Saturday, October 31, 2009

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DrTabrez Ahmad
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Friday, October 30, 2009

Life term for cyber-terror crimes

Cyber-terrorism is now punishable with life imprisonment as per the Information Technology (Amendment) Act, 2008 that came into force on Tuesday.

 

However, the rapid increase in the use of computers and the Internet has led to newer forms of crime such as child pornography and cyber terrorism. So, new provisions were required to be included in the Information Technology Act, 2000. Accordingly the new Rules pertaining to various sections such as procedure and safeguards for interception, monitoring and decryption of information, procedure for monitoring and collecting traffic data or information have also been notified (The IT  Amendment  Act, 2008 ) , recognises new-age cyber offences such as identity theft, cyber-stalking, cyber harassment, among others.

 

It is a "giant leap forward" in dealing with cyber-terrorism, but it is felt by various cyberlaw experts that the amended legislation had "gone soft" on cyber criminals and cyber crimes, overall. Barring cyber-terrorism and certain other offences, cyber crime is now a bailable offence. This was not the case under the original IT Act. The amendments have raised the quantum of fine involved, but reduced the punishment that gives out a mixed signal.


--
Dr.Tabrez Ahmad,
Associate Professor of Law,
KIIT University, Bhubaneswar, India,
Website: www.kls.ac.in, www.technolexindia.com
Profile: http://www.google.com/profiles/tabrezahmad7.
Blogs: http://www.blogger.com/profile/15337756250055596327
Research Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1189281

Amended Information Technology Act comes into force

 Amended Information Technology Act 2008, of India, now enforced.
 
The Information Technology (Amendment) Act, 2008 has come into force on 27th October, 2009.

Almost Nine years and 10 days after the birth of cyber laws in India, the new improved cyber law regime in India has become a reality. The Information Technology Act initially came into force on 17th October 2000 on the model UNCITRAL of UNO 1996. Major changes to the IT Act 2000 have now come into force with effect from 27th October 2009.

There are around 17 changes and out of that most of the changes relate to cyber crimes. The last decade has seen a spurt in crimes like cyber stalking and voyeurism, cyber pornography, email frauds, phishing and crimes through social networking. All these and more are severely dealt with under the new laws.

Some of the major modifications  are:

1. A special liability has been imposed on call centers, BPOs, banks and others who hold or handle sensitive personal data. If they are negligent in "implementing and maintaining reasonable security practices and procedures", they will be liable to pay compensation. It may be recalled that India's first major BPO related scam was the multi crore MphasiS-Citibank funds siphoning case in 2005. Under the new law, in such cases, the BPOs and call centers could also be made liable if they have not implemented proper security measures.

2. Compensation on cyber crimes like spreading viruses, copying data, unauthorised access, denial of service etc is not restricted to Rs 1 crore anymore. The Adjudicating Officers will have jurisdiction for cases where the claim is upto Rs. 5 crore. Above that the case will need to be filed before the civil courts.

3. The offence of cyber terrorism has been specially included in the law. A cyber terrorist can be punished with life imprisonment.

4. Sending threatening emails and sms are punishable with jail upto 3 years.

5. Publishing sexually explicit acts in the electronic form is punishable with jail upto 3 years.  This would apply to cases like the Delhi MMS scandal where a video of a young couple having sex was spread through cell phones around the country.

6. Voyeurism is now specifically covered. Acts like hiding cameras in changing rooms, hotel rooms etc is punishable with jail upto 3 years. This would apply to cases like the infamous Pune spycam incident where a 58-year old man was arrested for installing spy cameras in his house to 'snoop' on his young lady tenants.

7. Cyber crime cases can now be investigated by Inspector rank police officers. Earlier such offences could not be investigated by an officer below the rank of a deputy superintendent of police.

8. Collecting, browsing, downloading etc of child pornography is punishable with jail upto 5 years for the first conviction. For a subsequent conviction, the jail term can extend to 7 years. A fine of upto Rs 10 lakh can also be levied.

9. The punishment for spreading obscene material by email, websites, sms has been reduced from 5 years jail to 3 years jail. This covers acts like sending 'dirty' jokes and pictures by email or sms.

10. Refusing to hand over passwords to an authorized official could land a person in prison for upto 7 years.

 11. Hacking into a Government computer or website, or even trying to do so in punishable with imprisonment upto 10 years.

