Top 10 Most Read Blogs of 2020

COPYRIGHT LAW

CUSMA Implementation

On July 1, 2020, the (CUSMA) officially came into force, replacing the North American Free Trade Agreement (NAFTA). Signed in 2018, the desired effect of CUSMA is to preserve existing trade relations between the three North American countries, and to introduce modernized provisions that address 21st-century trade issues. In particular, the builds upon the legal framework of standards in North America for the protection and enforcement of IP rights.Ìę

Regarding copyright and related rights, Canada is increasing the duration of its term for general copyright protection from 50 to 70 years following the life of the author. Canada will have a two-and-a-half-year transition period to realize this new measure. Additionally, the term of protection for performances and sound recordings will also increase from 70 to 75 years plus life. CUSMA will also increase protection for Rights Management Information (RMI), also known as digital watermarks. While Canada already imposes criminal remedies for altering or removing Technological Protection Measures (TPMs, or digital locks), the Agreement creates new criminal remedies for circumventing RMI. Organizations will have to be mindful when implementing these new provisions to ensure that their practices align with CUSMA’s new obligations.

Canadian Copyright Case Law

żìČ„ÊÓÆ” v The Canadian Copyright Licensing Agency, 2020 FCA 77

On April 22, 2020, the regarding a dispute between żìČ„ÊÓÆ” (“York”) and The Canadian Copyright Licensing Agency (“Access Copyright”), holding that the tariffs set against York by the Copyright Board are not mandatory, but dismissed York’s counterclaim regarding the fair dealing guidelines. Access Copyright had sued York for non-payment of tariffs, arguing that they are mandatory and enforceable against anyone who infringes upon a copyright owner’s exclusive rights. Following this decision, both parties filed for leave to appeal the FCA decision to the Supreme Court of Canada.

Tariffs
The FCA held that the tariffs set by the Copyright Board are not mandatory. Because York opted out of the tariffs in 2010, they are not enforceable against York. On this issue, the FCA stated, “Acts of infringement do not turn infringers into licensees so as to make them liable for the payment of royalties. Infringers are subject to an action for infringement and liability for damages but only at the instance of the copyright owner, its assignee or exclusive licensee.”

Fair Dealing
York argued that it was not accountable for any tariffs associated with the reproduction of materials because they met their “” and therefore constituted fair dealing pursuant to section 29 of . On this issue, the FCA found that the Federal Court made no palpable error in its analysis, concluding that even though copying followed the guidelines, this did not necessarily make it a fair dealing.

Continuing into 2021
On October 15, 2020, the Supreme Court of Canada granted leave to appeal. This eagerly anticipated decision will affect many of Canada’s educational institutions who opted out of paying tariffs and have also followed the Fair Dealing Guidelines discussed in this decision. Further, a Supreme Court decision in York’s favour will surely cause businesses who rely on similar tariffs to rethink their business model.

Wiseau Studio, LLC et al. v. Harper et al., 2020 ONSC 2504

On April 23, 2020, Justice Paul Schabas’ released his decision in the case of . Filmmaker Tommy Wiseau brought a claim against the defendants, alleging that their documentary, Room Full of Spoons, about Wiseau’s film, The Room, breached his copyright. In his reasons, Justice Schabas provides artists in Canada with an authoritative statement defining documentaries an allowable purpose under the Copyright Act’s fair dealing provisions, “to the extent that a documentary uses copyrighted material for the purposes of criticism, review or news reporting.”

The decision affirms fair dealing as a user’s right, as opposed to a defense to the copyright infringement alleged by the plaintiff, solidifying the balancing of rights and freedoms as a core purpose of the Canadian Copyright Act. In addressing the Copyright Act’s fair dealing provisions, the Court offers useful guidance to documentary filmmakers wishing to stay on-side with section 29 through an analysis of the factors outlined in . A more in-depth discussion can be found . As well, Justice Schabas’ reasons address the Copyright Act’s moral rights provisions, fundamentally finding that criticism or negative tones alone will not trigger a breach of an author’s right to the integrity of a work.

Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada 2020 FCA 100 & CMRRA-SODRAC Inc. v. Apple Canada Inc., 2020 FCA 101

On June 5, 2020, the Federal Court of Appeal released two decisions (2020 FCA 100 and 2020 FCA 101) which ruled on the applicability of the “making available right” (“MAR”) under s. s.2.4(1.1) of the Copyright Act. The FCA found that songwriters are not entitled to royalties when music is first posted online, but only after it has been downloaded. This decision overturns a 2017 ruling from the Copyright Board, which found that composers and songwriters are entitled to two royalties: first when it is made available under a streaming platform such as Apple Music or Spotify, and second when the song is downloaded or streamed.

By way of background, The Society of Composers, Authors and Music Publishers of Canada (“SOCAN”) administers the right to “communicate” musical works on behalf of copyright owners. It filed with the Copyright Board proposed tariffs for certain years for the communication to the public by telecommunication of works in its repertoire through online music services including Apple Music and Spotify. These tariffs are available when a musical work is “communicated.”

After SOCAN had filed its proposed tariffs, the Copyright Act was amended to include the MAR Provision, which reads as follows:

For the purposes of this Act, communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.

This raised the question of whether the mere making available of a work on a server for the purpose of later streaming or download by the public was a “communication” for which a tariff was payable. In 2017, the Copyright Board concluded on the basis of expert witnesses that the double royalty scheme is available.

Stratas J, writing for the FCA, overturned this conclusion and stated that the Copyright Board "skewed its analysis in favour of one particular result" and relied on "leaps of reasoning" that are incompatible with the precedent set out in the Supreme Court of Canada’s (SCC) 2012 Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada decision. In that decision, the SCC concluded that transmission over the Internet of a musical work that results in a download of that work is not a communication.

PATENT LAWÌę

The Impact of COVID-19 Legislation on the Patent Act and Patentee Rights

(“An Act respecting certain measures in response to COVID-19”) received Royal Assent on March 25, 2020.Ìę Included in this bill was the addition of section 19.4 to the which significantly changed the rights of patent owners this year. For instance, while section 19.4 allowed the to authorize the government’s use of previously patented inventions to respond to a public health emergency, the Commissioner’s new powers permitted authorization to be granted to other entities as well. In addition, there was no requirement for applicants (be they the government or otherwise) to inform the patentee in advance of applying for authorization to use its patent. This meant that patentees received no notice if an applicant applied to use its intellectual property. Instead, patentees only received notice if the Commissioner granted authorization to the applicant following their submission. Moreover, section 19.4 precluded patentees to an express right of appeal of the Commissioner’s authorization. Instead, patentees were left to rely on section 19.4(8) of the Act and had to apply to the Federal Court to prevent the government (or any applicant) from “making, constructing, using or selling the patented invention in a manner that [was] inconsistent with the authorization.”

While patentees seemingly received little benefit from the Patent Act's amendments mentioned above, the legislative changes offered some positive developments for patent owners. For example, pursuant to s.19.4(5), holders of the patent are compensated for government use, “taking into account the economic value of ‘the authorization and the extent to which they make, construct, use and sell the patented invention.’” Additionally, as of September 30, 2020, the Commissioner can no longer award the government with any authorizations, which effectively serves as an imposed limit on the Commissioner’s powers. While COVID-19 may arguably be captured by other provisions of the Patent Act (cf. s. 19 or s. 21), s. 19.4 clarifies the boundaries of government uses of patents for public health emergencies.Ìę

CIPO Issues New Guidance Document After Federal Court Rejects Problem-Solution Approach to Claim Construction

Following the 2020 Federal Court decision in , CIPO released a new to clarify patentable subject matter under the Patent Act. The court, and CIPO, endorsed the purposive construction approach to constructing claims set out in 2000 by the SCC in and . The new guidelines cover the framework to be followed by patent examiners while identifying certain elements of patent claims as essential. CIPO’s earlier pointed at undertaking claim analysis, which involved identifying the “proposed problem to the disclosed solution.” The Federal Court in Choueifaty clarified this problem-solution test as incorrect for claim construction.

The Federal Court held that a correct approach looks at the entirety of the specification and presumes an element as essential unless demonstrated to the contrary. Purposive construction attempts to give effect to the intentions of the applicant in determining the scope of the claimed monopoly.

