MGTD06
	Marketing in the Information Age
	4rth year course in the Division of Management, University of Toronto at Scarborough, Canada

This page last changed 2004 Sep 30
 
 

E-commerce Law and Regulations           Text Based Resources       E-commerce Law and Regulations           Text Based Resources       E-commerce Law and Regulations

Chpt 10  in Turban's book Chpt 10 in Turban's book deals with several aspects of legal issues - in fact the chapter is titled "Public Policy: From Legal Issues toPrivacy" P. 342 has a good list of all the main legal issues in EC, they are as follows: Privacy Intellectual Property Free Speech Taxation Consumer Protection Legal Issues vs. Ethics issues Other, including validity of contracts jurisdictions encryption policies internet gambling Chpt 10 is on the Turban web site and has an accompanying powerpoint Chpt 11 Schneider and Perry's book Electronic Commerce Chpt 11 is titled Legal, Ethical and tax issues and the legal topics are covered from page348 - 357  http://www.course.com/downloads/sites /ecommerce/ch11main.html What is helpful about this section is their reference to the Cyberspace Law Subject Index sponsored by the John Marshall Law School of Chicago

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Guest Lecturer

Like other professional service industries, law firms, like accounting firms and public relations firms, are addressing internet and e-commerce issues by building capability among their staff to deal with client issues that are very contemporary and complex. In Canada we have witnessed a number of large mergers among law firms in the 1990's and the result is some very large sized organizations with the ability to compete on a national and international basis. Quite a few of these firms realize that it is "open territory" to secure a reputation for competence and ability in this new field and they can be quite competitive in their efforts to establish new reputations. One aspect of this competitive is that many of these firms (law, accounting etc.) give away a lot of free information on their web sites about current "e" topics. This is very helpful to persons learning about these issues but at the same time you have to be a bit discriminating and recognize the difference between advetorial content and topic content. Since the area of Law and the Internet is necessarily a complex issue that requires a tremedous amount of current study as well as much experience and knowledge of existing legislation that can be applied - we do not presume to be able to deliver all of the information you require in this area; therefore we are incorporating in this section a distinguished "guest lecturer" from one of the leading law firms in Canada.         Mr. Milrad's background in legal issues related to the internet is very extensive and he also remains current by being involved in a number of key industry associations such as ITAC (in which is is General Counsel to the association and Member of the Board of Governors)

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E-commerce Law and Regulations E-commerce Law and Regulations

The E-commerce Project is a not-for-profit initiative. It is jointly sponsored by America Online, Inc., the Institute for Information, Telecommunications and Media Law at the University of Muenster, The International Bar Association, The Computer Law Association, The Internet Law and Policy Forum and the Interactive Services Association. Its content is being updated by a network of "National Reporters,",who are members of one or more of the sponsoring organizations and who volunteer to report on current developments and events in their respective home countries. They include lawyers, professors and other professionals, who are experts on specific e-commerce related topics.  The E-commerce Project should be a reference source for IEC 719 - it has links to current articles on the many different categories of E-com Law eg. copyright infringement electronic payment authentification regulations trademark and patents issues for web page content taxation and juristictions consumer protection regulations enforceability of laws adult content access This Vancouver based law firm has a good web page which includes a very useful check list of questions you should ask yourself about a web site you are working on. They call it "Legal Audit for Web Sites" and you can access the list for free at  http://www.dunn.com/papers/audit.htm [when we checked again Nov 2000, this audit page was not at this location]

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E-commerce Law and Regulations