12. Rules pertaining to section 52 (Salary, Allowances and Other Terms and Conditions of Service of Chairperson and Members),

13. Rules pertaining to section 69 (Procedure and Safeguards for Interception, Monitoring and Decryption of Information),

14. Rules pertaining to section 69A (Procedure and Safeguards for Blocking for Access of Information by Public),

15. Rules pertaining to section 69B (Procedure and safeguard for Monitoring and Collecting Traffic Data or Information) and

16. Notification under section 70B for appointment of the Indian Computer Emergency Response Team.

17. Rules Rules pertaining to section 54 (Procedure for Investigation of Misbehaviour or Incapacity of Chairperson and Members),

Important links to the IT Act and Amended law:

Official announcement - "Information Technology (Amendment) Act, 2008 comes into force"
http://pibmumbai.gov.in/scripts/detail.asp?releaseId=E2009PR1153

Information Technology Act, 2000:
http://mit.gov.in/download/itbill2000.pdf

 For other relevant notifications, please visit:
http://mit.gov.in/default.ASPX?id=191

IT (Amendment) Act 2008:
http://mit.gov.in/download/it_amendment_act2008.pdf

--
Dr.Tabrez Ahmad,
Associate Professor of Law,
KIIT University, Bhubaneswar, India,
Website: www.kls.ac.in, www.technolexindia.com
Profile: http://www.google.com/profiles/tabrezahmad7.
Blogs: http://www.blogger.com/profile/15337756250055596327
Research Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1189281

Wednesday, October 28, 2009

Indian corporate law firms seem to have come of age globally.

Indian corporate law firms seem to have come of age globally.

According to a recent report on legal firms' services sought in M&A (Merger and Amalgamation).

The report says that between January 1 and September 22, 2009, China topped M&A activities in the region with a 38.8% marketshare. It was followed by Japan (23.1%) and Australia (12.7%), while India stood fourth with a 9.7% share.

India ranks fourth in the Asia-Pacific region with three Indian law firms doing deals in excess of $3 billion this year.  Many international investors are looking at new opportunities. All those deals which were abandoned or jeopardized because of the slowdown are now being revived because of increased confidence in the India Story.

Things were quiet from January to May. Starting June, a significant increase is seen  in the flow of transactions," the second half of the year will witness more deals. Among other Indian firms, Khaitan & Co was involved in 13 deals aggregating $3.23 billion, while Amarchand Mangaldas & Suresh A Shroff & Co worked on nine deals worth $3.03 billion.


Indian law firm, Desai & Diwanji & Co (D&D ) also features in the top ten across the region. By sealing 14 deals accounting  for over $3.6 billion, it is ranked eight in the region.D&D advised Quippo Telecom Infrastructure in its acquisition of Wireless TT Service.

The firm was also involved in advising Avendus Capital and W.L. Ross in the acquisition of Satyam Computer Services by Tech Mahindra. The other large transactions where D&D was involved was Shantha Laboratories' acquisition by Sanofi Pasteur and the sale of SPS Ltd's steel facility's sale to Essar Steel. Law firm Khaitan & Co. was a part of Bahrain Telecom's investment into S Tel as well as NTT DoCoMo's investment in Tata Teleservices. It was also involved in Sterlite Industries' acquisition of Asarco. It seems that the effect of slowdown is almost over and India is witnessing large foreign investment in the domestic market. This will help to the law professionals in getting good opportunities in coporate law firms.But the point to be noted is that this will benefit to the competent professionals only who are well versed with the international and national coporate laws including cyberlaw and IPR.
--
Dr.Tabrez Ahmad,
Associate Professor of Law,
KIIT University, Bhubaneswar, India,
Website: www.kls.ac.in, www.technolexindia.com
Profile: http://www.google.com/profiles/tabrezahmad7.
Blogs: http://www.blogger.com/profile/15337756250055596327
Research Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1189281

Information Technology (Amendment) Bill, 2008 of India

Information Technology (Amendment) Bill, 2008 which has been approved by the Rajya Sabha and Lok Sabha is still awaiting approval of the President.

Information Technology Act 2000 (ITA-2000) is by and large, an Act of the Indian Parliament notified on October 17, 2000. It is worthwhile to mention that the United Nations General Assembly by means of resolution A/RES/51/162, dated the 30 January 1997 did accept the Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law. This is referred to as the UNCITRAL Model Law on E-Commerce.

It has to be stated that the Government of India, by now, has proposed major amendments to ITA-2000 in form of the Information Technology (Amendment) Bill, 2006, passed by the Cabinet Committee of the Government of India and are prepared for being placed before the Indian Parliament for discussion. Nevertheless some substantial developments have taken place in all these years and the bill is known as, at the moment, Information Technology (Amendment) Bill, 2008 which has been approved by the Rajya Sabha and Lok Sabha. The Bill is still awaiting approval of the President along with the formal notification.

There has been the inclusion of many changes, as already said, and at the same time it does incorporate the recommendations made by the Parliamentary Standing Committee.  What surprises many persons is the dearth of media recognition afforded to the amendment. Apart from this the amendment was passed in 26 minutes the 22nd of December 2008 along with 4 other bills, and another 8 in just 17 minutes the next day. This indicates that there was hardly any debate on what should have been very contentious laws.