This is particularly important for computer-implemented inventions. CIPO, in the , clarified that an algorithm that improves the functioning of the computer would constitute a single invention and is patentable subject-matter. However, the mere use of a computer to execute an algorithm remains nonpatentable subject-matter under subsection 27(8) of the . This update has brought much needed clarity to the subject matter eligibility issues in computer-related patents.

TRADEMARK LAW

Claims to Official Marks not a Complete Defence to an Infringement ClaimÌę

In February 2020, the Federal Court of Appeal upheld the Federal Court’s decision in , finding that public authorities cannot rely on relating to official marks as a complete defence against an infringement claim. At its most basic level, official marks allow public authorities to , even those that may not otherwise be registered as regular trademarks. Quality Program Services Inc. (QPS) brought a Federal Court claim against the Ministry of Energy (MOE) for infringing their “EMPOWER ME” trademark related to energy awareness, conservation, and efficiency services. The MOE had launched a website with the mark “emPOWERme” to educate Ontario residents about the province’s electricity system. In response to QPS’s claim, the MOE sought protection and public recognition of its mark as an official mark pursuant to which states that “no person shall adopt in connection with a business, as a trademark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for
 any badge, crest, emblem or mark
adopted and used by any public authority, in Canada as an official mark for goods or services.”

However, the Federal Court was not persuaded that s. 9 provided the MOE complete immunity from an infringement claim. Instead, it was recognized that the infringement rights of a trademark holder, such as QPS under , could not be ignored simply because a public authority has been given public notice of its adoption and use of an official mark, especially when that mark follows a registered trademark which could cause confusion between the two marks, as was the case here. The Federal Court of Appeal further that “a public authority that chooses to use a mark that is confusing to a registered trademark does so at its peril.” As a result of this case, we get more clarity and limitations to the confusing and all-encompassing world of official marks. While it is clear that official marks following an existing trademark do not automatically strike down an infringement claim, the official mark and the preceding trademark must be similar in some way to set off a trademark confusion analysis.

Lack of Use is Insufficient for Opposing a Trademark Application

In , the Federal Court affirmed the Registrar’s decision to reject Pentastar Transport Ltd’s opposition to Fiat Chrysler Automobiles (FCA) US’s trademark application for Pentastar. Pentastar Transport Ltd owns a registered mark Pentastar for its oil and gas services, whereas FCA US applied to register Pentastar for its vehicle engines. Pentastar’s ground of opposition is that FCA US did not possess a genuine intention to use Pentastar for its engines, which contravened s. 30(e) of the old Trade-Marks Act. As summarizedÌę, “opposition proceedings involve a two stage inquiry. First, the opponent bears an evidential burden to establish that the facts alleged to support the issue exist. If established, then the applicant bears a legal burden to show that its application does not contravene the provisions of the Act as alleged.” The Court upheld the Registrar’s factual finding that Pentastar did not adduce sufficient evidence as the factual ground of its opposition. The Court also agreed with the Registrar that “use” and “intended to use” were not synonymous. In this case, this ruling entails that even though FCA US had not started using Pentastar as a trademark on its engines, it did not follow that FCA US had no intention to use it in the future. In fact, there was circumstantial evidence (as summarizedÌę) indicating that FCA US indeed harbored the intention to use Pentastar as a mark for its engines.

United States Supreme Court Developments

In April 2020, the United States Supreme Court decided the case . The Court determined that even an innocent trademark infringer could lose its profits and that wilful infringement is not a pre-condition to a profits award. The Court came to this determination by interpreting which does not mention the condition of wilful infringement. Fossil was liable for $6.7 million in profits to Romag, for using counterfeit Romag fasteners in its manufacturing of leather goods.

In June 2020, the Court in held that a term styled “generic.com” is a generic name for a class of goods or services only if the term has that meaning to consumers. Booking.com sought to register a mark with the USPTO but was denied because “Booking.com” was not a generic name to consumers. Therefore, the term was not held to be generic. The USPTO analyzed the terms “Booking” and “.com” separately. This decision suggests that domain names may need to be marketed to consumers as such to be trademarked.

