of First Instance High Court District Court Magistrates’ Court Labour Tribunal Obscene Articles Tribunal Small Claims Tribunal Lands Tribunal Coroner’s Court Higher
  • 香港法院結構 終審法院 上訴法庭 原訴法庭 高等法院 區域法院 裁判法院 土地審裁處 淫褻物品審裁處 小額錢債審裁處 勞資審裁處 死因裁判法庭 Higher
  • “Common Law”
    • A very “overloaded” term, many meanings:
    • 1. Common Law vs Civil Law
      • As a system of law
    • 2. Common Law vs Legislation
      • “ Judge made law” vs “laws passed in the legislature”
    • 3. Common Law vs Equity
      • You can ignore this unless you (want to) study law…
  • Features of Common Law Systems
    • Relies on precedents – Lower courts are “bound” by decisions of higher courts
    • Many laws are based on precedents instead of legislation
      • eg. Contract law in Hong Kong is mainly based on cases. If you look at the legislation you will find very little law relating to general contracts
  • Common Law Countries
    • Examples of Common Law countries:
      • Hong Kong (obvious), United Kingdom, Canada, Australia, New Zealand, Singapore, India…
      • Basically almost all places that had been once under British rule
      • USA…?
    • Note that precedents of other countries can be referred to in Hong Kong
      • In particular, many UK cases still represent the law in HK.
    • Also note that most movies or shows on TV reflect the legal system in USA, which may be quite different in Hong Kong.
  • What is “the law”?
    • We can look at:
    • 1. Basic Law
    • 2. Legislation
    • 3. Common Law: cases of HK and UK
    • 4. Common Law from other countries
    • 5. Common sense and Imagination
    • Important note: the law is often unclear! (therefore we have #5)
    • Remember all laws are subject to interpretation by the courts! Sometimes even “clear” provisions in legislation can be interpreted in surprising ways!
    • In a sense, nobody really knows “what the law is”...
  • Today’s Presentation
    • Introduction to Law
    • Legal System of Hong Kong
    • Brief Introduction of Civil and Criminal Law
    • Contract Law
    • Some Aspects of Property Law
    • Patent Law
    • Copyright Law
    • Software Licenses
    • Miscellaneous
  • Civil vs Criminal Law
    • Civil Law
    • Dispute Resolution
    • Litigation between normal citizens
    • Proof “on the balance of probabilities”
    • Possible outcomes:
      • Damages (paid to plaintiff)
      • Injunction
    • Criminal Law
    • Punishment
    • Procecuted by government
    • Proof “beyond reasonable doubt”
    • Possible outcomes:
      • Fines (paid to govt)
      • Imprisonment
    Note that the same events can lead to both civil and criminal actions simultaneously
  • Example
    • Scenario: Candy hits and injures Badguy intentionally. Badguy pays $1,000,000 for medical expenses (eg. Hospital treatment).
    • Civil action: Badguy sues Candy for “Trespass Against the Person”. Candy compensates Badguy’s medical expenses
    • Criminal action: Police / HK Govt prosecutes Candy for “ assault occasioning actual bodily harm ”, maximum imprisonment for 3 years. (Offences Against the Person Ordinance, section 39)
    • Note that the requirements for the civil action and for the criminal action can be very different.
  • Today’s Presentation
    • Introduction to Law
    • Legal System of Hong Kong
    • Brief Introduction of Civil and Criminal Law
    • Contract Law
    • Some Aspects of Property Law
    • Patent Law
    • Copyright Law
    • Software Licenses
    • Miscellaneous
  • About Contract Law
    • We want to know whether there is a contract, and what are the contents of the contract.
    • Question: do contracts have to be written on paper (i.e. 「白紙黑字」 )?
    • Question: If I tell you “I’ll give you my notebook for free”, you say “sure”. Is there are contract?
    • Question: are advertisements contracts?
    • Question: what happens when you breach a contract?
  • General Principles of Contract Law
    • A contract must have:
      • Offer
      • Acceptance
      • Consideration
      • Intention to legal relations
    • Contents of the contract:
      • The court will give effect to the “intention of the parties” (freedom to contract)
      • Implied terms: eg. Sales of Goods – fitness for purpose, merchantable quality, etc.
    • Remedies:
      • Damages, Recission, Performance
  • Today’s Presentation
    • Introduction to Law
    • Legal System of Hong Kong
    • Brief Introduction of Civil and Criminal Law
    • Contract Law
    • Some Aspects of Property Law
    • Patent Law
    • Copyright Law
    • Software Licenses
    • Miscellaneous
  • Contracts, Property, Licences
    • Contract : between two persons
    • Property : a “bundle of rights” enforceable against the whole world
    • Licenses : (in general) somebody else owns the property but allows you to use it
  • Example
    • Little cx offers to sell Kay his comic book for $1000. Kay agrees. Whoops, Kay forgot to bring money. Little cx says, “nevermind, the book is now yours, pay me back later”. Just after Kay gets the book, a thief snatches the book and runs away. Some days later, Kelly found the book on the floor and picks it up.
    • What then?
    • Can cx get $1000 from Kelly? Can cx get the book from Kelly?
