What evidence do judges take into acount when they decide to block websites to prevent copyright infringement? Using case reports of s 97A CPDA cases in the UK, this paper shows a number of problems with judicial use of empirical evidnece especially as to whether blocking is effective.
A presentation discussing interplay with Patent Office proceedings, use of the pilot program, updates on domestic industry, and the latest on public interest. They also discussed best practices in preparing for ITC litigation.
Attorneys Sheila Swaroop and Jonathan Bachand hosted a webinar presenting Intellectual Property Enforcement at the International Trade Commission Confirmation.
Page copy:
Knobbe Practice Japan Webinar Series
Partners Irfan Lateef and Mauricio Uribe provided an overview of patent litigation in the United States. They provided insights and practical tips related to understanding patent litigation in the United States and developing effective litigation strategies, including phases, timelines and milestones, fees and costs, and legal remedies. The presentation was summarized in Japanese by IP Strategist, Kenny Masaki.
Partners Mauricio Uribe, Dan Altman and Jessica Achtsam gave a presentation on understanding the history and current state of the law involving willful infringement and enhanced damages under U.S. Patent Law. They provided insights and practical tips related to the evolving standard of care related to potential assertions of patent infringement.
Speakers: Mauricio Uribe, Dan Altman and Jessica Achtsam
California privacy law presentation, Darren Chaker, offers easy to follow law firm presentation concerning privacy rights impacting employer and employee relationship.
A presentation discussing interplay with Patent Office proceedings, use of the pilot program, updates on domestic industry, and the latest on public interest. They also discussed best practices in preparing for ITC litigation.
Attorneys Sheila Swaroop and Jonathan Bachand hosted a webinar presenting Intellectual Property Enforcement at the International Trade Commission Confirmation.
Page copy:
Knobbe Practice Japan Webinar Series
Partners Irfan Lateef and Mauricio Uribe provided an overview of patent litigation in the United States. They provided insights and practical tips related to understanding patent litigation in the United States and developing effective litigation strategies, including phases, timelines and milestones, fees and costs, and legal remedies. The presentation was summarized in Japanese by IP Strategist, Kenny Masaki.
Partners Mauricio Uribe, Dan Altman and Jessica Achtsam gave a presentation on understanding the history and current state of the law involving willful infringement and enhanced damages under U.S. Patent Law. They provided insights and practical tips related to the evolving standard of care related to potential assertions of patent infringement.
Speakers: Mauricio Uribe, Dan Altman and Jessica Achtsam
California privacy law presentation, Darren Chaker, offers easy to follow law firm presentation concerning privacy rights impacting employer and employee relationship.
At a recent in-house CLE event, John Sganga, Partner and the firm's Litigation Practice Group Chair, presented an intellectual property year in review discussing important cases throughout 2015.
Partners Jon Gurka and Mauricio Uribe provided an overview of patent litigation in the United States. They provided insights and practical tips related to understanding patent litigation in the United States and developing effective litigation strategies, including phases, timelines and milestones, fees and costs, and legal remedies.
Speakers: Jon Gurka, Mauricio Uribe
Knobbe Practice Japan Webinar Series
Partners Mauricio Uribe, Dan Altman and David Schmidt, Ph.D., gave a presentation focused on understanding the history and current state of the law involving willful infringement and enhanced damages under U.S. Patent Law. They provided insights and practical tips related to the evolving standard of care related to potential assertions of patent infringement. The presentation was summarized in Japanese by IP Strategist, Kenny Masaki.
Speakers: Mauricio Uribe, Dan Altman, David Schmidt, Ph.D., Kenny Masaki
Partners Mauricio Uribe and Dan Altman presented a webinar focused on Strategic Considerations Under Section 103 – Strategic Claim Drafting and Secondary Considerations
As competition and innovation in the private space race increases, so too will the importance of patent protection. Partner Tom Cowan gave an informative presentation that examines basic patent issues that stakeholders should be aware of, including ownership of space-related inventions, whether you can patent those inventions, how to mitigate the risk of infringing others’ space patents, and how the U.S. patent law operates in space.