Trademark Law and Sports in 2020

With all its troubles, 2020 has also been an eventful year for trademark lawyers in sports. In February, a Maryland-based nonprofit Game PlanÌęÌęagainst Lebron James and his commercial associates, including Nike, ESPN, and Take-Two Interactive. Game Plan claims that Lebron and his associates had encroached upon its trademark rights by unauthorized use of the registered slogan “I am more than an athlete” to make profits. In April 2020, Michael JordanÌęÌęin China that had dragged on for eight years. China’s highest court ruled in favor of Jordan against a Chinese company which had been marketing its sports products under the brand name Qiaodan - a Chinese transliteration of Jordan - since the 1980s.

In September, soccer superstar Leo Messi’s legal teamÌęÌęEurope’s highest court that Messi should be granted the exclusive right to the brand name Messi. Other similar names, such as “Massi,” should be disallowed for commercial purposes to avoid confusing the consumers. Lastly, although the Washington Football Team (formerly, Washington Redskins) changed its name in 2020, it now runs intoÌę. As it turns out, many alternative team names have already been registered by a trademark squatter Martin McCaulay. Washington fans may need to wish for the new year that their team will receive a new name that neither infracts trademark law nor carries racist connotations.

Fashion Trends Followed by Brand Owners throughout the PandemicÌę

As it is said, every crisis brings new opportunities. While some members of the general public may have doctor-recommended masks in the early months of the pandemic, they have become a trend for upcoming years. As a result of this trend, big luxury brands tapped into this unchartered territory just after theÌęÌę in July. Luxury fashion companies are now monetizing their brand value through thisÌęÌęi.e., face masks and shields, which have become the new reality and necessity of everyday life. Fashion brands likeÌęÌęhave already filed applications for their trademarks in classes 9 and 10 with the USPTO and other countries for “Protective” and “Respiratory Masks.” In September,ÌęÌęfor its uniquely styledÌęToile Monogram print for itsÌęFace Shield, filed forÌę“protective face shields; protective masks; protective chin shields; [and] protective gloves” (class 9), and “face masks for medical use; Surgical masks; protective face shields for medical use; protective chin shields for medical use; [and] gloves for medical use” (class 10).ÌęÌę

On the other hand, , Nike, andÌęÌęmasks also lead the charts of most searched and purchased masks.ÌęSmall and high street brands are attempting to claim proprietary rights in these trademark classes because of the long-term monetary potential. The new fashion ornament brings in value, and the brand owners wish to benefit from damages in infringement and counterfeits cases. Counterfeits are also escalating on e-commerce portals, such asÌę. A Chinese company has filed a trademark infringement suit for its brandÌęÌęin the Illinois state. Furthermore, on December 14, 2020 theÌęÌęannounced an initiative to accept expediated examination requests for trademark applications for COVID-19 related goods and services, which include sanitary masks and other things. In view of this, we can predict anÌęÌęfrom such luxury and burgeoning fashion brands.ÌęÌę

Bricks and Mortar Presence No Longer Necessary to Establish Use of a Trademark

In the past, the Federal Court of Canada has been unclear as to the fate of travel-related services that do not have a physical presence in Canada, but seek to maintain their Canadian trademark registration through regular use. However, following the Federal Court of Appeal’s decision in , that fate has been clarified in favour of travel-related services. Since 2014, Miller Thompson has tried to expunge Hilton’s WALDORF ASTORIA trademark given that it did not offer physical WALDORF ASTORIA hotel-related services in Canada. As such, Miller Thomson commenced proceedings under s.45 of the Trademarks Act, which would require Hilton to show use of its WALDORF ASTORIA trademark during the three years prior to the proceedings, known as the Relevant Period.

