Proposals from Berlin and Paris – Intermediary Liability in European Copyright Law

Two very different proposals on copyright policy – one a privately drafted document, the other a governmental report – are published in this edition of JIPITEC. There is an interesting point of intersection between them because they both consider the difficult question of the liability of online intermediaries for users’ infringements. The first document is “The Berlin Gedankenexperiment on the Restructuring of Copyright Law and Authors Rights”. This is a wide-ranging proposal for a complete recasting of the legal system that promotes the production of, and controls the use of, creative goods. The second policy document has a more limited focus. The French High Council for Literary and Artistic Property (“CSPLA”)’s Mission to Link Directives 2000/31 and 2001/29 – Report and Proposals (“Mission Report”) aims to provide a persuasive intervention in current policy discussions at European Union level concerning the liability or, more appropriately, the non-liability, of online intermediaries for copyright infringement. In this brief introduction, I outline the scope of both proposals and reflect briefly on their recommendations.

Bittorent Loses Again: A Recent Lithuanian BitTorrent Case and What It Means for the Construction of the E-commerce Directive

This article first discusses a recent Lithuanian BitTorrent case, Linkomanija, with its shortcomings and perspectives. It then compares the outcomes of the Lithuanian case with recent court practice in Scandinavian countries (the Swedish Pirate Bay and Finnish Finreactor cases). Finally, it poses some questions as to whether BitTorrent sites should be qualified as hosting services under Article 14 of the EU E-commerce Directive (2000/31/EC) and whether the application of the limited liability standard, as developed by the Court of Justice of the European Union, would be reasonable for BitTorrent file-sharing services in general.

Virtues and Perils of Anonymity: Should Intermediaries Bear the Burden?

On October 10, 2013, the Chamber of the European Court of Human Rights (ECtHR) handed down a judgment (Delfi v. Estonia) condoning Estonia for a law which, as interpreted, held a news portal liable for the defamatory comments of its users. Amongst the considerations that led the Court to find no violation of freedom of expression in this particular case were, above all, the inadequacy of the automatic screening system adopted by the website and the users’ option to post their comments anonymously (i.e. without need for prior registration via email), which in the Court’s view rendered the protection conferred to the injured party via direct legal action against the authors of the comments ineffective. Drawing on the implications of this (not yet final) ruling, this paper discusses a few questions that the tension between the risk of wrongful use of information and the right to anonymity generates for the development of Internet communication, and examines the role that intermediary liability legislation can play to manage this tension.

Use of flowable composite as intermediary layer in non-carious cervical lesions restored with composite resin: 48-month follow-up

PURPOSE: In this case report, the clinical performance of a microhybrid resin composite placed with or without a flowable resin composite was compared, over a 48-month period. CASE DESCRIPTION: The patient of this case report presented 2 pairs of equivalent cervical abfraction lesions, under occlusion. Four restorations were placed in teeth 34, 35, 44 and 45. The restorations were divided into groups (Single Bond + Filtek-Flow + Filtek Z250 or Single Bond + Filtek Z250) and the materials were applied according to the manufactures instructions. Two previously calibrated operators placed the restorations and two other independent examiners evaluated the restorations at baseline and after 48 months, according to the USPHS criteria and modified criteria for color match. CONCLUSION: After 48 months of evaluation the lesions restored with Filtek-Flow as a liner under Filtek Z250 did not show better clinical performance than the restorations without Filtek-Flow. All restorations showed a trend toward dark yellowing after 48 months.

Abuse liability of intra-nasal midazolam in inhaled-cocaine abusers

Intra-nasally instilled benzodiazepines have been proposed for acute anxiety episodes. However, routes with faster absorption may increase abuse liability. This study compared abuse liability of intra-nasal midazolam between subjects with a history of intra-nasal drug abuse and non-psychiatric subjects on a single-blind randomized controlled trial. Thirty-one inhaled-cocaine abusers and 34 normal volunteers received either 1 mg intra-nasal midazolam or active placebo. Visual analogue scales assessing desire to repeat the experience (ER) and Experience Liking (EL) assessed abuse liability. Profile analysis for repeated measures showed a significant effect of time over ER (F-[5,F-57]=3.311, p=0.011) and EL (F-[5,F-57]=3.947, p=0.004), diagnostic group (cocaine abusers scoring higher on both - F-[5,F-57]=5.229, p=0.026; F-[5,F-57]=4.946, p=0.030), regardless of the administered substance. It is concluded that the intra-nasal route does not seem to pose risks for non-psychiatric individuals, but it may represent a risk in itself for subjects with a history of drug abuse through this path. (C) 2008 Elsevier B.V. and ECNP. All rights reserved.