--
Dr.Tabrez Ahmad,
Associate Professor of Law,
KIIT University, Bhubaneswar, India,
Website: www.kls.ac.in, www.technolexindia.com
Profile: http://www.google.com/profiles/tabrezahmad7.
Blog:http://tabrezahmad.technolexindia.com, http://www.blogger.com/profile/15337756250055596327
Research Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1189281

Tuesday, October 27, 2009

The Swine Flu (H1N1virus) means big business to the lawyers

Due to havoc created by the media on Swine Flu most of the clients are seeking advice of lawyers from around the world and mostly in USA about what to do if the H1N1 virus surfaces in the workplace.  Could they mandate employee vaccinations? Could they require families of workers to be vaccinated? Did they have to pay workers sent home who lacked sick leave? Could they ask people to work from home if they are sick? What about workers who had to stay home and attend to sick kids?

The potential for an H1N1 outbreak puts pressure on businesses to plan and act prudently. They have an obligation to provide a safe environment and to address risks ahead on and in a reasonable manner. So It is advised to the businesses to have policies in place about missing work, working from home and tending to sick kids. This is also important to make sure that employees know what those policies are before they need to stay home to recover or attend to members of their family. The biggest concern about working from home, aside from  the logistics, is the issue of hours and getting paid for time worked. If you're in the office, it's easier to track the number of hours worked. For those working at home, employers need to instill in employees the need to keep accurate track of their time. Such detailed and well-defined policies provide a defense if legal challenges arise.  

There have been several deaths in the world this year due to the H1N1 virus and schools have been reporting higher-than-average absences due to flu-like symptoms. So public attention is focused on the pandemic flu. Employers have known for a while that they could face poor work attendance.

Sick employees need to stay home to protect the workplace, but what protections do these employees have for keeping their jobs? Corporate law interests, protecting employers, but where's the mention of protecting employees

Employers should post signs about the importance of hand washing and providing Lysol spray in bathrooms and antiseptic wipes for common use areas such as conference rooms. They are required to show flexibility with policies governing paid time off. They might want to pay for that day off, even if sick time is exhausted. I recommend giving employees an advance on their sick time and letting them pay it back later.

A lot of these decisions are driven by company culture. Some say they'll make sure workers won't lose pay, but others are more policy driven and if an employee doesn't have sick time, they won't get paid.

Employers also will face issues with employees who travel as part of their jobs, particularly those in sales. Airports and airplanes are notorious for acting as human petri dishes when it comes to the transmission of airborne diseases. The solution may lie in more teleconferencing and Web visits. You want to have those folks producing, but there's a lot of tension over travel.

The notion of working from home also is open to debate because not all job duties can be performed off site. Retail and manufacturing operations, for instance, need bodies on the floor. To guard against workforce shortages, many businesses have done cross training so they can get by with fewer workers for short periods.

It is submitted that employers need to treat people consistently because if employees are aware of what the rules are, they know the consequences if they miss work and there will be no surprises.



--
Dr.Tabrez Ahmad,
Associate Professor of Law,
KIIT University, Bhubaneswar, India,
Website: www.kls.ac.in, www.technolexindia.com
Profile: http://www.google.com/profiles/tabrezahmad7.
Blogs: http://www.blogger.com/profile/15337756250055596327
Research Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1189281

Monday, October 26, 2009

Call for Papers

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. Please see the Jotwell Mission Statement for more details.

Reviews need not be written in a particularly formal manner. Contributors should feel free to write in a manner that will be understandable to scholars, practitioners, and even non-lawyers.

Ordinarily, a Jotwell contribution will

  • be between 500-1000 words;
  • focus on one work, ideally a recent article, but a discussion of a recent book is also welcome;
  • begin with a hyperlink to the original work — in order to make the conversation as inclusive as possible, there is a strong preference for reviews to focus on scholarly works that can be found online without using a subscription service such as Westlaw or Lexis. That said, reviews of articles that are not freely available online, and also of very recent books, are also welcome.

Initially, Jotwell particularly seeks contributions relating to:

We intend to add more sections in the coming months.

References

Authors are responsible for the content and cite-checking of their own articles. Jotwell editors and staff may make editorial suggestions, and may alter the formatting to conform to the house style, but the author remains the final authority on content appearing under his or her name.

  • Please keep citations to a minimum.
  • Please include a hyperlink, if possible, to any works referenced.
  • Textual citations are preferred. Endnotes, with hyperlinks, are allowed if your HTML skills extend that far.
  • Authors are welcome to follow The Bluebook: A Uniform System of Citation (18th ed. 2005), or the The Redbook: A Manual on Legal Style (2d Ed.) or indeed to adopt any other citation form which makes it easy to find the work cited.