But, on September 9, 2020, the Court of Appeal upheld the Federal Court’s decision that Hilton had demonstrated use of their WALDORF ASTORIA trademark during the Relevant Period. Among other evidence presented by Hilton, during the Relevant Period, Canadians could see the WALDORF ASTORIA trademark when visiting their website and could book reservations in several ways, including directly on the site. As well, Canadians generated $50 million in revenue for Hilton as a result of their stays at WALDORF ASTORIA hotels outside of Canada. Thus, the Court of Appeal summed up the as follows: “so long as consumers, purchasers, or members of the public in Canada receive a material benefit from the activity at issue, it is a service.” This means that online reservations and payment services for later stays outside of Canada are included under the meaning of “hotel services.” Furthermore, a brick and mortar hotel is no longer absolutely necessary to establish use. In fact, in the Court of Appeal’s conclusion, it stated that “the requirements for ‘use’ under section 45 of the Act must adapt to accord with 21st century commercial practices.” For other trademark owners facing the same issue as Hilton, the Federal Court of Appeal provided guidance on how to make a , including website metrics showing that Canadians access their services online and subsequently purchase services as a consequence of their mark being displayed.

Trademark Modernization Act of 2020 Passed

On December 21, 2020, Congress passed the . This bill was enacted to amend the 1946 Trademark Act and authorized third parties "." The bill also introduced aÌęÌęthat would allow any party to petition for the expungement of a registered trademark that is not commercially active. The goal of these amendments was to reduce the number of “” that were on the register despite not being in use, allowing a more productive, competitive commercial trademark market. These amendments are also speculated to affect the longevity of trademark registrations as trademarks become increasingly vulnerable to cancellation. The Trademark Modernization Act of 2020 will certainly continue to generate more discussion and result in changing practices in Canada.

Giuseppina (Pina) D’Agostino isÌęthe Founder & Director of IP Osgoode, the IP Intensive Program, and the IP Innovation Clinic, the Editor-in-Chief for the IPilogue and the Intellectual Property Journal, and an Associate Professor at Osgoode Hall Law School.

With contributions from IPilogue Editors:

Copyright:ÌęMeghan Carlin, Emily Xiang, Joaquin Arias, Sarah Raja,ÌęSaumia Ganeshamoorthy

Patents:ÌęDan Choi, Gurbir Sidhu,ÌęKhristoff Browning, Jin Xu,ÌęMadelaine Lynch

Trademarks:ÌęAdele Zhang, Aishwerya Kansal,ÌęJingcai Ying, Eloise Somera, Lauren Chan

Bonnie Hassanzadeh, Nikita Munjal, Sebastian Beck-Watt, and Alessia Monastero

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The conference started with a chance to network. There were then introductory remarks from co-chairs and . This was followed by a discussion with panelists (including Osgoode’s very own ) which touched on new developments for technology lawyers. More specifically, topics ranged from the impact of COVID-19, the “ancient” Personal Information Protection and Electronic Documents Act, and some aspirational goals for the profession.

The breakout session I chose to attend was titled, “Artificial Intelligence: Critical Updates on Contracting, IP and Ethical Issues.” My eyes were glued to the screen this session. In fashion with legal pedagogy, the session introduced a fact scenario for the speakers to analyze and this format is particularly familiar for ÌęÌęlaw students everywhere. Personally, the ethical issues resonated with my interests, especially with respect to . The speakers offered a number of models, tools, and analytic frameworks to break down these issues. The nuanced discussion by each speaker was not only intellectually stimulating, but it also sparked various new interests in legal practice areas.

A further notable talk directly confronted the applicability of technology to COVID-19 (titled, “Utilizing Technology, AI, Machine Learning and Neural Networks in the Fight Against COVID-19: Managing the Legal Risks”). This talk highlighted the importance of collaboration in this area of law – the speakers included an entrepreneur, a practicing lawyer, and a legal academic. It is particularly relevant to emerging issues in . The diverse perspectives offered new ways of looking at legal risk and the varying roles of those practicing in this area. Again, the takeaway for me was how complicated these issues can be, how novel the solutions can be, and how interdisciplinary this area of practice can be.

Day two began in much the same fashion. However, the plenary talk discussed the role of international laws on technology law in Canada and beyond. The interaction between innovative technologies and legal frameworks that grapple with them has been on my mind ever since I came across . International law poses fascinating challenges for domestic technology law, particularly as it overlaps with the booming field of international economic law.