The Federal Circuit Review is a monthly newsletter featuring the latest case summaries handed down from the U.S. Court of Appeals for the Federal Circuit.
In this Issue:
• Judgment of Infringement Entered as Sanction
• Patent Exhaustion Does Not Apply to Harvested Seeds
• Judges Disagree on § 101 Standards
• Litigation Is Not a Domestic Industry
The Federal Circuit Review is a monthly newsletter featuring the latest case summaries handed down from the U.S. Court of Appeals for the Federal Circuit.
In this Issue:
Smartphone War Update: Some of Apple’s Patents Survive Invalidity Challenge
• Sale by Foreign Supplier Invalidated Patent
• District Court Abused Discretion in Refusing to Keep Confidential Documents Secret
Presentation before the International Intellectual Property Society
Conrad Wong
Attorney-Advisor, China Team
Office of Policy and International Affairs
United States Patent and Trademark Office USPTO
May 16, 2019
Electronic Discovery - GODWIN PC - What you Need to KnowEd Sothcott
E-Discovery is becoming an increasing important part of the legal process. The effect of social media, e-mail and other electronic correspondence in lawsuits including civil and criminal matters and even divorce has become dramatic. What do lawyers need to do to preserve this evidence? What can happen if you don't?
SOPA, OPEN, ACTA and parallel copyright reforms in Europe, The right way to t...beamatinet
Conference Jan. 23 2012, Stanford Law School on SOPA, OPEN, ACTA and parallel copyright reforms in Europe, The right way to tackle online infringement?
(by @beamartinet)
A year at ICANN: The users' perspective. Gareth Dickson, Fordham IP Conferenc...Gareth Dickson
Presentation on ICANN at the 23rd Annual Fordham IP Conference. The slides cover rights protection mechanisms (RPMs), .sucks, UDRP, URS and registry / registrar intermediary liability, as well as cases in the UK (Vertical Leisure v. Poleplus, BT v. One In A Million), Germany (Universal Music v. Key-Systems) and France (AFNIC/EuroDNS v. Francelot; AFNIC/EuroDNS v. Air France), the GAC sub-working group geonames proposal and developments in Data Retention.
At a recent in-house CLE event, John Sganga, Partner and the firm's Litigation Practice Group Chair, presented an intellectual property year in review discussing important cases throughout 2015.
Partners Jon Gurka and Mauricio Uribe provided an overview of patent litigation in the United States. They provided insights and practical tips related to understanding patent litigation in the United States and developing effective litigation strategies, including phases, timelines and milestones, fees and costs, and legal remedies.
Speakers: Jon Gurka, Mauricio Uribe
Knobbe Practice Japan Webinar Series
Partners Mauricio Uribe, Dan Altman and David Schmidt, Ph.D., gave a presentation focused on understanding the history and current state of the law involving willful infringement and enhanced damages under U.S. Patent Law. They provided insights and practical tips related to the evolving standard of care related to potential assertions of patent infringement. The presentation was summarized in Japanese by IP Strategist, Kenny Masaki.
Speakers: Mauricio Uribe, Dan Altman, David Schmidt, Ph.D., Kenny Masaki
Partners Mauricio Uribe and Dan Altman presented a webinar focused on Strategic Considerations Under Section 103 – Strategic Claim Drafting and Secondary Considerations
As competition and innovation in the private space race increases, so too will the importance of patent protection. Partner Tom Cowan gave an informative presentation that examines basic patent issues that stakeholders should be aware of, including ownership of space-related inventions, whether you can patent those inventions, how to mitigate the risk of infringing others’ space patents, and how the U.S. patent law operates in space.
The Federal Circuit Review is a monthly newsletter featuring the latest case summaries handed down from the U.S. Court of Appeals for the Federal Circuit.
In this Issue:
• Judgment of Infringement Entered as Sanction
• Patent Exhaustion Does Not Apply to Harvested Seeds
• Judges Disagree on § 101 Standards
• Litigation Is Not a Domestic Industry
The Federal Circuit Review is a monthly newsletter featuring the latest case summaries handed down from the U.S. Court of Appeals for the Federal Circuit.