Professor Michael Rappa's web page on Intellectual Property  http://ecommerce.ncsu.edu/topics/ip/ip.html includes links to articles such as Patent Protection for E-Commerce Business Models from the law firm of "Why should an e-business seek patent protection for its software technologies or software implemented business models? Simply answered, patents provide a competitive advantage in a marketplace where unprotected technical innovation and marketing no longer guarantee success. A patent provides a powerful legal right to exclude others from making, using or selling a patented feature of a computer program." "A consumer today is likely to discover numerous competitive Internet Web sites offering the same or similar information, products or services. To succeed in this competitive e-commerce market, a business must attract as many consumers as possible to its Web site, while building and retaining consumer loyalty. Sometimes, a Web site is more attractive to consumers because it is built with cutting edge technology that provides advanced audio/visual user interfaces, services and security measures. E-commerce proprietors have recognized that a competitive advantage may be gained by securing patent protection for such technological innovations." (to read more, click here) Patent Protection for E-Commerce Business Models "Patents offer at least four critical advantages to businesses engaged in e-commerce: (1) A patent may serve as an offensive weapon for battling competitors and protecting market share; (2) A patent may serve as a defensive shield for protecting research and development, business, and marketing investments;  (3) A patent may create corporate value, resulting in the attraction of capital investment; and (4) A patent may create licensing opportunities." Also linked off Prof. Rappa's web site is BitLaw covers the legal issues of:      copyright concerns;       domain name concerns;       trademark concerns;       defamation; and       linking and framing.

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Jurisdictional Issues

One of the biggest challenges in Internet legal issues is the matter of jurisdiction. If you are speeding in New York City, you can be pulled over by the New York City Police. If you are speeding on a highway between metro areas, you can be arrested by New York State Troopers. If you commit a crime that involves travelling between states, you can be arrested by the FBI. If you commit a crime that is outside the jurisdiction of any particular countries - you will not be arrested since the law can only be enforced when their is an agency that has jurisdiction.   . Many companies involved in adult entertainment and gambling on the Internet think they can avoid prosecution of local and regional laws by having their server (the hardware machine that actually contains the .html pages being accessed) in various small countries in the Caribbean and this will allow them to avoid prosecution in USA, Canada of wherever they originated from. The question of jurisdiction does not just apply to adult and gambling sites but as we can see in the case of Yahoo vs. France, relatively innocent companies can drawn into jurisdictional matters through 3rd party actions.. WTGR In August 2000 there was a case involving Yahoo which saw Yahoo being ordered by the French government to block access to sites auctioning Nazi memorabilia. In France, it is against the law for such things to be sold since it comes under the category of their anti-racism and hate crimes legislation. While "www.yahoo.fr" does not carry links to such Nazi sites, it is possible for people to go onther Yahoo sites and find Nazi auctions. Yahoo pleaded that it was technologically impossible to block people accessing such sites but the French government did not agree and took Yahoo to court. As of August 12, 2000, the French judge hearing the case had not yet called for Yahoo to be fined for failing to comply and was delaying his ruling. The most interesting point coming out of the trial was the judge's "rejecting Yahoo's argument that French courts did not have the power to impose French law ... when French people tapped in to Yahoo's English language portal" Reuters  Update 2001   By Tim McDonald  www.NewsFactor.com,   Part of the NewsFactor Network   November 8, 2001  listed on E-Commerce Times site "A federal [United States] judge said Wednesday [Nov 2001] that Yahoo! (Nasdaq: YHOO) is protected by the  First Amendment of the U.S. Constitution from French groups trying to force the  company to ban Nazi memorabilia on its auction sites.  Yahoo! was sued last year by anti-racism groups in France, despite the fact that the Nazi memorabilia was selling on a U.S. auction site aimed at U.S. customers, because French users were able to access the site.  Though Yahoo! has already taken most Nazi-related items off its global auction sites, the Internet portal asked U.S. District Judge Jeremy Fogel in San Jose, California to consider whether a French court could impose French law on a U.S.-based Internet company. Fogel ruled that Yahoo! would not have to comply with the French order to ban the items."