The conference rounded off its sessions with a more practical focus. I was particularly fascinated by a breakout session titled, “Financing Start Ups in the New Normal.” Often, structural economic changes and a “new normal” give rise to a wave of entrepreneurial initiatives. I am excited to see how shifts may affect those practicing in areas of private equity and venture capital. More generally, what sorts of changes are in store for ? The following sessions suggested interesting policy changes from WFH to cybersecurity.Ìę

There were many more memorable moments that I neglected to mention. By and large, as a student, it was particularly meaningful to have the opportunity to network and chat with the leading titans practising in this area. Their warmth and collegiality are coupled with a genuine excitement and passion for this area of law.

Written by Dan Choi, a second year JD Candidate at Osgoode Hall Law School and an IPilogue Contributing Editor.

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The moral duty not to infect others can be wide ranging: preventing transmission of the flu to preventing transmission of HIV, for example. frames the issues as to “what extent do individuals have a moral obligation to avoid spreading disease?” He is particularly interested in the duty to accept influenza vaccines to protect the vulnerable, like the elderly or the chronically ill. It is easy to see how this argument applies to our current situation; our physical distancing and wearing of masks helps prevent the spread of COVID-19 and reduces the potential risks of harm to others. Even if a disease is not harmful to us – say, we happen to be – we would still have a moral duty to mitigate harm to others. We can understand this duty in terms of beneficence. This arguably includes a duty to get vaccinated, physical distance, wear masks, and install COVID Alert.

Still, as suggest, what is required by morality is not absolute, and there are other considerations to take into account. One trivial example of this is the common cold: “unless there is reasonable financial compensation, such as illness allowance, one cannot expect a sick person to stay at home for the sake of her colleagues." This general picture of morality, which understands morality in terms of “prima facie duties”, is most famously expounded by philosopher . The basic idea is that different moral duties (e.g. a duty of beneficence, a duty of justice, a duty of non-maleficence, etc.) can conflict with one another given our varied circumstances, and one single duty is not absolute. For instance, if the Kantian is faced with a murderer who inquiring about the location of your friend, the Kantian must obey the moral duty to tell the truth to the murderer; however, according to Ross, the duty to save your friend might “override” the duty to tell the truth. There are certainly problems of “” (or morality asking too much of us) if we understand our moral duty as mitigating any and all risks – even driving a car poses significant risks of harm to others, but risk-to-reward weighs in favour of driving. Nevertheless, the slight inconvenience of physical distancing, wearing masks, or installing is insignificant compared to .

provides an excellent analysis of the legal and ethical issues with the previous SARS outbreak. He frames the issue as a conflict between “the duty to protect the public, which is a collective good, and the individual rights of privacy and liberty,” particularly with regards to surveillance, isolation or quarantine, and restriction of movement. On the ethical side, we might turn to and ask how actions could be justified such that nobody could reasonably reject them. We could use voluntary measures rather than coercive ones, take “softer” approaches to , or make use of “.”

On the legal side, these issues around COVID-19 laws are a live question for constitutional jurisprudence. I foresee many academic articles around this topic, especially in the Canadian context with respect to balancing legitimate public health purposes with Charter rights and freedoms. In any case, we have an individual moral duty to physical distance, wear masks, and, in my opinion, install the . As Douglas Adams said, “The single raindrop never feels responsible for the flood.” It is important to be a good moral citizen and to do our part to contribute to our community, nation, and world.

(This blog post draws on a presentation given for a graduate seminar on Applied Ethics with Professor Claudia Emerson at McMaster University in 2017.)

Written by Dan Choi, a second year JD Candidate at Osgoode Hall Law School and an IPilogue Contributing Editor.

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Impartiality is often associated with a neutral, impersonal point of view, or an observer that is hypothetically free of subjective biases. The earliest proponents of these views were David Hume () and Adam Smith (). One dimension of impartiality is the concept of being impersonal, meaning dispassionate or indifferent. For instance, the good judge is impartial insofar as they are not swayed by emotions and do not factor in personal considerations. An angry judge should not deliver a harsher sentence to a defendant, nor should the judge deliver a more lenient sentence because the judge and defendant both enjoy jazz music.