Technical

Jotwell publishes in HTML, which is a very simple text format and which does not lend itself to footnotes; textual citations are much preferred.

Contributors should email their article, in plain text, in HTML, or in a common wordprocessor format (Open Office, WordPerfect, or Word) to ed.jotwell@gmail.com and we will forward the article to the appropriate Section Editors. Or you may, if you prefer, contact the appropriate Section Editors directly.



--
Dr.Tabrez Ahmad,
Associate Professor of Law,
KIIT University, Bhubaneswar, India,
Website: www.kls.ac.in, www.technolexindia.com
Profile: http://www.google.com/profiles/tabrezahmad7.
Blogs: http://www.blogger.com/profile/15337756250055596327
Research Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1189281

Call for Papers



--
Dr.Tabrez Ahmad,
Associate Professor of Law,
KIIT University, Bhubaneswar, India,
Website: www.kls.ac.in, www.technolexindia.com
Profile: http://www.google.com/profiles/tabrezahmad7.
Blogs: http://www.blogger.com/profile/15337756250055596327
Research Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1189281

Sunday, October 25, 2009

Legal Dimensions of Cybertrespass

In common language the word 'trespass', means to go on another's property without consent. Though it is ordinarily a civil wrong, if trespass is done with criminal intention, it is treated as criminal trespass. Thus, as trespass actions are stranded in the idea of protecting an owner's control over his property and as even the websites should be considered as a species of property. As like in the case of trespass, when just cracking is there by the cracker, it is of a civil nature but once the intention to cause harm or rather damage the system is proved, the liability becomes that of a penal nature. Now it is not just criminal trespass, which can be done by cracking but cracking may also result in many other crimes which are mentioned in the Indian Penal Code, 1860. Like, if a cracker cracks a banking website and transfers money into his own account, this may constitute a crime under Sec.378 of the Penal Code, which in this case may also be termed as Cyber Theft. The IT Act tries to achieve this by providing civil and penal consequences for cracking and other wrongful activities. The development of new-age technology in the form of computers and other such instruments is the cause of rampant tort of cyber-trespass. The computer may be used as a tool in the following kinds of activity, e-mail spoofing, forgery, cyber defamation, cyber stalking. It is necessarily the breach of personal information of a person and his personal identity details, website databases etc. The computer may however be target for unlawful acts in the most of the cases for e.g. unauthorized access to computer/ computer system/ computer networks, theft of information contained in the electronic form, e-mail bombing, data didling, salami attacks, logic bombs, Trojan attacks, internet time thefts, web jacking, theft of computer system, physically damaging the computer system and other such confidential information. As the capacity of human mind is unfathomable. It is not possible to eliminate cyber trespass from the cyber space. But it is quite possible to check them As computer data often contain personal information a cracker can also infringe one's right to privacy guaranteed by Art.21 of the Constitution of India. The paper will try to analyse the issues that whether there is an exclusive right of any of the parties in respect of the data base of the list of clients and service providers, and opinion and advices in respect of which the parties had an obligation to maintain confidentiality which they have created or whether it was a joint right of all the parties' How much consistent is IT Act in India while defining Hacking and setting its dimensions while dealing with other matters related to cyber trespass: Spamming and Cracking and Indian law. Cyber-stalking and the liability under Indian Law . Remedies for cyber-trespass: Spamming is not only lucrative but is also unregulated to a greater extent. The laws for the prevention of spam in India are missing. Even the IT Act, 2000 fails to address this issue directly and we have to take recourse of "Purposive and Updating Interpretation" to punish the offenders. It can be concluded that the provisions of the cyber law are not made so stringent that it may retard the growth of the industry and prove to be counter-productive.
Details of the paper will be available soon at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1460599


--
Dr.Tabrez Ahmad,
Associate Professor of Law,
KIIT University, Bhubaneswar, India,
Website: www.kls.ac.in, www.technolexindia.com
Profile: http://www.google.com/profiles/tabrezahmad7.
Blogs: http://www.blogger.com/profile/15337756250055596327
Research Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1189281

First Technology Court Inaugurated in India

Justice KG Balakrishnan, Chief Justice of India, who inaugurated the CRAT court room recently, said during the inauguration that the increase of computers pose question for legal system. Union Law Minister of India Dr. M Veerappa Moily has opined that he would like to see more Acts to deal with the increasing volume and variety of cybercrimes. In December 2009, Government amended IT Act 2000, which was mainly intended to give legal recognition to e-commerce, including electronic filing of documents. It is only chapter 11 of the said Act that covers a few offences relating to use and abuse of computer system which invites penalty of fine or imprisonment or both. While other developed states for e.g. USA has several Acts including the Computer Fraud and Abuse Act, Computer Misuse Act, Electronic Fund Transfer Act and Child Online Protection Act. We require well defined laws to deal with the fast emerging issues of cyber crimes in future.  Present Indian Penal Codes are quite helpful in tackling IT related offences, but that may not be enough,

Information Technology Act 2000 of India addresses some basic aspects such as legal recognition of electronic cards and digital signature for the purpose of entering in to contract. There are grey areas in forming contract in cyberspace. We are still trying to apply the Indian Contract Act 1872 in the contract entered through Internet. Of course there are some provisions in IT Act 2000, but those are not sufficient to deal with cyber contracts.