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Jurisdictional Issues

Domenic Crolla, a lawyer in the Ottawa office of Gowlings spoke at COMDEX 2000 in Toronto on the issue of Internet jrisdiction issues. An excellent article by him was also published in Gowlings in house newsletter and a cyber copy was also put on Gowlings web site  http://www.gowlings.com/cgi-bin/gow.exe?mode=article&number=393&w_text= Mr. Crolla writes "When conducting business across national or provincial boundaries, which jurisdiction’s laws apply to your  online transactions, or even merely to you or your employee’s online actions? In what jurisdiction would you enforce  your rights stemming from online activity?... You should read this article because it mentions a number of precedent setting cases by which subsequent cases are being judged.   Crolla writes "... there are some principles with which any Canadian business with a website should try to become familiar. The leading American case on Internet jurisdiction, decided three years ago, is Zippo Manufacturing Company v. Zippo Dot Com, Inc. (“Zippo”) ... In Zippo, the [American] Court establishes a three-pronged test for determining when an American court is to exercise jurisdiction over a non-resident (including a Canadian business).... What is most interesting about Zippo is the analysis that the Court makes about websites. The Court focusses on the nature and quality of commercial activity of company websites and created a “sliding scale” to determine if any  website in the world could be the subject of a lawsuit in an American jurisdiction. The “sliding scale” has two  extremes. At one end, websites which allow for commercial transactions are considered to be “active”. At the other  end, websites which merely provide information to be accessed by others are considered to be “passive”.... A Canadian business which publishes brochureware (brochures converted into HTML code to be placed on the company website), and does not conduct business with anyone outside of Canada, should not have to worry about American courts exercising jurisdiction over the company website." "Domenic Crolla is a Partner in the Ottawa office, practises in the area of civil litigation with particular emphasis on professional liability and health law, and has an interest in the application of information technology to professional practice. He can be reached  (613) 786-0173 or by e-mail at crollad@gowlings.com" from www.gowlings.com

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Electronic Contracts

from Turban's book,  chpt 10, p. 365 Legally binding contracts require 3 parts offer acceptance consideration These three parts are challenging to confirm when parts of the process are done digitally Prof. Geist's new book "Internet Law in Canada"  has Chapter 10 "Online Contracting" devoted to the topic Geist introduces the chapter by explaining an important point "Online contracting is clearly central to the e-commerce transaction, since without the ability to create enforceable contracts online, e-commerce would grind to a halt" p. 474 Geist understands well the problems online and points out that "in many e-commerce situations the parties do not have an underlying relationship, and the contract is consumated 'on the fly'... the favoured approach for contracting online is a controversial one - the clickwrap contract. The clickwrap contract is merely a contract by which terms are assented to through clicking an "I agree" button ... it is frequently difficult or impossible to ascertain the terms of clickwrap contracts"

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"The biggest risk for organisations is believing that m-business opportunities are two to three years away. The pace with which businesses accept emerging technologies is accelerating.  M-business is here today, and growing at a tremendous rate. "

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In an attempt to give us a snapshot approach to understanding the whole picture of wireless business and m-commerce, we will employ the results of a class assignment, April 2001. In this assignment, the class was divided into 2 groups. Each group was charged with creating a point form summary of all the concepts and "critical understandings" that would be necessary to have in order to deal with the new issues in wireless business and m-commerce. The emphasis is on "summary" and the team members were reminded that the purpose was not to describe in detail all the topics, but rather organize and categorize an abbreviated list of the topics and put the topics in an order which would make viewing of it, understandable and educational.

The results are below. The teams had two different approaches to this task. Both results are useful to look at as a summary of wireless business and m-commerce.
 
 

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Internet  needs  space  to grow                         Internet  needs  space  to grow                           Internet  needs  space  to grow

