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.