JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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Exploring the Viability of AI as Judicial Replacements: a Cautionary Perspective
Full text linkConsidering the high pace of technological development, it is not futile to wonder whether AI could ever replace judges. This work analyzes this possibility and speculates on one fundamental question: Could AI effectively replace judges in all their functions? The paper proposes a cautious view: it pleads a comprehensive conception of the judicial function, where the human judge fulfills a much more complex role than just interpreting the norm and applying it to concrete cases. AI\u27s lack of social understanding, moral agency, and rational autonomy prevents it from performing the fundamental social governance role of the judge. It does not seem that, in most cases, AI should go beyond a purely supportive role
To what extent can online service providers adopt voluntary content moderation measures without losing their immunity shields? A comparative analysis of online service providers’ liabilities in the European Union and the United States
Full text linkImmunity for engaging in voluntary content moderation measures is a new addition to the European Union legal framework for intermediaries’ liabilities. Article 7 of the Digital Services Act guarantees eligibility for immunity to online service providers undertaking good faith voluntary own-initiative investigations similar to the Good Samaritan provision originating in Section 230 of the US Communication Decency Act. The latter has been in place for more than two decades and the breadth of US case law sheds some insights into the strengths and weakness of this provision. This research paper aims to identify similarities and differences between the rules that protect online Good Samaritans in both jurisdictions and determine whether the rules effectively fight illegal content online without undermining the immunity of online service providers. It does so by looking at the relevant jurisprudence and the existing legal provisions on liability exemptions for voluntary content moderation in both jurisdictions. It further examines the proposals to amend Section 230 in the US which are a symptom of the dissatisfaction surrounding the broad immunity granted to online service providers and the perceived, occasionally misconstrued, shortcomings of the provision. Additionally, they provide indications as to whether limiting the immunity shields to online service providers engaging in voluntary content moderation measures aligns with the standards of good faith and diligence set forth in the Digital Services Act. 
Liability for Wrongful Behaviour in the Metaverse
Full text linkAlthough the Metaverse presents various potential legal issues including cybersecurity problems, jurisdictional conundrums, an obscure characterization of digital property, and personal data protection just to name a few. This paper specifically focuses on those issues arising from avatar misconduct in online virtual worlds. It is argued that harm suffered by a person may be caused by or through an avatar and that this argument hinges on whether avatars are recognised as legal persons and the lack of said recognition. Currently, avatars do not have legal personhood, making it an essential task to identify a liable party, prove harm and causation, and establish a basis for imputation to successfully bring a claim for compensation before national courts of Law. These issues must be addressed under existing regulations, highlighting the need for new approaches to handle these situations effectively when adequate. Civil liability for tortious conduct is examined under civil law systems to shed some light on whether actions by or through avatars in online virtual environments can be translated into this framework, leading to the enforceable legal consequence that is compensation for harm suffered
Towards an Optimal Regulatory Strategy for Data Protection: Insights from Law and Economics
Full text linkIn this paper, we examine data protection regulation from the standpoint of Law & Economics. Specifically, we analyze the advantages and disadvantages of the two distinct data protection regulation frameworks in the EU and the US. We compare these regulatory frameworks based on the criteria set by S. Shavell in his seminal work “Liability for Harm Versus Regulation of Safety”. We utilize Shavell’s model to compare the ex ante regulatory approach to data protection in the EU with the ex post liability approach of the US. This comparative analysis helps us explore whether the focus in the field of data protection should be on proactive (ex-ante) regulation or reactive (ex-post) liability. We find difficulties in comparing the regulatory frameworks, considering the dominant conceptual framework of human rights in the data protection field. However, the comparison provides valuable efficiency-based arguments on ways to optimize both regulatory frameworks. 