In this Issue:
Smartphone War Update: Some of Apple’s Patents Survive Invalidity Challenge
• Sale by Foreign Supplier Invalidated Patent
• District Court Abused Discretion in Refusing to Keep Confidential Documents Secret
Presentation before the International Intellectual Property Society
Conrad Wong
Attorney-Advisor, China Team
Office of Policy and International Affairs
United States Patent and Trademark Office USPTO
May 16, 2019
Electronic Discovery - GODWIN PC - What you Need to KnowEd Sothcott
E-Discovery is becoming an increasing important part of the legal process. The effect of social media, e-mail and other electronic correspondence in lawsuits including civil and criminal matters and even divorce has become dramatic. What do lawyers need to do to preserve this evidence? What can happen if you don't?
SOPA, OPEN, ACTA and parallel copyright reforms in Europe, The right way to t...beamatinet
Conference Jan. 23 2012, Stanford Law School on SOPA, OPEN, ACTA and parallel copyright reforms in Europe, The right way to tackle online infringement?
(by @beamartinet)
A year at ICANN: The users' perspective. Gareth Dickson, Fordham IP Conferenc...Gareth Dickson
Presentation on ICANN at the 23rd Annual Fordham IP Conference. The slides cover rights protection mechanisms (RPMs), .sucks, UDRP, URS and registry / registrar intermediary liability, as well as cases in the UK (Vertical Leisure v. Poleplus, BT v. One In A Million), Germany (Universal Music v. Key-Systems) and France (AFNIC/EuroDNS v. Francelot; AFNIC/EuroDNS v. Air France), the GAC sub-working group geonames proposal and developments in Data Retention.
Content blocking technology
The European Commission’s Digital Single Market Strategy aims to ease content blocking restrictions on paid content across Europe. However, when it comes to copyright infringement, the Strategy currently only encompasses “large-scale infringement.” In order to achieving a level-playing field, Internet blocking order has become the ‘weapon of choice’ for combatting music piracy in the digital world. But what are a content owner’s rights?
Website Blocking: effective remedy or infringement 'plaster'?Martin Husovec
Website blocking: effective remedy or infringement "plaster"?
The courts in various European jurisdictions disagree on the issue of blocking the websites by the access providers. Can intellectual property rights holders demand the website blocking as a remedy under current Union laws? And if so, does this remedy really help them in preventing any future infringements? Or is it just a "plaster" that stops the infringements for a while, but never solves the problem? In the article, these and related legal questions will be answered. Possible outcomes in the currently pending CJEU case UPC Telekabel Wien C-314/12 will be also discussed.
This presentation by Paul Crampton, Chief Justice of the Canadian Federal Court and Member of the Competition Tribunal, was made during the discussion “Judicial perspectives on competition law” held at the 16th meeting of the OECD Global Forum on Competition on 8 December 2017. More papers and presentations on the topic can be found out at oe.cd/jpcl.
Discussion of the main elements of the draft Data Protection Regulation: what difference will it make to industry practice and user rights to control their data?
CHAPTER GOALS AND OBJECTIVES2➢ What is the key fuJinElias52
CHAPTER GOALS AND
OBJECTIVES
2
➢ What is the key functional
area for IG impact?
➢ How does IG impact legal
functions in an organization?
➢ What are the Federal Rules
of Civil Procedure (FRCP)?
➢ How is e-discovery affected
by the FRCP?
➢ Outline the holding of
Zubulake v.
UBS
➢ Know the facts and how it
affects IG and e-discovery
➢ What are currently e-
discovery techniques
CHAPTER GOALS AND
OBJECTIVES…Continued
3
➢ What is the e-discovery
reference model?
➢ What is it used for?
➢ How does IG impact E-
Discovery?
➢ What is a record retention
policy?
➢ What are the benefits of a
record retention policy?
➢ What is predictive coding
➢ What case law impacted the
use of predictive coding?
➢ What is Technology Assisted
Review
➢ What are the 8 steps to
defensible disposition of
information?