Justice Rajesh Tandon  the would be presiding officer of CRAT ( first cyber court room  ) in India very rightly expressed concern to organize  an international conference for the enforcement of cyber laws as most of the cyber crimes originate outside the country.

Probably the next world war would be fought in cyber space. Cyber terrorist and Mafias are emerging, whose activities are growing to threaten the sovereignty of India and the world over. Terrorists often take over us in the cyber space, which is a product of technical innovation. This we can only prevent by putting proper regulation everywhere.

An appellate tribunal at national level and cyber courts in various states will also be established soon.

--
Dr.Tabrez Ahmad,
Associate Professor of Law,
KIIT University, Bhubaneswar, India,
Website: www.kls.ac.in, www.technolexindia.com
Profile: http://www.google.com/profiles/tabrezahmad7.
Blogs: http://www.blogger.com/profile/15337756250055596327
Research Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1189281

Nature and Scope of Cyberlaw

The biggest challenge before Cyber Law is its integration with the legacy system of laws applicable to the physical world. Since Cyber Space has no geographical boundaries, nor the Netizens have physical characteristics of Sex, Age etc, several conflicts surface when the rights of Netizens are viewed in the eyes of Citizens of a physical space. This is well reflected in the conflict between the Trade mark Laws and system of Domain Names.

The unique structure of the Internet has raised several legal concerns. While grounded in physical computers and other electronic devices, the Internet is independent of any geographic location. While real individuals connect to the Internet and interact with others, it is possible for them to withhold personal information and make their real identities anonymous. If there are laws that could govern the Internet, then it appears that such laws would be fundamentally different from laws that geographic nations use today. Since the Internet defies geographical boundaries, national laws will no longer apply. Instead, an entirely new set of laws will be created to address concerns like intellectual property and individual rights. In effect, the Internet will exist as its own sovereign nation. Cyber law encompasses a wide variety of legal issues which   includes intellectual property, privacy, freedom of expression, and jurisdiction. As the law of Cyber Space, as envisioned by William Gibson in his novel Neuromancer , Cyber Law addresses the issues of Virtual Property and Virtual Persons. It covers rights of Netizens who are the citizens of Cyber Space and regulation of the Cyber Space for a peaceful and harmonious existence of Netizens. There are several countries which have enacted special laws for regulating Cyber Space Transactions of Citizens within their Physical Jurisdiction and these are recognized as the Cyber Laws of the Physical Jurisdiction. Yet, as more physical locations go online, the greater the potential for physical manifestation of electronic misdeeds.  

Free Speech in Cyberspace
In comparison to traditional print-based media, the accessibility and relative anonymity of cyber space has torn down traditional barriers between an individual and his or her ability to publish. Any person with an internet connection has the potential to reach an audience of millions with little-to-no distribution costs. Yet this new form of highly-accessible authorship in cyber space raises questions and perhaps magnifies legal complexities relating to the freedom and regulation of speech in cyberspace.

In many countries, speech through cyberspace has proven to be another means of communication which has been regulated by the government. The Open Net Initiative, whose mission statement is "to investigate and challenge state filtration and surveillance practices" in order to "…generate a credible picture of these practices," has released numerous reports documenting the filtration of internet-speech in various countries. While China has thus far proven to be the most rigorous in its attempts to filter unwanted parts of the internet from its citizens , many other countries – including Singapore, Iran, Saudi Arabia, and Tunisia – have engaged in similar practices. In one of the most vivid examples of information-control, the Chinese government for a short time transparently forwarded requests to the Google search engine to its own, state-controlled search engines . These examples of filtration bring to light many underlying questions concerning the freedom of speech, namely, does the government have a legitimate role in limiting access to information? And if so, what forms of regulation are acceptable? The recent blocking of "blogspot" and other websites in India failed to reconcile the conflicting interests of speech and expression on the one hand and legitimate government concerns on the other hand.

In the UK the case of Keith-Smith v Williams confirmed that existing libel laws applied to internet discussions.