Another related concept held up as a virtue for a judge is “neutrality.” (with the help of ) can help us understand neutrality by the distinction between the concepts of agent-relative and agent-neutral. The basic idea is that a reason for action is agent-relative if it makes some essential reference to a person, and it is agent-neutral if it does not. If I were a judge, I would act on agent-relative reasons if I delivered a harsher sentence because the defendant angered me (since my anger is a reason for me but nobody else). In this case, acting agent-neutrally is to act in a way in which agent-relative reasons are yet to be specified. The relationship between neutrality and impartiality is that neutrality is a necessary condition to impartiality, but neutrality on its own denotes a narrower idea of non-specificity.

Algorithms can be perfectly neutral because they are not subject to emotions or other physiological limits. suggests that algorithms can be used for sentencing in order to combat concerns of judicial arbitrariness and bias.Ìę The results could lead to greater justice by getting a bit closer to the ideal of proportionality in sentencing. That is, even if the algorithm is not perfect, it would do better than judges, especially with respect to racial bias. attempted something like this in the 1970s and 1980s, and it largely failed because judges trusted their own judicial discretion and intuitions over these algorithms.Ìę While there are legitimate concerns with introducing novel technologies, technophobia should not be an impediment to a more just legal system.

Still, the concerns related to taking the human element out of judgments have some substance. Leaving aside issues around implementation, one may wonder how impartial reasoning squares with . For instance, in morality, impartial reasoning is not always appropriate. In 1793, William Godwin imagines a scenario where one must choose to either save a chambermaid or Fenelon (the archbishop of Cambrai) from a fire. From an impartial standpoint, the clear outcome would be saving Fenelon, since he benefits thousands with his works. Even if the chambermaid was one’s own wife or mother, the choice would be the archbishop. This may seem like a morally repugnant result. Indeed, feminist ethics teaches us about the importance of and in morality.

While there are a number of issues around implementing algorithms to assist the judiciary, there is clear potential for addressing access to justice issues. For example, predictable sentencing outcomes could level the playing field in negotiations between the Crown and the accused, increase efficiency for judges, and assist lawyers in building a case. is already involved in “AI-powered platforms accurately predict court outcomes and enable you to find relevant cases faster than ever before.” With already beginning at the Supreme Court of Canada, I am optimistic about the next steps in operationalizing legal technology.

Written by Dan Choi, a second year JD Candidate at Osgoode Hall Law School and an IPilogue Contributing Editor.

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Now let’s imagine a world without vending machines. I see your candy bar and I offer you one dollar in exchange for it. You accept my offer, then I hand over my dollar and you hand over your candy bar. Transaction complete: everybody is happy and maybe I made a new friend – why would we ever need smart contracts? Well, not everybody is so friendly, and misunderstandings happen all the time. That is where we need contract law and the courts. Or, in the words of philosopher , “Covenants, without the sword, are but words
” Luckily, the sword we all have is the legal system; unfortunately, there’s a very long line to use this sword and it is expensive to swing it.

This is where smart contracts might have an advantage. Let’s imagine that I hand over my dollar, but instead of handing over your candy bar, you run away with my money. Now I have to go to court and ask for because you breached our contract. At the end of the day, I still might not get the chocolate bar. I am better off dealing with the vending machine.

Contracts can be thought of as a , but smart contracts are different from the typical contract in law (see for an excellent analysis on this topic). One peculiar divergence with smart contracts is that a breach is, in principle, impossible. At this point, the vending machine example can be confusing – vending machines break and often fail to dispense the candy bar because of some mechanical issue. Let’s now think a bit more abstractly about computer programs and code. A basic conditional statement for my morning alarm might look like this: “IF the time is 7 AM, THEN play the alarm, ELSE do nothing.” Now imagine that I promise to give you $1 if you give me a wakeup call tomorrow at 7 AM, or else, if you fail, I keep my $1. I can make this into a smart contract by locking away $1 (perhaps using ) and programming something like this: “IF you call at 7 AM tomorrow, THEN transfer to you $1, ELSE transfer to me $1.” Notice how neither of us can go back on our deal; it’s out of our hands, it’s impossible to change (see for further discussions on the legality of smart contracts).