Key Legal Processes Impacted
by IG
4
➢ E-Discovery
➢ Legal Hold Notification
➢ Defensible Disposition
➢ Use of new technology to comply with E-discovery
“Discovery”:
Pretrial procedure in a lawsuit in
which each party, through the law of
civil procedure, can obtain evidence
5
from the other party or parties by
means of discovery devices such as a
request for answers to Interrogatories,
Requests for Production of Documents,
Request for Admissions and
depositions. Discovery can be obtained
from non-parties using subpoenas.
When a discovery request is objected
to, the requesting party may seek the
assistance of the court by filing a
motion to compel discovery.
Wikipedia https://en.wikipedia.org/wiki/Discovery_(law)
E-DISCOVERY
The Federal Rules of Civil
Procedure govern civil proceedings in the
United States district courts. Their
purpose is "to secure the just, speedy,
and inexpensive determination of every
action and proceeding." Fed. R. Civ. P. 1.
The rules were first adopted by order of
the Supreme Court on December 20,
Congress on1937, transmitted to
January 3, 1938, and effective
September 16, 1938.
http://www.uscourts.gov/rules-policies/current-rules-
practice-procedure/federal-rules-civil-procedure
http://www.uscourts.gov/rules-policies/current-rules-
RELEVANT 2006 CHANGES TO THE
RULES OF CIVIL PROCEDURE
6
➢ Revisions applicable to
preservation of electronic records in
the litigation process
➢ Revisions applicable to the discovery
of electronic records in the litigation
process
Applicable to “ESI”- Any information that is
created or stored in electronic form
GOAL of 2006 revision:
✓ Recognize importance of ESI
✓ Respond to increasingly prohibitive costs
of document reviews
✓ Protection of privileged information
FRCP AMENDED 2006 ARE
APPLICABLE TO WHAT?
7
➢ Cases in Federal Court
➢ Civil Cases
➢ All types of e-documents stored on all types of storage
devices and communication devices
➢ All content on those devices including metadata
Consider the Impact of “Big Data”
8
➢ The average Employee creates roughly 1 gig ...
This summarises my full report on the role and responsibilities of online intermediaries re copyright infringement, June 2011. The conclusion is that the rush to graduated response solutions is premature given their drawbacks and that legal attention should first go to creating better legal frameworks for facilitating legal online content delivery.
Similar to UK copyright, online intermediaries and enforcement (20)
Global Governance of Generative AI: The Right Way ForwardLilian Edwards
AI regulation has been a hot topic since the rise of machine learning (ML) in the “big data” era, but generative AI or “foundation models” tools like ChatGPT, DALL-E 2(now 3) and CoPilot, ike ML before them, may create serious societal risks, including embedding and outputting bias; generating fake news, illegal or harmful content and inadvertent “hallucinations”; infringing existing laws relating eg to copyright and privacy; as well as environmental, competition and workplace concerns.
Many nations are now considering regulation to address these worries, and can draw on a number of basic and hybrid models of governance. This paper canvasses models of mandatory comprehensive legislation (where the EU AI Act hopes to place itself as a gold standard model); vertical mandatory legislation (where China has quietly taken a lead); adapting existing law (see the many copyright lawsuits underway); and voluntary “soft law” such as codes of ethics, “blueprints”, or industry guidelines. Both the domestic and international regulatory scenes for AI are also increasingly politicised as the rise of "AI safety" hype shows. Against this backdrop what choices should smaller countries such as the UK and Australia make? will international harmonisation lead to a race to the top as with the GDPR, or the bottom - rule by tech for tech?