Recently, these complexities have taken many forms, three notable examples being the Jake Baker incident, in which the limits of obscene Internet postings were at issue, the controversial distribution of the DeCSS code, and Gutnick v Dow Jones, in which libel laws were considered in the context of online publishing. The last example was particularly significant because it epitomized the complexities inherent to applying one country's laws (nation-specific by definition) to the internet (international by nature). In 2003, Jonathan Zittrain considered this issue in his paper, "Be Careful What You Ask For: Reconciling a Global Internet and Local Law". Leaving aside the most obvious examples of internet filtering in nations like China or Saudi Arabia (that monitor content), there are four primary modes of regulation of the internet:

Architecture: West Coast Code: these mechanisms concern the parameters of how information can and cannot be transmitted across the internet. Everything from internet filtering software (which searches for keywords or specific URLs and blocks them before they can even appear on the computer requesting them), to encryption programs, to the very basic architecture of TCP/IP protocol, falls within this category of regulation. It is arguable that all other modes of regulation either rely on, or are significantly supported by, regulation via West Coast Code.  2. Law: Standard East Coast Code, and the most self-evident of the four modes of regulation. As the numerous statutes, evolving case law and precedents make clear; many actions on the internet are already subject to conventional legislation (both with regard to transactions conducted on the internet and images posted). Areas like gambling, child pornography, and fraud are regulated in very similar ways online as off-line. While one of the most controversial and unclear areas of evolving laws is the determination of what forum has subject matter jurisdiction over activity (economic and other) conducted on the internet, particularly as cross border transactions affect local jurisdictions, it is certainly clear that substantial portions of internet activity are subject to traditional regulation, and that conduct that is unlawful off-line is presumptively unlawful online, and subject to similar laws and regulations. Scandals with major corporations led to US legislation rethinking corporate governance regulations such as the Sarbanes-Oxley Act.

 Markets: Closely allied with regulation by virtue of social norms, markets also regulate certain patterns of conduct on the internet. While economic markets will have limited influence over non-commercial portions of the internet, the internet also creates a virtual marketplace for information, and such information affects everything from the comparative valuation of services to the traditional valuation of stocks. In addition, the increase in popularity of the internet as a means for transacting all forms of commercial activity, and as a forum for advertisement, has brought the laws of supply and demand in cyberspace.

 Norms: As in all other modes of social interaction, conduct is regulated by social norms and conventions in significant ways. While certain activities or kinds of conduct online may not be specifically prohibited by the code architecture of the internet, or expressly prohibited by applicable law, nevertheless these activities or conduct will be invisibly regulated by the inherent standards of the community, in this case the internet "users." And just as certain patterns of conduct will cause an individual to be ostracized from our real world society, so too certain actions will be censored or self-regulated by the norms of whatever community one chooses to associate with on the internet.

Issues of jurisdiction and sovereignty have quickly come to the fore in the era of the Internet. In general, a crux of "cyber law" lies in whether to treat the Internet as if it were physical space (and thus subject to a given jurisdiction's laws) or to act as if the Internet is a world unto itself (and therefore free of such restraints). Those who favor the latter view often feel that government should leave the Internet community to self-regulate. John Perry Barlow, for example, has addressed the governments of the world and stated, "Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different" (Barlow, A Declaration of the Independence of Cyberspace. A more balanced alternative is the Declaration of Cybersecession ("Human beings possess a mind, which they are absolutely free to inhabit with no legal constraints. Human civilization is developing its own (collective) mind. All we want is to be free to inhabit it with no legal constraints. Since you make sure we cannot harm you, you have no ethical right to intrude our lives. So stop intruding!").

Jurisdiction is an aspect of state sovereignty and it refers to judicial, legislative and administrative competence. Although jurisdiction is an aspect of sovereignty, it is not coextensive with it. The laws of a nation may have extra-territorial impact extending the jurisdiction beyond the sovereign and territorial limits of that nation. This is particularly so where the medium of Internet is used which recognizes no sovereignty and territorial limitations. The jurisdictional issues regarding internet are governed by "Private International Law" or "Conflict of Laws" as there is no uniform law of universal application. Thus, two countries may have different jurisdictional mandates. This is more so where the contents of a web site are legal in one country and illegal in another. The absence of geographical boundaries may give rise to a situation where the material legal in one country where it is posted will violate the laws of another country. This process is further made complicated due to the absence of a uniform and harmonized law governing the jurisdictional aspects of disputes arising by the use of Internet. An international cyber law treaty prescribing a harmonized standard may be its solution otherwise we have to rely upon "conflict of laws" to resolve cyber space disputes.

