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Christiana N. Markou and Christine Riefa

This chapter focuses on the protection of the consumer under EU law when purchasing and using applications (apps) for mobile phones. It examines the provisions of two principal EU consumer protection measures, namely the Consumer Rights Directive and the Unfair Commercial Practice Directive, as they apply to the particular digital product which creates special consumer needs. Under these two EU Directives, the consumer is entitled to receive prior information on the product and some of this information is often tailored to the nature of applications as digital content. Moreover, under certain circumstances, the consumer can withdraw from an “app-contract” without having to pay for any content he or she has received. More generally, the consumer should not be misled into purchasing a mobile application or making in-app purchases, and certain of the techniques utilized to push consumers towards such purchases are liable to be considered aggressive and thus legally impermissible even when not misleading. The chapter shows that legislation is in place to protect the consumer, yet as the rules are not app-specific, many issues surrounding their interpretation or practical application may cause problems. The European Commission and national regulatory bodies have issued useful guidelines regarding the application of the rules to mobile applications, but certain issues seem to merit further clarification.

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Amy J. Schmitz

Ecommerce is overshadowing face-to-face transactions in business-to-consumer (“B2C”) commerce. This benefits consumers in providing more buying options, but may leave them with no remedies when purchases go awry. This chapter therefore discusses how online dispute resolution (“ODR”) systems may expand and equalize remedy systems in B2C exchanges. Part II of the chapter discusses the need for expanded ODR to provide consumers with access to remedies regarding online purchases. Part III explains how ODR systems are unfolding on international and domestic fronts in B2C exchanges. Part IV then highlights their strengths and weaknesses and proposes ideas for how ODR systems can be improved to offer consumers efficient and fair means for accessing ecommerce remedies. The chapter concludes with an invitation to continue the development of such ODR systems in an effort to foster revived corporate responsibility and empower all consumers regardless of their resources, power, or status.

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Asma A.I. Vranaki

This chapter draws on qualitative interviews, documentary analysis, and observation data to analyze how European data protection authorities (“EU DPAs”) exercise one of their statutory enforcement powers, namely, investigations to determine the compliance of cloud providers with the relevant data protection laws. The empirical analysis presented in this chapter supports two arguments. Firstly, the investigations of cloud providers by EU DPAs (“Cloud Investigations”) are complex regulatory processes that often involve different co-operative relationships between various actors, such as DPAs. In reality, manifold interactions and practices, such as facilitative instruments, are deployed to form and perform such collaborations which are vital in ensuring the consistent application and enforcement of common data protection principles in an increasingly globalized context. Secondly, Cloud Investigations are also dynamic as they can involve continually evolving regulatory enforcement styles and compliance attitudes. Providers of cloud services can often resist the attempts of the EU DPAs to direct the investigative process in specific ways. How such resistance is resolved is very much context-dependent.

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Sonia E. Rolland

Consumer protection largely remains the province of domestic regulators acting within the confines of their jurisdiction, but globalized trade, and electronic commerce in particular, challenges such a model. Nevertheless, very little has been done to bridge the gap between domestic regulation and remedies on the one hand, and a globalized production chain that is directly accessible to consumers via ecommerce on the other. From early calls for international harmonization to current treaty negotiations, the debate is now in the public eye, but little consensus has emerged on the most effective way to protect consumers in cross-border ecommerce transactions. The eclectic nature of consumer protection issues that arise in relation to cross-border ecommerce, combined with the lack of a single forum or framework to parse out these issues, raises considerable challenges on a global scale. Although most consumer protection advocates do not typically think of trade regimes as the appropriate forum for consumer protection, the fact remains that trade law has both positive and negative impacts on consumer protection, many of which remain unaddressed and under-researched. That is not to say that trade agreements are the appropriate or the best forum for protecting consumer interests, but it highlights the need to consider how trade disciplines affect consumer protection and how the trade regime relates to other regulatory authorities in this space. This chapter outlines consumer interests and domestic regulatory responses. It then examines how consumer interests in ecommerce are treated in trade law, including at the World Trade Organization and in other trade agreements.  The chapter then surveys initiatives outside of trade law to protect consumers in the digital economy, including international cooperation outside the context of trade law.

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Irene Calboli

This chapter address the issue of secondary liability in trademark law, specifically the ongoing uncertainty that still characterizes the application of the judicial doctrine of contributory trademark infringement. Scholars and courts in the United States have long discussed the standard to apply for finding contributory infringement. The debate intensified with the arrival of the Internet. In particular, several legal disputes claiming contributory trademark liability for intermediaries were filed in the years that followed the rise of the Internet. While this increase in disputes has led to a higher number of judicial decisions addressing contributory infringement, the precise boundaries for the application of the doctrine remain unclear. This chapter advocates for more clarity in this area. The chapter starts with a survey of the judicial development of the doctrine of contributory trademark infringement, first in the brick-and-mortar world and then as applied to the Internet. Based on this survey, the chapter notes that we still do not have clarity as to what represents sufficient “knowledge” and “control” to make an intermediary liable under the Inwood test, even though courts seem to have settled on a narrow interpretation of these concepts due to the concern that a broader interpretation would foreclose legitimate intermediaries’ activities. The chapter concludes that courts ultimately seem to follow a “we know it when we see it” approach in this area, based on an overall “benevolence standard” towards businesses that are primarily legitimate. Yet, this approach leaves too much uncertainty, and intermediaries and the service economy need clearer guidelines from the courts and, possibly, from the legislature.