How to regulate foundation models: can we do better than the EU AI Act?Lilian Edwards
This talk looks at
(a) the progress in regulating GPAI, renamed foundation models, by the EU AI Act as the EU parliament reaches a final text in May 2023
(b) what other laws exist to regulate generative AI meanwhile , notably copyright and the GDPR (latter dealt with in detail here https://www.slideshare.net/lilianed/can-chatgpt-be-compatible-with-the-gdpr-discuss )
Can ChatGPT be compatible with the GDPR? Discuss.Lilian Edwards
Since the Italian Garantie became the first DP authority in the world to even temporarily ban ChatGPT, debate has broken out as to whether generative AI models can comply with data protection laws, not just in the GDPR but around the world. The use of personal data for training requires a legal basis which is hard to find, special category data raises special problems (duh) and the model itself may be considered personal data due to inversion attacks and data leakage in outputs. Hallucination presents seemingly insuperable problems as to accuracy and rectification. Even though Open AI have temporarily satisfied the Garantie, further disputes still seem likely to eventually reach the courts. In this talk I will attempt to throw the entirety of DP law against the wall of large language and image models and even, jut for fun, raise the spectre of whether AI models can libel
Brief summary of how the law and legal practice may be affected by the ris of AI and autonomous cars, robots, etc - with a look at what harms or biases may result and how law and the market might try to solve those problems.
If the UK leaves the EU and EEA, will it be "adequate" for data transfers from the EU? Evidemnce suggests not, especially following the passing of the IP Act and the Tele2/Watson CJEU decision.
Updated vesion of my talk from 2013 as given in March 2016.
Coves the basics of why algorithmic governance may be problematic for users and society and suggests some legal remedies for these problems including competition law and defamation law.
Privacy, the Internet of Things and Smart Cities Lilian Edwards
Updated version of my paper, delivered Florence spring 2016. How can we obtain consent to sharing of personal data in a ubiquitous/ioT environment? is it possible given the requeirements of the GDPR and E-Privacy Directive?
From Privacy Impact Assessment to Social Impact Assessment: Preserving TRrus...Lilian Edwards
Short paper by Laurence Diver and myself on why the IoT is a special problem for privacy and how we can and should try to build such systems using Privacy by Design
Be careful what you wish for! How the GDPR even now it has been finalised may not solve the key problems of rthe tech community of what is personal data and what is anonymised/pseudonymous.
Can privacy survive the onslaught of online standard form "consent"; big data; and the Internet of Things? This paper wonders, and considers in particular the challenges of privacy and smart cities, which combine all three issues.
An iterative update on my ongoing work on revenge porn and how to deal with it. This talk analyses recent legislation and Google's recent decision to extend the "right to be forgotten" to revenge porn and argues both forgiving (restorative justice) and forgetting (RTBF) may be more useful remedies than the crimainal law alone for victims.
the music industry has many problems, and , some would say, enemies. THis talk looks at some of these and summarises the outcomes to date of the "war on piracy". It also however foresees a newer threat - the algorithmic curation and , perhaps, creation, of popular music. Do we need new music and human musicians any more?
A brief account of the current state of EU data protection laws accompanied by the suggestion they face almost insuperable challenge from the combination of the illusory nature of consent in most online contracts; the rise of big data as a "treasure hunt"; and the rise oambient environments for data colelction (the "Internet of Things") where design imperatives push towards an absence of opportunities for informed specific consent.
Police surveillance of social media - do you have a reasonable expectation of...Lilian Edwards
This paper (co-authored with lachlan Urquart of U of Nottingham) discusses if we have any expectations of privacy in content we make public on;line on social media - or can such content be data mined by the police at will? Should any kind of surveillance warrant be required of the police to use such material? has social jmedia become the new panopticon?
IT law : the middle kingdom between east and WestLilian Edwards
Privacy as a value is often as conflicting with and less important than other major societal goals such as nation state secureity and business profits. China as a socialist state emerging a a major digital economuic force may fall prey to both these assumptions. However the recent history in the West shows that over zealous national secueity infringing citizen privacy, as revealed in the recent Snowden PRISM/TEMPORA etc scandals, may backlash against business profits as well as reducing citizen trust in security.China can learn from these lessons as it expands its own privacy law especially in the IT/telecoms area.
