Editorial
Paul Maharg & Abhilash
Nair
Welcome
to the second 2014 issue of the journal.
In this general issue we have a range of articles on key issues
at the
interface of law and technology.
Avramenko and Tamadon-Nejad explore the theme of shared video
content on
the Internet, and in particular the
problems of
IPR. Their conceptual framework, based in
part upon the borderless, boundless ‘generativity’
of the internet, follows Gadamer’s approach to hermeneutic
inquiry, and notes
that the ‘challenge for cyberlaw is to establish what can and
what cannot be
readily copied and disseminated’.
Lodder
takes a different approach to the problems of localism and globalism,
which
create ever more complex social, cultural and legal issues. His paper discusses the intersections of
contracting, security, privacy and advertising, and he notes the effect
that
apps have on a traditional model of a jurisdiction and its legal
infrastructures. He takes the example of
three popular apps – the messaging forum WhatsApp, the music app
Pandora and
the dating app Grindr – and explores the effects of ‘always
on’ connectivity,
which includes the constant proximity of apps via mobile and smart
devices, and
the easy portability of these devices across jurisdictional boundaries. This apparent ease, he argues, brings with it
major problems – he claims that ‘global norms are needed to
protect
and facilitate ‘smart users’, with all their personal and
valuable
information’.
A
similar concern for norms and standards is present in the article by
Gleeson
and Walden, which focuses on EU initiatives on cloud standards,
focusing in
particular on the work of ETSI (European Telecommunications Standards
Institute), ENISA (European Union Agency for Network and Information
Security)
and other Commission working groups.
They write as members of the Cloud Legal Projects in the Centre
for
Commercial Law Studies at Queen Mary, University of London, and their
concern
is that the ‘alphabet soup’ of standards (to cite their use
of Baudoin’s
phrase) is creating unnecessary and unhelpful regulatory structures for
cloud
standards. They examine the definition
of standards, the proliferation of standards-setting bodies and
governmental
and international organisations, and the process of adoption of cloud
standards,
amongst other factors. They conclude
that quite apart from the development of technical standards, the
‘informational and evaluative standards will inevitably take
longer to emerge’.
Virtanen,
in his extensive comment on Innoweb v
Wegener, picks up a number of the themes emerging in the articles. The technology of the meta-search engine (as
opposed to that of the general search engines such as Google) which
lies at the
heart of the case provides a good illustration of the CJEU attempting
to grapple
with these themes – the ‘unfair extraction or
re-utilization for commercial
purposes’ discussed by Avramenko and Tamadon-Nejad, for instance,
and other IP
issues. Virtanen explores the debates
and possible arguments raised by the case, cautioning against
‘binary
distinctions’ between general or specific search engines on the
one hand, and
meta-search technologies on the other, observing that while these may
appear to
be useful in the abstract, they ‘can be oversimplifications in
individual
cases’. His words sum up one of the
key
issues for regulators in the field of technology, who must balance
rights
against technological innovation in the context of pre-determined legal
structures: technology is constantly protean, of its nature; law is
much less liquid. What matters is how we
deal with that
relationship, in individual cases such as this, as well as at the level
of standards,
regulation and policy.