Devaluing SEPs: Hold-up bias and side effects of the European Draft Regulation
Full text linkThe EU Commission’s recent proposal for a regulation on standard essential patents (SEPs) envisages a radical overhaul of the current framework, introducing an essentiality check system, a conciliation process for fair, reasonable and non-discriminatory (FRAND) terms, and a mechanism to determine a reasonable aggregate royalty. However, both the economic justification and the approach endorsed by the proposal are questionable. Indeed, on one hand, there is no evidence of a market failure to justify the initiative and, in addition, the provisions appear to be one-sided, apparently being aimed only at addressing a hold-up problem and pursuing a value-distribution goal from SEP owners to implementers. Accordingly, this paper views the proposal critically, arguing that it departs from the well-established meaning and rationale of FRAND commitments by disregarding hold-out problems, and it jeopardises the suitability of SEPs to serve as valuable financial collateral, thereby endangering future investments in innovation
Data Usability as a Parameter of Rights and Obligations under the EU Data Act
Full text linkAs an instrument for advancing the data economy, the EU Data Act aspires to enhance the accessibility of data generated through the use of connected products and related services, thereby unlocking the potential of data for the benefit of society. This article focuses on data usability as an equally crucial factor in harnessing value from data, an aspect that gained recognition only in the later stages of the legislative process. In particular, we examine the technical state of data, which is both a technical factor for realising the value of data and a legal parameter delineating the scope of data access and usage rights, along with the respective obligations introduced by the Data Act.
Our analysis finds that data usability is not thoroughly considered in the Data Act and is only minimally addressed within the framework of its data-sharing regime. We identify several concepts bearing on the technical state of data – including the notions of ‘pre-processed data’, ‘readily available data’, ‘simple operation’, ‘insignificant investment’, and ‘disproportionate effort’ – that remain unclear, leading to uncertainties regarding the scope of data-sharing obligations. The attainment of the policy goals will, to an impactful extent, hinge on the interpretation and application of these criteria. While acknowledging that the final version of the Data Act represents an improvement over the initial proposal in terms of addressing data usability, we contend that the imposition of restrictive criteria on the scope of ‘readily available data’ and ‘pre-processed’ data is not justified, whether viewed from the perspective of technical necessity, legal certainty, or a balance of interests
SEP Licensing Level in Value Chains with Emphasis on IoT and Connected Cars
Full text linkThe complexities of licensing in multi-tier value chains, notably within industries like connected cars, pose significant challenges. The pivotal question arises: Who should be responsible for obtaining licenses for Standard Essential Patents (SEPs) - Tier 1, Tier 2, Tier 3 suppliers, or end-product manufacturers?
The Daimler vs. Nokia case vividly illustrates the intricate web of connected car value chains, where three primary licensing alternatives were scrutinized. SEP holders typically prefer granting licenses to end-product manufacturers, based on the product’s value. However, end-product manufacturers may challenge both the royalty base and the necessity of obtaining the license, advocating for the component supplier to be the licensee.
Conversely, component suppliers seek licensing, aiming to innovate and develop independently. Legally, SEP holders may hesitate to license component makers due to the first sale doctrine, which limits patent exhaustion within the value chain.
This paper meticulously examines the intricate issue of determining the rightful licensee in multi-tier value chains, leveraging insights from the Daimler case. Our analysis explores patent law, including concepts like the have-made right, FRAND commitments under ETSI, and competition law. We scrutinize the potential shifts in policy favoring licensing component suppliers, offering valuable insights into the complex landscape of SEP licensing in connected car industries
Enhancing Legitimacy of Content Moderation
Full text linkPlatforms are actively developing strategies to enhance the legitimacy of their content moderation and gain acceptance and trust across diverse user groups. This paper explores one such strategy, endorsed by the EU regulator, which involves proceduralizing content moderation, with a focus on copyright enforcement as a case study. However, the paper raises concerns regarding the efficacy of proceduralization in legitimizing content moderation, citing historical limitations in the adoption of dispute resolution mechanisms by ordinary users. In response, the paper suggests a complementary approach: integrating elements of procedural justice, based on users’ perceptions of fairness, into the implementation of content moderation requirements mandated by regulators. By elucidating how procedural justice enhances legitimacy and drawing from user experiences with content moderation, the paper proposes a preliminary index of procedural justice values to be used as a metric and guidance for putting regulatory requirements into practice