    • Can Kay get the book from Kelly?
  • Example (cont’d)
    • Contract : Kay still owes $1000 to cx. cx can sue Kay (probably in small claims court) if he doesn’t pay. cx cannot sue the thief (even if police finds him) to pay for the book because he has no contract with the thief.
    • Property : Kay still has property rights in the book. So he can get back the book from Kelly.
    • License : Kelly likes the book very much and wants to borrow it from Kay. She must ask Kay for permission, otherwise she may be liable for theft.
  • Property as bundle of rights
    • Normal usage of “property”:
      • The car is my property. The car is mine.
    • In Law:
      • I have “property rights” to possess, use, sell, destroy (etc.) my car
    • What is the difference?
    • How about if the car is rented?
      • The “car owner” has right to sell the car
      • I do not have the right to sell or destroy the car. I can only use it for driving.
      • So the rights can be “split up”
  • Licenses
    • Are Licenses revocable?
    • Example 1: Si lends Leo a book. (i.e. Si gives a license to Leo to use it). Can Si have it back at any time?
    • Example 2: Si lends Leo a book. Leo pays $100 per month rent. Can Si have it back at any time?
    • Example 3: Si lends Leo a room to live in. Leo pays $100 per month rent. Can Si have it back at any time?
  • Licenses
    • In general:
      • Bare Licenses can be revoked
      • Contractual Licenses cannot be revoked
      • In some cases where the licensee has relied on some promise that the license will not be revoked, then even “bare licenses” cannot be revoked (proprietary estoppel)
  • Today’s Presentation
    • Introduction to Law
    • Legal System of Hong Kong
    • Brief Introduction of Civil and Criminal Law
    • Contract Law
    • Some Aspects of Property Law
    • Patent Law
    • Copyright Law
    • Software Licenses
    • Miscellaneous
  • Patents
    • Patents generally cover ideas. If an idea is patented, one has to seek the patent owner to use that idea, even if he came up with the idea independently
    • General requirements of patents
      • Susceptible of industrial application
      • Is new / not obvious
      • Involves an inventive step
      • Excluded matters (discussed below)
  • Patents
    • “ Software patents”?
      • Patent Ordinance s93(2) basically says that computer programs and algorithms are not patentable.
      • However, s93(3) also says that they are not patentable only if the patent relates to the subject matters “as such”.
        • “ but if some practical (i.e. technical) effect is achieved by the computer or machine operating according to the instructions contained in the program, and such effect is novel and inventive (i.e. not obvious), a claim directed to that practical effect will be patentable, notwithstanding it is defined by that computer program.” - Merrill Lynch Inc's Application
    • Software Patents in other parts of the world:
      • Europe is/was considering to allow “software patents”
      • USA obviously allows software patents (eg. RSA, LZW)
  • Patents
    • Formality
      • Requires application to the Registrar of Patents
      • $$ is required
      • Need to disclose details of the invention
      • (Generally, you won’t need one for personal uses…)
    • Duration
      • 20 years for standard patents
      • 8 years for short term patents
  • Today’s Presentation
    • Introduction to Law
    • Legal System of Hong Kong
    • Brief Introduction of Civil and Criminal Law
    • Contract Law
    • Some Aspects of Property Law
    • Patent Law
    • Copyright Law
    • Software Licenses
    • Miscellaneous
  • Copyright Law
    • “ Copyright” is a bundle of rights, for example, the right to:
      • Copy, issue copies, rent copies, make available to public, make “adaptions”.
    • “ Copyright” also includes “moral” rights, e.g. the right to be recognized as author.
      • NOT available for computer programs! 
  • Basic requirements
    • The work has to be “original” i.e. not copied elsewhere.
    • No requirement of work to be creative/useful/etc
    • Copyright protects the “expression” of ideas, but not the ideas
    • Short phrases/words not protected by copyright (but may be protected by Trademarks etc)
    • No formalities needed (eg. © Copyright Sidney Fong 2006) But note that some countries requires this.
  • What can be under Copyright?
    • Copyright subsists in:
      • 1. Literary, dramatic and musical, artistic works
      • 2. Sound recordings, films, broadcasts or cable programmes
      • 3. Typographical arrangement of published editions
    • Computer Programs are classified under “literary” works. Also, “compilation of data” (eg. names of all HKOI trainees) are “literary” works.
    • Unless there is an explicit agreement, an employer owns the copyright of works by employees
  • Copyright Duration
    • Literary, dramatic, musical and artistic work: author’s life plus 50 years
    • Sound Recording: 50 years from the end of the calendar year in which it is made, or if during that period it is released, 50 years from the end of the calendar year in which it is released
    • Films: 50 years from the end of the calendar year in which the death occurs of the last to die of the material persons
    • Broadcasts and Cable Programmes: 50 years from first transmission
    • Typographical arrangements of published editions: 25 years from first publication
  • Primary Infringement
    • Copying
    • Issuing copies to public
    • Renting copies (for computer programs or sound recordings)
    • Making available copies to the public
    • Performing, showing or playing the work in public
    • Broadcasting
    • Making an adaptation
    • (*without authorization by copyright owner)
  • Secondary Infringement
    • Importing/exporting infringing copy not for domestic use
    • Possessing or dealing with infringing copy for business purposes
    • Providing means for making infringing copies
    • Permitting use of premises for infringing performance
    • Providing apparatus for infringing performance
  • Exceptions
    • Fair dealing:
      • Research and private study
      • Criticism, review and news reporting
    • Accidental inclusion
    • Educational use
    • Libraries
    • Back up copy, adaptation of computer programs (necessarily)
    • Fonts
    • Etc. etc.