What do we do with aproblem like revenge porn ?Lilian Edwards
Revenge porn is a vile and growing phenomenon. Thuis talk discusses its origins and gendered nature, what UK criminal law applies to stop it, and what other solutions there might be eg faster take down by socuial networks, the "right to be forgotten"
Algorithms are taking control of our information rich world. As the twin sibling to Big Data, increasingly they decide how society views us via constructed profiles (as criminals? as terrorists? as rich or poor consumers?); what we see as important, newsworthy, cool or profitable (eg Twitter trending topics, automated stock selling, Amazon recommendations, BBC website top news topics etc); and indeed what we see at all as algorithms are increasingly used to filter our illegal or undesirable content as tools of public policy. Algorithms are peceived by virtue of their automation as neutral, objective and fair, unlike human decision makers - yet evidence increasingly shows the opposite - eg a series of legal complaints assert that Google games its own search results to promote its own economic interests and demote those of competitors or annoyances; while in the defamation field, French, German and Italian courts have decided that algorithmically generated autosuggests in search can be libellous (eg "Bettina Wolf prostitute"). . This paper asks if any legal remedies do or should exist to *audit* proprietary algorithms , given their importance, and asks if one way forward might be via existing and future subject access rights to personal data in EU data protection law. The transformation of these rights as proposed in the draft Data Protection Regulation is not however hopeful.
Robots are no longer creatures of science fiction nor even restricted to industrial and warfare contexts but moving into sensitive domnestic worlds such as homes, hospitals and schools. How will laws about liability, privacy, evidence etc apply in this brave new world? How do we avoid creating kneejerk moral panic laws which may restrict the vaule of robotics to society?
Data protection and other systems of personal data protection around the globe are fundamentally based on principles of "notice and choice". These basic principles are now however assailed from three directions: the chimera of online consent; the lack of opportunity for consent in the world of ambient intelligence or ubiq; and the destruction of purpose specification by the rise of Big Data. This paper connects the dots between all three and considers if anything is left of DP after.
A "File Trademark" is a legal term referring to the registration of a unique symbol, logo, or name used to identify and distinguish products or services. This process provides legal protection, granting exclusive rights to the trademark owner, and helps prevent unauthorized use by competitors.
Visit Now: https://www.tumblr.com/trademark-quick/751620857551634432/ensure-legal-protection-file-your-trademark-with?source=share
NATURE, ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW.pptxanvithaav
These slides helps the student of international law to understand what is the nature of international law? and how international law was originated and developed?.
The slides was well structured along with the highlighted points for better understanding .
Car Accident Injury Do I Have a Case....Knowyourright
Every year, thousands of Minnesotans are injured in car accidents. These injuries can be severe – even life-changing. Under Minnesota law, you can pursue compensation through a personal injury lawsuit.
Responsibilities of the office bearers while registering multi-state cooperat...Finlaw Consultancy Pvt Ltd
Introduction-
The process of register multi-state cooperative society in India is governed by the Multi-State Co-operative Societies Act, 2002. This process requires the office bearers to undertake several crucial responsibilities to ensure compliance with legal and regulatory frameworks. The key office bearers typically include the President, Secretary, and Treasurer, along with other elected members of the managing committee. Their responsibilities encompass administrative, legal, and financial duties essential for the successful registration and operation of the society.
Matthew Professional CV experienced Government LiaisonMattGardner52
As an experienced Government Liaison, I have demonstrated expertise in Corporate Governance. My skill set includes senior-level management in Contract Management, Legal Support, and Diplomatic Relations. I have also gained proficiency as a Corporate Liaison, utilizing my strong background in accounting, finance, and legal, with a Bachelor's degree (B.A.) from California State University. My Administrative Skills further strengthen my ability to contribute to the growth and success of any organization.
How to Obtain Permanent Residency in the NetherlandsBridgeWest.eu
You can rely on our assistance if you are ready to apply for permanent residency. Find out more at: https://immigration-netherlands.com/obtain-a-permanent-residence-permit-in-the-netherlands/.
UK copyright, online intermediaries and enforcement
1. be careful what you
wish for?
UK (c ) intermediaries
and enforcement
Lilian Edwards
Professor of E-Governance
University of Strathclyde
Deputy director CREATe
2. Be careful what you wish for
• Digital Economy Act laid to rest – the fall of "three strikes"
• The rise of web blocking since 2011
• But esp with Cartier in 2014
• The future?