In practical terms, a user of the Internet is subject to the laws of the state or nation within which he or she goes online. Thus, in the U.S., Jake Baker faced criminal charges for his e-conduct (see Free Speech), and numerous users of peer-to-peer file-sharing software were subject to civil lawsuits for copyright infringement. This system runs into conflicts, however, when these suits are international in nature. Simply put, legal conduct in one nation may be decidedly illegal in another. In fact, even different standards concerning the burden of proof in a civil case can cause jurisdictional problems. For example, an American celebrity, claiming to be insulted by an online American magazine, faces a difficult task of winning a lawsuit against that magazine for libel. But if the celebrity has ties, economic or otherwise, to England, her or she can sue for libel in the British court system, where the standard of "libelous speech" is far lower.
The aim of this segment is to explore how far a person can use the retaliation tactics of aggressive defence  in India or elsewhere, whose computer has been targeted for a wrong, nuisance, virus attacks, etc. The opinion in this context is sharply divided across the globe and some advocate for its use while others considers it to be an illegal act. It would be interesting to analyse whether the traditional concept of "private defence" can be used in cyberspace?
Cyber law in India is incorporated in the Information Technology Act, 2000 (IT Act, 2000). The IT Act, 2000 chiefly covers: (a) E-commerce in India, (b) E-governance in India, (c) Cyber contraventions, (d) Cyber crimes, etc. The IT Act has made major amendments to the Indian Penal Code, 1860, Indian Evidence Act, Bankers Book evidence Act. The landmark amendment made by IT Act 2000, which was came into force on 17th October 2000, is Sec. 56 B of The Evidence Act which made electronic records as an admissible evidence in a court of Law. Due to this amendment transactions of in the electronic form got legal recognition and has given fast growth in e-commerce, m-commerce and e-governace. Still Indian law requires lot of changes to have more teeth for regulation of cyberspace accordingly amendments were proposed in December 2008, but still those amendments are not came into force.

Let us wait and watch and see that what way the horse of cyberspace strides to us and mandates for legal regulation.

Wednesday, October 21, 2009

Now, get a PG diploma in IPR and patent law online from NLU Delhi

Delhi's National Law University has started a postgraduate course in Intellectual Property Rights (IPR) and patent law. The course, to be run through video conferencing, will enable students to get absorbed in research and development organisations, government and non-government agencies.

This 12-month course will encompass majority of the componets of Intellectual Property law, including filing procedures and how to conduct searches of Trademarks, Patents, etc.

This programme,as per the sources of NLU Delhi is at par with the finest IP programmes in the country, extensively covers issues related to management of IP such as commercialisation, valuation, licensing and portfolio audit.Other than legal frameworks, the training will also cover the technical aspects of writing patents and other forms of IP documents, within US, European and Indian processes.
The teaching process will be highly interactive and will consist of a judicious blend of lectures, real life case studies, examples from the corporate world, general discussions, quizzes and assignments in order to provide greater industry insights.
In order to attract working professionals, the classes will be conducted across India through a satellite based platform, before office hours, twice a week. The total fee for the program is Rs. 1,55,000.

Monday, October 19, 2009

Whether we need trade secret protection as a separate and distinct right?

I am firm believer that trade secrets should be viewed more centrally as part of anyone's bundle of IP rights. I want to consider one aspect that has practical as well as doctrinal significance, namely, whether one can contract around trade secrets law (similar, e.g., to the question that arises under copyright law whether one cannot contract away the right to reverse engineer).In trade secret law, [the question] comes up in three significant contexts: efforts to contract around the requirement of secrecy itself, whether in business disputes or in restrictive employment covenants, efforts to ban reverse engineering by contract, and the question of whether a confidential relationship can be implied absent a contract.
The rationale for not allowing one to contract away a trade secret right: The law relating to trade secrets reflects a balance of public and private interests in the encouragement of innovation, the preservation of ethics and the maintenance of a free marketplace of ideas and movements of labor. The balance should not be upset in any given transaction by private understandings between the parties."
Parties may also be prevented from opting out of particular rules of trade secret law, at least to the extent they rely on trade secret rather than contract remedies."
The issue of whether one can contract around trade secrets is a "big thing". The question is what is the ultimate enforceability of the contract around. The underlying difficulty is always the same--if there is a broad right to "contract around" the trade secret right, why exactly should trade secrtes be placed in same pantheon as patents, copyright and trade marks.
We don't have trade secrets laws as distinct from general equitable laws of confidentiality, and there is no great clamour for an extra set of rules. Confidential information is not a type of intellectual property but can be licensed in a similar way. As for "contracting around", an English court is unlikely to protect by contract (ie in a confidentiality agreement) information that does not have any inherent confidentiality. When it comes to non-compete clauses, the courts have set limits (or at least principles governing the limits) on what is acceptable in an employment context and in a sale of business context, respectively.
In USA court hold a party to a contract to an undertaking of confidentiality even if the information is not secret. As a matter of practice, we encounter from time to time "confidential" agreements under English law that include a clause that purports to obligate a party to maintain confidentiality of information and the like without a secrecy limitation to the obligation. We have often wondered how an English court would enforce such a provision where the "disclosure" was not of confidential information. As for the differences between the US, Israel, and other countries, with respect to the treatment of trade secrets that the legal treatment of the subject differs materially from country to country.The EU antiturst authorities give less deference to trade secret claims than their US counterparts because the European Union has no conception of trade secrets as property rights.