The interesting upshot is that by making breach impossible, it eliminates the possibility of breaking the promise. Legal scholars debate the relationship between contracts and promissory morality. that contract law should be understood in economic terms, while others argue that contract law should or consistent with a Ìę However, in making breach impossible, smart contracts seem to sterilize the relational aspects of trust and shared projects, which to the institution of contracts in general.

I remember reading in my 1L contracts class for mitigation. In short, it’s about an employee in a dispute with their employer over a layoff and – despite the bad blood between employee and employer – the court concluded that the employee should have taken the employer’s subsequent offer of re-employment to mitigate damages. The Court seems to expect us to put our emotions aside. But people are not rational maximizers or cold automatons. Smart contracts seem like a step in this direction. While smart contracts are certainly more efficient and perhaps more reliable, their inflexibility may limit litigants to restitutionary remedies and pose further doctrinal challenges for and fairness.

Written by Dan Choi, a second year JD Candidate at Osgoode Hall Law School and an IPilogue Contributing Editor.

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The best way to start is by Bitcoin and explaining a few key definitions (underlined below).

Bitcoin is online money. But it’s special. Dollars are sometimes said to be backed up by gold, which means that we all agree that you can exchange the piece of paper for a certain amount of gold. (Note: this “gold standard” is a monetary system that was replaced by “fiat money” and only serves as a metaphor). Bitcoins are decentralized, which means it’s outside of the agreement that pieces of paper (or cheques or e-Transfers) have value and banks aren’t relied on to keep records of the balance in our checking accounts. This also means that there are no physical pieces of paper, rather, this system uses a blockchain. But how do I transfer currency to you without the pieces of paper?  One solution can be that we can all keep track of it. But if we all keep track of it, doesn’t that mean that anybody can change it? The honour system is good, but trust issues are greater. Blockchain solves this issue with a math problem (a ).

understands a blockchain as something “you can add data to and not change previous data within it” using a “mechanism for creating consensus between scattered parties.” They “do not need to trust each other but only trust the mechanism by which their consensus as arrived at.” The basic idea is that without the pieces of paper as money, there needs to be some other way of keeping track of how the money is moving. The solution is that you announce the transactions to everyone. All the transactions (me transferring to you, you transferring to a stranger, etc.) are clumped together in a “block” to add to the “chain” of other blocks. To add to the chain, “miners” have to solve the cryptographic puzzle, which takes a lot of computer power. If they arrive at the right solution, they can tell everyone that they have the right answer and everyone can verify it. Solving the problem is hard, but once a solution is announced, it can be easily verified. A new “block” is then added to the “chain” and everybody starts using the new blockchain. For their trouble, the solver gets some bitcoins.

As a form of currency, Bitcoin has to be limited in some way, or else it would be worthless. Thus, halving exists to limit the supply of Bitcoins entering circulation. Halving refers to the number of Bitcoins a miner receives being cut by half. This stops inflation from decreasing the purchasing power of Bitcoins. Prior to May 2020, miners received 12.5 Bitcoins, but after halving, they will only receive 6.25 Bitcoins. is programmed to occur every 210,000 blocks, and since a new block of transactions is completed roughly every 10 minutes, halving occurs roughly every four years. Fewer new Bitcoins means that the supply of Bitcoins will become even more scarce, which might have some interesting implications.

As I write this, two weeks after the 2020 halving, Bitcoin is down Historically, it often spikes in price for the next year or two, but it’s not clear if the halving is the cause. We should be careful of correlations and hasty speculations. Word already spread about the Bitcoin gold rush. Inexperienced investors have joined the party and changed the market. What are some things that might affect Bitcoin prices? A safe bet would be a new law affecting Bitcoins. Alternatively, a major economic event, like the current worldwide pandemic, also has the potential to impact Bitcoin prices.  

If you are thinking about investing Bitcoins, do your own research and understand the risks. Be cautious of predatory that take advantage of amateurs. For my fellow Canadians, take a look at the . Interestingly, Canadian banks aren’t so thrilled about cryptocurrency. For instance, does not allow the use of its credit card for the purchase of cryptocurrency  

What kind of world will we be in at the next halving? Like the price of Bitcoin, your guess is as good as mine. See you in four years.

Written by Dan Choi, a second year JD Candidate at Osgoode Hall Law School and an IPilogue Contributing Editor.

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