• See EU new Green Paper on copyright, Dec 2015
• "follow the money"
• Enrolling of payment intermediaries cf Wikileaks
• Of advertisers
• Of search engines
6. How the UK got here• S 97A Copyright Designs and Patents Act 1988 – 1st successful case –
Newzbin2 [2011] EWHC 2714 (Ch) (indexing and linking site)
• Court "shall have power to grant injunction vs a service provider where
that SP has actual knowledge of another person using their service to
infringe copyright"
• UK growth? Good test case; availability Cleanfeed; acceptance of copyright
industries narrative?
• Subsequent successful actions vs Pirate Bay, other P2P sites, unauthorised
sports streaming sites, Popcorn Time - Extended from copyright
infringement to trade marks ie blocking sites hosting counterfeits Cartier v
BSkyB etc [2014] EWHC 3354 (Ch)
8. Web blocking 1: 3 strikes 0
• Blocking so successful – according to content industry stats eg BPI
that UK DEA graduated response scheme officially abandoned 24 July
2014
• Policy question never asked in court: given rise of new business
models for creative industries, and rise of streaming rather than
downloading, do blocking orders make sense GIVEN side effects on
freedom of expression & potential for avoidance??
9. Policy in blocking orders : role of courts and
empirical evidence
• Why are we collecting empirical evidence in the copyright wars?
• To influence policy makers/legislators? (To oppose lobbyists for content
industries?) To influence users/voters?
• Judges? Actually make a great deal of law – esp in US, UK:
• Judicial review of the DEA (BT et al v Sec of State for BIS [2011]EWHC
1021 (Admin)
• Use and extension/routinisation of s 97A CDPA
• Striking down of the “private use” copyright exemption (BASCA et al v
Sec of State for BIS [2015] EWHC 1723 (Admin)
• (and cf privacy/DP and CJEU! 3 years of GDPR process while Google Spain,
DRIreland, Schrems, etc respond to Snowden..!)
• How should this affect our strategies in UK in working for “evidence
based policy”? Unclear.
• Obvious uses of empirical evidence in blocking order cases?
10. Evidence!! - 1
• DEA judicial review, 2011 (Mr Justice Parker, HC)
• (para 211) “In this case Parliament has addressed a major problem of social and economic
policy, where important and conflicting interests are in play… How these competing and
conflicting interests should be accommodated and balanced appears to me to be a classic
legislative task, and the court should be cautious indeed before striking down as
disproportionate the specific balance that Parliament has legislated”
• (para 213) why judicial deference?
• 11 files of evidence, but still not all of it!
• Constraints of court time to examine volume of material submitted
• Expert economists argued either side “with equal conviction and vigour”
• Fuller quoted “polycentric” disputes, “ hard enough for the legislature to seek to think through and to
weigh all the policy choices.. Well night impossible for a judge”
• (para 246) “not.. sufficient to show through economic evidence there are arguable errors”
“surprising if a skilled economist was not able to show such errors had been made”
• (para 249) copyright isn’t “exclusively economic” so a purely economic model isn’t all that
counts in deciding on proportionality anyway!
• (para 256) Parliament merely had to make “rational and justifiable assumption” re impact
of sanctions on infringers (70% desistance), relationship of infringement to legal sales,
avoidance etc
• -> DEA upheld
11. Evidence!! - 2
• Private copying case – BASCA v Sec of State for BIS, 2015, Mr Justice
Green
• (para 144) “The "economic" nature of the decision: The Defendant contended that since the
issue was "economic" it was by definition complex and this entitled the decision maker to a wide
margin of discretion. In my view ..It is an error to suggest that simply because the subject matter
of a decision, or the evidence used to justify it, is "economic" or "technical" that courts should
recoil in terror and move gratefully into judicial reticence mode by reference to "margin of
appreciation". If this were the judicial default position Courts would find it hard indeed to hold in
favour of Claimants in clinical negligence cases”
• (para 145”) “But this does not imply that the Courts will substitute their own view of the correct
decision for that of the decision maker..”