Thursday, October 15, 2009

Myths and reality of copyright

There are some common myths that abound in the virtual world, and put you on the right side of the law.
The law does not recognize if you are unaware of copyright laws. So, don’t put yourself in an illegal situation when it is so easy and affordable to use Royalty Free Music from music production libraries. And don’t base your online actions on hearsay. When you download music from the Internet? Perhaps you wanted to use it in the classroom, or needed it for your website, or to add to a flash movie, or maybe to jazz up a multimedia project. Whatever the end use, more and more of us are frequently turning to the Internet as our one-stop resource for digital music because we know that it is a fast and easy way to get just what we are looking for! Unfortunately, what many of us don’t know is that it may not be legal to do so. Downloading music files from the Internet and using them like the music belonged to you means that not only are you infringing upon the copyright, but you are also risking being fined and even being legally prosecuted.
So what is copyright, anyway? When you own the copyright of a piece of work, it means literally that you have the “right to make copies” of that work. By extension you also have the right to license that work to others who want to use it. It is a form of intellectual property law that protects an original piece of work from being pirated and used without permission of its creator
To avoid getting on the wrong side of the law, consider purchasing a legal music license from royalty free music libraries. Whether you are looking for production music for your video or background music for a multimedia presentation, you can choose from literally thousands of royalty free soundtracks. What’s more, buying royalty free music online is really easy and affordable.

There are various myths as follows.
Myth 1: I bought a music CD, I can use the music on my website since I paid for it.

Fact: Wrong. You bought the CD – not the music! Buying a legitimate CD gives you the right to play the music privately. You definitely need permission from the composer of the music as well as the sound recording company to use the music on the CD as background music for your website.
Myth 2: It is legal to use any music for 7 seconds

Fact: No. Unlawful use of even a short excerpt from a song is enough to land you in a copyright infringement case. Don’t believe anyone who tells you otherwise, unless he is a copyright attorney! Remember, there is nothing like free to use music – not for 30 seconds, not for 7 seconds, not even for the first eight bars! You need a license to use music without landing into trouble.

Myth 3: It’s for a non-profit organization, so I can use any music I want for free.

Fact: False. Your project (website, presentation, video, anything) may be non-profit, but when it becomes available to other people, you are allowing them to hear music they didn’t purchase. That is a breach of the copyright law, no matter if you are making money on the project or not.

Myth 4: The composer is dead; his music is no longer under copyright.

Fact: Untrue. The copyright for a music composition lasts for approximately 70 years from the death of the composer. It does not automatically expire with its creator. And even if the composer is dead since a long time – like Mozart for example – you still don’t have the right to use someone’s interpretation of their music without a license.

Myth 5: I can use music because the website did not carry a copyright notice.

Fact: Beginning March 1, 1989, it is no longer mandatory to display the copyright notice to protect one’s intellectual property, in this case, music.
Myth 6: I can use this music for free because I found it on the Internet.

Fact: Absolutely not. All music found on the internet is under copyright. If you reproduce, perform, or distribute musical compositions and sound recordings without the requisite licensing, you are violating copyright law.

And if you are still not convinced, consider this: Would you pick up produce from a farm and walk away without leaving money for what you took? Most certainly not! You wouldn’t deprive a hard working farmer from his rightful income. Likewise, if you violate copyright law, you deprive a composer of the royalties derived from the purchase of their work. Think about it!

So you must be clear about unauthorized reproduction and distribution of copyrighted music, and keeping the copyright police out from knocking at your door!

Sunday, October 4, 2009

Book Review: Calculating Lost Profit in IP and Patent Infringement Cases

Book Review: Calculating Lost Profit in IP and Patent Infringement Cases
The book Calculating Lost Profit in IP and Patent Infringement Cases Authored by Nancy J. Fannon ASA, CPA-ABV, MCBA. Published by Business Valuation Resources, this book is reportedly a 690 page hardback that will set you back US$329 + S&H if you buy it in the next ten days, whereupon the price rises to US$379.
The book brings together the comprehensive body of knowledge on lost profits damages and delivers a definitive resource for IP professionals, tech transfer execs, financial experts, and attorneys, delivers a thorough analysis of current case law and valuation methodology that form the basis of damage awards in IP and patent infringement cases. It comes with 24/7 access to the online edition, which includes the full text of relevant court opinions, a searchable PDF version of the book, plus bonus content and updates as they are released. We live in an era in which patents are commercially exploited -- and infringed -- on an international or global basis. Differentials in calculation as between major markets might lead to interesting forum-shopping questions. But if this book captures the necessary principles and approaches for calculation of lost profit in the US, where are its equivalents in other markets?