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Protecting Data Privacy for Mobile Payments Under the Chinese Law: Comparative Perspectives and Reform Suggestions
Get PDFChina has become one of the largest mobile payment markets in the world. While mobile payments bring great benefits such as convenience, flexibility, and efficiency, they are not without risks. This article focuses on one of the major risks, namely the data privacy risk, which is in large part caused and exacerbated by the involvement of multiple players and the extensive collection of personal information. There were some difficulties in protecting data privacy under the traditional legal framework, which was developed in a piecemeal manner with relevant provisions scattered around many different laws. In response, China has been trying to consolidate and modernise its regulatory regime for data privacy to suit the needs of the new digital era. Over the past few years, China has made great efforts to enact new laws and regulations to delineate the scope of personal information, introduce the obligations for data controllers and processors, and incorporate the principles of the Fair Information Practices. However, there are some remaining concerns, including the ineffective requirements of consent and disclosure, the ambiguous principle of purpose limitation, and the limited applicability of the principle of data minimisation. In a quest for a more effective solution to meet the regulatory challenge and strike a proper balance between privacy protection and technological innovation, a comparative analysis is conducted with several other major jurisdictions in this area, including the United States, the European Union, Singapore and Hong Kong. This article proposes that China should 1) improve the requirements of consent and disclosure; 2) strengthen the application of the principles of purpose limitation and data minimization; 3) enact a specific law for data protection; 4) establish a unified law enforcement agency, a 5) enhance private and public enforcement
Does Fair Use Matter? An Empirical Study of Music Cases (forthcoming)
No full textCopyright law recognizes fair use as a general limitation. It is assumed that fair use provides breathing room above and beyond the determination of infringement to facilitate the creation of new works of expression. This conventional account presupposes that fair use matters—that is, fair use provides greater leeway to a defendant than the test of infringement. Despite its commonsense appeal, this assumption has not been empirically tested. Except for fair uses involving exact copies (for which infringement would otherwise exist), it has not been proven that fair use makes much, if any, difference in results. Indeed, in one sector, the music industry, defendants have avoided pursuing fair use as a defense in nearly all infringement cases (except parodies) decided under the 1976 Copyright Act. This fair use avoidance is surprising given that musicians now face a spate of lawsuits due to a predicament we call copyright clutter, which occurs when copyrights protect many sub-elements of many works in a field of creation, thereby making it difficult for people to create a new work in that field without facing exposure to copyright liability. If fair use provides breathing room, why do musicians avoid it? Despite the extensive literature on fair use, legal scholarship has yet to test if fair use really matters. This Article provides the first empirical testing of the significance of fair use as a defense. In an experimental study involving approximately 500 subjects, we found that fair use does make a difference: subjects found no liability more frequently under fair use than the test of infringement. And greater knowledge of music or law resulted in higher findings of no liability under fair use. These findings provide a better theoretical understanding of how fair use operates and practical information for litigants that calls into question the predominant strategy of musicians avoiding fair use as a defense. Such a strategy may result in greater findings of liability where fair use would have otherwise been found
You’re Hot Then You’re Cold, You’re Yes Then You’re No: How Inconsistency in the Courts Leaves Employers and Employees Vulnerable
Get PDFWhile federal labor and employment laws try to categorize employers and employees, the lines remain blurry. Via unhelpful definitions, inconsistent application or ever-changing tests, employers and employees are often left vulnerable under these statutes—the employer because it is not clear whether he is liable under the law, and the employee because it is not clear whether he is protected under the law.