• (para 217) “the actual distinction between a merits review and a judicial review might be more
apparent than real.. The Judge does not "decide" the science; on the contrary the judge hears
expert evidence and then applies an approach which is akin to a public law rationality
challenge..The test is known as the "Bolam" test. It essentially accepts that there may well be a
number of different competing medical or scientific theories in a case and there may also be a
range of quite different yet reasonable views. In such cases the court only rejects a Defendant's
view if it is outwith that reasonable range.”
• (para 272) “that exercise [quantifying the harm not avoided by pricing-in] needed to be
conducted and it was not”
• Cf DEA - - > Case decides against validity of the exception (the statute) – but despite adopting
similar discretionary review framework.
13. S97A – 2 – Cartier 2014
• More empirical evidence available than in 2011; Helen Saunders v Ian Brown
• Mush evidence re costs to ISPS of extending blocking to TMs , inc possibilities of over blocking and
retaliatory DDOS ( largely dismissed)
• Much legal discussion re implementation of art8(3) IPRED for TM via general senior courts
injunctive power
• Para 26 – ev circumvention had become easier, cheaper and more user friendly
• "Efficacy" - paras 163 ff
• No need to show overall reduction in amount of infringement ie ev of
diversion is irrelevant!
• Cf Ev from The Hague CtA case ( Ziggo v BREIN) that reduction in visits to TPB
not = overall reduction in infringement ( Poort) ( para 168) – accepted by CtA
so no blocking order made
• CJEU Constantin cited to hold only necessary to show "seriously discouraging"
users of SITE TO BE BLOCKED ( para 174)
• "Proportionality" – 218ff - pix as killer evidence esp para 223
14. • "Admittedly one of the more
dramatic examples"
• UK had experienced 71% drop
in traffic to blocked websites
while ROW had increase of
27.8%
• No mention causality, hidden
traffic, diverted traffic, better
access to legal sources eg
streaming, YT, better
windowing of release
• Cf Hague/ Poort ev rubbished
in methodology : not re UK
users ( cf Italy! , only Dutch
torrents, self reporting
• Result ! Order made, albeit 2
yr limitation.
15. Conclusions?
• Deciding whether to make a blocking order is not primarily an economic
decision based on empirical ev, but a normative decision based on legal
argument
• Courts will defer to legislators on policy except when they don't
• Courts say they don't find economic evidence too complex but applicn of
methodological critique to empirical ev somewhat sporadic
• If all reviews are by one judge, value judgments on worth of empirical
evidence and which empirical ev is better will stay constant – Cf Arnold J
stance that "efficacy" does not mean either : overall infringement is
reduced OR some ( most?) users can't still get access
• Some expert evidence is more convincing than other expert evidence (
duh)
• Some foreign empirical evidence is too foreign to use except when it isn't
• Pictures tell a thousand words
Editor's Notes
The Judge does not "decide" the science; on the contrary the judge hears expert evidence and then applies an approach which is akin to a public law rationality challenge. The approach adopted in law to determine these cases has a strong public feel about it. The test is known as the "Bolam" test. It essentially accepts that there may well be a number of different competing medical or scientific theories in a case and there may also be a range of quite different yet reasonable views. In such cases the court only rejects a Defendant's view if it is outwith that reasonable range.
Judicial objectivity and deference to democratic legislature. UK common law courts are significant but more deferential to policymakers than US. Cf EU? V strong deference yet greater interpretative role.)
Evidence _ Pro – volume of infringement, inefficacy of take down?
Anti - volume of /possibility of avoidance? Lack of legal sites (streaming/downloading)?
No discussion of fact that Ev shown of commerciality of the content shared - to show that loss was injured by studios and that content was overwhelmingly in copyright not in public domain - also shows that indie ting downloading was almost entirely a product of lack of lawful paid access
Overwhelmingly recent commercial films out in cinemas hence IMDB links
But not for sale or pres streaming - hence lack of Amazon links?
Note in EMI 2013 ( 3 post PB P2P sites ) as well as DEA case and First Newzin 2 case , ev from Italian PB case re efficacy of blocking IS accepted WITHOUT its methodology being analysed as w Poort
And in Cartier, eg from Saunders ( ex Met Police, Hi Tech Crime Unit ) is accepted without demur ( so then the an rubbish the Dutch ev !)