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Annemarie Bridy

In the years since passage of the Digital Millennium Copyright Act (“DMCA”), the copyright industries have demanded that online intermediaries — both those covered by the DMCA and those falling outside the statute’s ambit — do more than the law requires to protect intellectual property rights. In particular, copyright owners have sought new ways to reach and shutter “pirate sites” beyond the reach of United States law. Online intermediaries have answered their demands through an expanding regime of nominally voluntary “DMCA-plus” enforcement. This chapter surveys the current landscape of DMCA-plus enforcement by dividing such enforcement into two categories: Type 1 and Type 2. Type 1 DMCA-plus enforcement is cooperation by DMCA-covered intermediaries over and above what is required for safe harbor. Type 2 DMCA-plus enforcement is cooperation by intermediaries whose activities fall outside the scope of the DMCA’s safe harbors and who are not liable for their customers’ copyright infringements under secondary liability rules. As the gap widens between what the law requires and what intermediaries are agreeing to do on a voluntary basis, there is reason to be concerned about the expressive and due process rights of users and website operators, who have no seat at the table when intermediaries and copyright owners negotiate “best practices” for mitigating online infringement, including which sanctions to impose, which content to remove, and which websites to block without judicial intervention.

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Suzanne Brown Walsh, Naomi Cahn and Christina L. Kunz

This chapter addresses the appropriate treatment of a person’s digital life when the account holder can no longer manage it. As the Internet becomes an increasingly important presence in our daily lives, the law has a significant role to play in determining the management of digital assets upon the account holder’s incapacity or death. In the past, people put hard copies of photos in albums, listened to record albums, and paid bills with a stamped envelope. Today, most people use the Internet to store photos, listen to music, and pay bills. Yet few people have considered how to dispose of their digital assets. This chapter explores the legal issues for trusts, estates, conservatorships, and powers of attorney. It addresses the importance of fiduciaries being able to manage an account holder’s digital assets, and the obstacles under federal and state law to a fiduciary assuming that role. Finally, it shows how the revised Uniform Fiduciary Access to Digital Assets Act provides a solution to ensure effectuation of the account holder’s intent

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Ariel Katz

Rumor has it that the first-sale doctrine is dying. Forged in the era of the physical copy, the rumor suggests that the doctrine will lose its prominence in the brave new world where works in digital formats are no longer distributed and enjoyed as particular identifiable objects but exist merely as data flows. Some (e.g., librarians, consumer advocates) mourn the loss of their beloved doctrine with trepidation, while others (e.g., publishers) rejoice at its anticipated demise. Both camps assume that the doctrine is confined to the transfer of tangible copies, and that it limits only copyright owners’ distribution right, not any other exclusive rights. The death prognosis further relies on the proliferation of contractual and licensing conditions that purport to prohibit one buyer from transferring what he or she purchased to another, even if the transfer was otherwise technically possible and legally permissible. This chapter argues that the rumor of the doctrine’s death is premature. The death prognosis regards the first-sale doctrine merely as a statutory exception, and one that limits only the copyright owner’s distribution right, but not other rights. The doctrine, thus, protects defendants who can show that their acts fall within the bounds of the statutory exception, but any mismatch would be fatal. The chapter offers a different understanding of the first-sale doctrine. As a “first sale” doctrine it may limit the distribution right, but its statutory presence merely affirms a broader principle of exhaustion—one of several principles in copyright law that limit the copyright owners’ powers, as well as a species of a broader genus of principles that limit the exercise of private power more generally. Since the doctrine isn’t a creature of statute, its codification does not limit courts in applying the broader principle of exhaustion that it reflects. The death prognosis rests on the first and narrow view, which also implies that only legislative reform can expand exhaustion beyond that limited statutory scope. Under the second view, however, the first-sale doctrine may not only be alive, but might well be kicking. The chapter shows that the second view is both plausible and sound.

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David F. Lindsay

This chapter explains and evaluates the background to current issues in domain name governance. In doing so, it first explains why domain names, and the domain name system (“DNS”), continue to be significant. The chapter then describes the complex global processes relating to Internet and DNS governance, before introducing and analyzing the multi-stakeholder model (“MSM”). Following this, the version of the MSM applied by ICANN is illustrated by the processes for introducing a significant number of new top-level domains (“TLDs”), and especially with controversies associated with the applications for the .wine and .vin domains. Finally, the chapter explains and analyzes issues regarding the future of DNS governance, including the transition from residual U.S. government supervision of ICANN (known as the IANA transition) and the associated process for developing replacement accountability mechanisms. In doing so, the chapter does not engage in a detailed explanation of ICANN’s legal and institutional proposals relating to the IANA transition, but provides a perspective on the context in which the proposals were developed. The chapter concludes with some observations as to why DNS governance is inherently problematical and why debates about Internet governance resist effective resolution. As the chapter maintains, the difficulties in establishing a legitimate DNS governance structure mean that domain name governance will likely remain a site for the generation of competing narratives of legitimacy and governance, and a seemingly perpetual negotiation and re-negotiation of governance structures, for the foreseeable future. To the extent possible, the chapter is accurate to March 2015; but, given the fluid nature of the area, necessarily makes reference to developments since that time.

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Hannibal Travis

This chapter explores the potential benefits and costs of the involuntary mass digitization of millions of printed books contained in the libraries that join the Google Books project. The ability to search for and preview relevant passages in copyrighted books may expand the potential market for the books, which might otherwise be obscure.  Limited time, personnel, and shelf space mean that that many books will go unnoticed. Full-text search of digitized books may increase sales by exposing passages to more readers, courts have found, just as the dissemination of trailers, plot overviews, and frames from films and video games may increase the viewership and acquisition of them. On the other hand, authors and publishers are concerned that a Napster for books may result in the leakage of scans to the Internet, and the loss of an opportunity to license inclusion in digital libraries and derivative works.  The chapter therefore provides an overview of the economics of fair use and derivative works, as well as of sampling and widespread digital infringement, before analyzing the courts’ fair use findings as to Google Books and a related project, HathiTrust.