. the well researched article by Tyler Hamilton in the Toronto Star "Ubiquitous Internet needs space to grow"  http://www.thestar.com/cgi-bin/....r/Layout/Article_PrintFriendly&c=Article&cid=990329594097   . What Tyler is talking about can be analogized like this: imagine the invention of the telephone taking off very very fast, and you begin with 6 digit numbers and no area codes, but realize after a couple of years you will run out of 6 digit telephone number, and, if you switch to 7 digit numbers, to accomodate more growth, the older telephones working on 6 digits won't operate in the new 7 digit system. WTGR Mr. Hamilton writes a long article about the consequences of running out of IP addresses as more and more devices and facilities are connected to the internet. He begins the article by explaining the wide range of appliances and technologies that could be connected tot he Net, which would require IP addresses in order to be "contacted" and given commands.   "It's 2020 and, like electricity and running water, the Internet has come to power, and flows through every aspect of your life. Your personal computer and mobile phone aren't the only devices connected to the World Wide Web. Your microwave now surfs for recipes based on the ingredients in your cupboards. Your grocery orders are automatically placed online as food and drinks are taken from your fridge. Your dishwasher, before turning itself on, negotiates the cheapest energy rate for the day, thanks to a software agent known as a hydrobroker. Minivans. Air conditioners. Picture frames. Digital books. MP3 players. Palm computers. BlackBerry pagers. Smart cards. Pop machines. Motor boats.... They will all have a 24-hour, always-on connection to the Internet one day and, like the devices I mentioned above, they will all require Internet Protocol or IP addresses to identify them as unique online ``beings.''  Many experts suggest that the average person will need more than 100 IP addresses for his or her own use within the next 20 years. Herein lies the problem. The Internet, as it exists today, can't support 600 billion IP addresses. If we're lucky, it's capable of assigning 4.3 billion addresses. And if that's the case, we've already used up more than 60 per cent of the capacity, meaning we'll likely run out within the next few years. Can anybody say crisis? If you thought the Y2K bug threat was a major headache, then get ready for a migraine." "Every device that links to the Internet needs its own IP address so that other online devices can find and communicate with it.  Today, when a device such as a laptop dials up to the Internet, it is assigned a temporary IP address for that specific online session. But in the not-so-distant future of always-on, ubiquitous Net access, most IP addresses will be permanently assigned -  kind of like a telephone number.   ``If we don't do anything, then we have a similar problem to Y2K,'' says Latif Ladid, president of the IPv6 Forum, a global consortium of more than a 100 telecommunications carriers, Internet service providers and network equipment makers" "The current generation, known as Internet protocol version 4, or IPv4, has been in place since 1983. It was co-created by Dr.  Vint Cerf, known affectionately as ``father of the Internet.'' Before IPv4, we had APARnet, a network of about 300 mainframe computers that was built by the U.S. government and operated between 1969 and 1983. Ladid says it's time to move forward with Internet Protocol version 6, or IPv6, in development since the early 1990s and was approved as a global standard in 1999. Soon after, Ladid founded the IPv6 Forum. The group was in Ottawa last week [2001 May] as part of a worldwide awareness tour.  As far as Ladid is concerned, if we start embracing IPv6 now, we are more likely to avoid the last-minute crunch we  experienced with Y2K."

Internet needs  space  to grow

Latif Ladid, president of the IPv6 Forum, has a powerpoint presentation on the IPv6 website which you are encouraged to have a look at the first few slides.

Internet  needs  space  to grow                         Internet  needs  space  to grow

. Tyler Hamilton [in May 2001] is one of the first journalists in Canada to address this problem but it is possible to find reference to this "challenge" in some articles going back to 1999. WTGR   . the 1999 article by Joe McGarvey of ZD Net Inter@ctive Week raises the question of IP addresses limitations and challenges faced by the IPv6 Forum  http://www.zdnet.com/intweek/stories/news/0,4164,2349342,00.html McGarvey explains, "The major shortcoming of the current version of IP, IPv4, is that it is running out of available IP addresses.  Designed when the Internet was still a data-sharing  network for research facilities and the military, IPv4 was given a 32-bit addressing scheme, which was capable of assigning a few billion unique addresses. IPv6, on the other hand, is beefed up with a 128-bit addressing scheme, which enables it to spawn many more billions of additional addresses." McGarvey notes the first meeting of the IPv6 Forum, an international advocacy group dedicated to advancing the next generation of the Internet Protocol (IP), was held in Paris in October 1999.