  • Civil Remedies
    • The copyright owner (or exclusive licensee) can sue infringers for the following:
    • Damages - $
    • Injunctions -
      • Order for delivery up
      • Order to dispose infringing copy
      • Etc.
  • Criminal Offences
    • The exact criminal offenses are quite complicated, I will try to generalize the most common ones into one page:
    • Infringements in connection with trade or business
    • Import/export not for private/domestic use
    • “ distributes (otherwise than for the purpose of, in the course of, or in connection with, any trade or business) to such an extent as to affect prejudicially the owner of the copyright, an infringing copy of a copyright work. “
    • Penalties: up to $50000 and 4 years imprisonment.
  • Miscellaneous
    • More on Copyright can be found in Copyright Ordinance (Cap 528)
    • Note that some criminal provisions are suspended by “ The Copyright (Suspension of Amendments) Ordinance“.
  • Copyright on the Internet
    • Linking to other sites? ( Shetland Times Limited v Wills )
  • Today’s Presentation
    • Introduction to Law
    • Legal System of Hong Kong
    • Brief Introduction of Civil and Criminal Law
    • Contract Law
    • Some Aspects of Property Law
    • Patent Law
    • Copyright Law
    • Software Licenses
    • Miscellaneous
  • Types of OSS Licenses
    • In the open source world, there are the following types of licenses:
      • “Proprietary Licenses” (i.e. not open source)
      • Academic licenses
      • Reciprocal licenses
  • Open Source / Free Software
    • Open Source Definition
      • In essence: Allows free redistribution, provides source code, allows derived works
    • Free Software Definition
      • The freedom to run the program
      • The freedom to study how the program works, and adapt it to your needs
      • The freedom to redistribute copies
      • The freedom to improve the program, and release your improvements to the public
  • Academic Licenses
    • Basically, most academic licenses say “you can do whatever you want” (including to use it in proprietary software)
    • Most include disclaimers
    • Academic Licenses include BSD, MIT, Apache License, Artistic License etc.
    • Note that the BSD license a few years ago had an “advertising clause”.
  • Reciprocal Licenses
    • Basically, the idea is “if you modify the code or create derivative works, you must release them in the same license”
    • Examples: GPL, LGPL, MPL, CPL
    • GPL is proposing a version 3! (I have not looked at it yet)
  • Moliu “statistics” on OSS Licenses
    • Linux – GPL
    • Mozilla (includes Firefox, Thunderbird) – MPL/GPL/LGPL
    • GNOME – LGPL/GPL
    • Qt/KDE – GPL
    • Apache – Apache License
  • GPL
    • The (L)GPL is probably the most complicated (yet most commonly used) OSS license.
    • Terms…
    • Problems of GPL
      • “Derivative works” too broad?
      • “Mere aggregation”?
      • “Linking”?
  • Today’s Presentation
    • Introduction to Law
    • Legal System of Hong Kong
    • Brief Introduction of Civil and Criminal Law
    • Contract Law
    • Some Aspects of Property Law
    • Patent Law
    • Copyright Law
    • Software Licenses
    • Miscellaneous
  • You should have some idea on this now…
    • Are EULA’s valid? Are shrink-wrap licenses valid?
    • Legality of “BT” and other file sharing programs?
    • Legal Basis of Open Source Software Licenses
    • Can Open Source Licenses be revoked?
  • How to find the sources yourself
    • Law:
      • Judiciary website http://www.judiciary.gov.hk
        • Contains cases. (you can find the “BT” case there)
      • BLISS http://www.legislation.gov.hk/
        • Contains legislation
      • HKLII http://www.hklii.org
        • Contains legislation and some cases
    • Intellectual Property (adapted from Alan Tam’s presentation last year)
      • Intellectual Property Department, HKSAR ( http://www.info.gov.hk/ipd )
      • Customs & Excise Department, HKSAR ( http://www.info.gov.hk/customs )
      • World Intellectual Property Organization ( http://www.wipo.org )
      • World Trade Organization ( http://www.wto.org )
  • Issues for discussion
    • Whether Intellectual Property laws (eg. Copyright, Patents, etc) are useful to society? Or are they just allow corporations (eg. Microsoft? MPAA? RIAA?) to gain a lot of money?
    • Anything else?
  • Today’s Presentation
    • Introduction to Law
    • Legal System of Hong Kong
    • Brief Introduction of Civil and Criminal Law
    • Contract Law
    • Some Aspects of Property Law
    • Patent Law
    • Copyright Law
    • Software Licenses
    • Miscellaneous