Criminal Liability of Organizations, Corporations, Legal Persons, and Similar Entities on Law of Portuguese Cybercrime: A Brief Discussion on the Issue of Crimes of “False Information,” the “Damage on Other Programs or Computer Data,” the “Computer-Software Sabotage,” the “Illegitimate Access,” the “Unlawful Interception,” and “Illegitimate Reproduction of the Protected Program”

Abstract: in Portugal, and in much of the legal systems of Europe, «legal persons» are likely to be criminally responsibilities also for cybercrimes. Like for example the following crimes: «false information»; «damage on other programs or computer data»; «computer-software sabotage»; «illegitimate access»; «unlawful interception» and «illegitimate reproduction of protected program». However, in Portugal, have many exceptions. Exceptions to the «question of criminal liability» of «legal persons». Some «legal persons» can not be blamed for cybercrime. The legislature did not leave! These «legal persons» are v.g. the following («public entities»): legal persons under public law, which include the public business entities; entities utilities, regardless of ownership; or other legal persons exercising public powers. In other words, and again as an example, a Portuguese public university or a private concessionaire of a public service in Portugal, can not commit (in Portugal) any one of cybercrime pointed. Fair? Unfair. All laws should provide that all legal persons can commit cybercrimes. PS: resumo do artigo em inglês.

«Corruption» and social and economic criminal law: criminology, criminal policy, political science and law&economics - a new idea about criminal liability of legal entities

Abstract: If we think there is a significant number of legal offshore in the globalized world, then there is not even a global consensus about what «corruption» is. The «illegal corruption» in a country may be legal in another. Moreover, the great global corruption is above the law or above democratic States. And not all democratic States are «Rule of Law». Therefore, the solution is global earlier in time and space law, democratic, free and true law. While the human being does not reach a consensus of what «corruption» really is, the discussion will not go further than a caricature. One of the other problems about «corruption» is that it is very difficult to establish the imputation of crimes, including «corruption» (v.g. Portugal) on some «companies», corporations. We have a juridical problem in the composition of the art. 11. of the Portuguese Penal Code.

Institutional Development for Good Governance: the role of intermediary NGOs in Pará state, Amazonia

The paper analyses the roles of intermediary NGOs for linkages between government and rural communities in carrying out socio-environmental development programs as a mean of institutional development for good governance. In particular, the paper focuses on the Proambiente program that was carried out in Pará State, Amazonia, Brazil. This program was the first experience of a socio-environmental development program in Brazilian Amazonia that took into account local communities' demands to link environmental conservation and small-scale family-based rural production. Methodologically, the research was based on qualitative analysis and used semi-structured interviews for data collection. The paper shows that NGOs as intermediaries between government and rural communities is a significant mechanism to promote the strengthening of the power of local communities, to create bridges between federal government and local communities; and to stimulate participatory processes by engaging rural communities' culture and knowledge in socio-environmental development program as Proambiente.

Knowledge repository framework for crowdsourcing innovation intermediary: a proposal

A crowdsourcing innovation intermediary performs mediation activities between companies that have a problem to solve or that seek a business opportunity, and a group of people motivated to present ideas based on their knowledge, experience and wisdom, taking advantage of technology sharing and collaboration emerging from Web2.0. As far as we know, most of the present intermediaries don´t have, yet, an integrated vision that combines the creation of value through community development, brokering and technology transfer. In this paper we present a proposal of a knowledge repository framework for crowdsourcing innovation that enables effective support and integration of the activities developed in the process of value creation (community building, brokering and technology transfer), modeled using ontology engineering methods.

Hereditary Neuropathy with Liability to Pressure Palsy Presenting with Hand Drop in a Young Child

Hereditary neuropathy with liability to pressure palsy (HNPP) results from the deletion of the PMP22 gene in chromosome 17p11.2. Clinically, it presents with painless pressure palsies, typically in the 2nd and 3rd decades of life, being a rare entity in childhood. We present the case study of a six-year-old male child who presented with left hand drop that he kept for over four weeks. Electrophysiological studies suggested HNPP and genetic studies confirmed it. With this paper, we pretend to create awareness to this entity as a diagnosis to be considered in a child with painless monoparesis and to emphasize the importance of electrophysiological studies in the diagnosis.

Multi-agent contracting with countervailing incentives and limited liability

We consider a principal who deals with a privately informed agent protected by limited liability in a correlated information setting. The agent's technology is such that the fixed cost declines with the marginal cost (the type), so that countervailing incentives may arise. We show that, with high liability, the first-best outcome can be effected for any type if (1) the fixed cost is non-concave in type, under the contract that yields the smallest feasible loss to the agent; (2) the fixed cost is not very concave in type, under the contract that yields the maximum sustainable loss to the agent. We further show that, with low liability, the first-best outcome is still implemented for a non-degenerate range of types if the fixed cost is less concave in type than some given threshold, which tightens as the liability reduces. The optimal contract entails pooling otherwise.

Limited liability and mechanism design in procurement

In the presence of cost uncertainty, limited liability introduces the possibility of default in procurement with its associated bank-ruptcy costs. When financial soundness is not perfectly observable, we show that incentive compatibility implies that financially less sound contractors are selected with higher probability in any feasible mechanism. Informational rents are associated with unsound financial situations. By selecting the financially weakest contractor, stronger price competition (auctions) may not only increase the probability of default but also expected rents. Thus, weak conditions are suffcient for auctions to be suboptimal. In particular, we show that pooling firms with higher assets may reduce the cost of procurement even when default is costless for the sponsor.