In this Note, I discuss the Seventh Circuit’s recent case regarding an indirect employer and how to establish an employment relationship under the ADA. This Note suggests that the Seventh Circuit did not properly apply a five-factor test when analyzing this employment relationship, and in fact, the court should not have granted summary judgment for the defendant employer because there was a genuine dispute of material fact. Finally, this Note sheds light on the consequences of inconsistency in the courts when using several standards to establish an employment relationship
The Situation of Orphan Works under Different Jurisdictions
Get PDFThe article analyses the situation of orphan works solutions under several different international jurisdictions, examining each jurisdiction in turn. Various solutions for addressing the problem of orphan works are provided by the jurisdiction of each country, the most comprehensive scheme being offered by the law of the United Kingdom. The UK provides three types of solution: an exceptions-based model, compulsory licensing and extended collective licensing. The author demonstrates that as this problem largely has emerged with the proliferation of technology, some countries have not considered orphan works an issue serious enough to take steps to address. Some countries are still examining the situation and working on finding a suitable solution to the problem. Considering various factors affecting a country’s options, any chosen solution to the problem of orphan works would need to reduce the risk of a county being found liable for the use of these works
The Constitution Commandeth: Thou Shalt Not Protect the Same Subject Matter Under Design Patent and Trade Dress Laws
Get PDFFor many years and still currently, it has been assumed—and even expressly asserted—that it is perfectly permissible to “stack” various legal theories (concurrently or consecutively) to protect nonfunctional “designs” for products. This is despite infrequent but cogent arguments that the available theories, notably design patents and product design trade dress—both of which are based upon federal statutes—are not Constitutionally compatible due to at least the concept of Superfluity. The authors of this article carefully examine the origin, nature, and meaning of these two types of IP protections in the context of their two Constitutional bases—the Patent/Copyright Clause and the Commerce Clause—and conclude that, indeed, “stacked” protections are not Constitutionally permissible; the authors then recommend a workable solution which they dub, the “Kewanee Kompromise.
The Marks Rule Misses the Mark: How the Seventh Circuit Correctly Determined the Precedential Effect of the Supreme Court\u27s June Medical Plurality
Get PDFEach new decision added to the Supreme Court abortion jurisprudence confuses the standard of the right to abortion. Even when granting certiorari, the Supreme Court has consistently reaffirmed the fundamental right to abortion while continually altering the right to allow for new limits on an individual’s ability to obtain one, making the standard harder for the lower courts to apply and the circuits to be consistent. For example, the Supreme Court’s latest decision in June Medical v. Russo, the Supreme Court published a plurality decision making consistency and clarity in the constitutional right to access abortion nearly impossible. When the Supreme Court comes down in a plurality opinion, that opinion still has precedential effects. In Marks v. United States, the Supreme Court created the Marks Rule instructing lower courts to ascertain precedential effect in the narrowest common denominator of a plurality holding. However, using the Marks Rule to determine a controlling opinion has been deemed a “vexing task,” leaving many circuit splits in its wake. Using the Marks Rule to determine the controlling opinion in June Medical’s plurality is already plaguing lower court judges across the nation; circuits differ from holding that June Medical left the right to abortion unchanged to determining the plurality opinion overruled prior abortion precedent, creating variation and unreliability in access to reproductive rights by jurisdiction. The abortion debate has yet to hit its breaking point and state politics, as well as in judicial appointments
Democracy is Not a Spectator Sport : A Case for Necessary Judicial Intervention in Elections
Get PDFOrdinarily, federal judges should not alter election rules near an election in order to avoid voter confusion, thereby diminishing electoral participation. However, this principal should not apply in unprecedented times, especially while case numbers rise amidst of a novel global pandemic. Federal courts must intervene to prevent injustice in circumstances when the legislature is ill equipped to respond appropriately under time constraints, especially when public health hangs in the balance. The Supreme Court, in Anderson v. Celebrezze and Burdick v. Takushi, established the analytical framework to be applied to challenges to election laws which infringe on constitutional rights: courts must weigh the burden placed on the right against the state’s interests advanced by the restriction. Where, as was the case here, exigent circumstances resulted in severe infringement on citizens’ right to vote, federal judges must intervene because the judiciary is equipped to move more nimbly than the legislature when necessary. This Note argues the Seventh Circuit wrongly decided Democratic National Committee v. Bostelmann. Justice Rovner, in dissent, took into account the full landscape, applying precedent to the circumstances. The United States District Court for the Western District of Wisconsin carefully considered the effects of the pandemic on Wisconsin, heeded the Supreme Court’s warning in Purcell v. Gonzalez, appropriately applied the Anderson-Burdick balancing framework, and accordingly provided relief to ease the burden of the pandemic on Wisconsin voters. This note articulates the factors—met here—which indicate appropriate judicial action in advance of an election
