The Philippine Quarterly IT Law Journal :: Volume 3, Number 1

THE PHILIPPINE QUARTERLY THE OFFICIAL PUBLICATION OF THE

ARELLANO UNIVERSITY SCHOOL OF LAW

IT Law Journal E-LAW CENTER AND IT LAW SOCIETY

VOLUME 3, N UMBER 1

whats
Inside
THE PROPOSED ONLINE VOTING IN SINGAPORE
THE PROPOSED ONLINE VOTING by Carlyn Marie Bernadette C. Ocampo-Guerrero
1 IN SINGAPORE

2E DITORIAL

I
n a news article published 4. The names of the candidates, with their
on January 18, 2007, the Commission on pictures and affiliations, will be shown
5 TV HE VULNERABILITY OF INTERNET
OTING Elections (COMELEC) has given word that, to the voter after they have encoded
should Congress approve amendments to or typed in the right PIN code.
6 AL UTOMATED
AW
ELECTION SYSTEM
the Overseas Voting (OAV) Law to allow 5. As soon as they have cast their votes,
postal and online voting, it will test voting the voters will be given a printed receipt
DIGITAL COPYRIGHT by way of the internet only in Singapore in as proof that their votes have been
7 the Philippines midterm election in May. [1] registered at the Comelecs database.
12 TD HE L EGALITY
OWNLOADING MUSIC
THE INTERNET
FROM
OF

Commissioner Florentino Tuason Jr., By the use of this system of voting, instead
chairman of the Committee on Overseas of going to the embassies and consulates,
Absentee Voting, said that the process has the overseas Filipinos can vote in their
19 CV ORPORATE
IDEOCONFERENCING
to undergo a trial first, and Singapore is houses as long as there is an Internet
the most appropriate place for testing online connection, thereby saving precious time
20 IJ URISPRUDENCE IN CYBERLAW:
NTERNET CONFIDENTIALITY OF voting, because it has a well-developed and effort. [5]
CASES INVOLVING VIOLENCE
AGAINST WOMEN AND CHILDREN
information and communications
technology industry. [2] Furthermore he Consequently, if Internet voting in Singapore
WHEN THE P IN PRE-PAID MEANS adds: The reason why we chose is proven successful, the commissioner says,
21 PUNKED Singapore is according to our supplier and the same system will be introduced to other
our own assessment, its easy for them to countries with Filipino communities in the
23 MI OST VISITED PHILIPPINE DAILIES
AND TV NETWORKS IN THE
NTERNET
be educated, first through the website, then 2010 elections. [6]
by training. [3] Filipinos will be educated
YOUR IDENTITY IN A COLORED on Internet voting through local newspapers Manner of Award of Contract.
24 PRINTER PRINTOUT and Filipino groups in city-state. [4] The Commissioner Florentino Tuason Jr. said
system of online voting appears to be that the Office of the Solicitor General
practical due to financial and time approved the selection of Scytl.com as the
28 D .C OT ON
constraints as well as distance barriers that software provider even without going
our overseas workers are faced with. through the public bidding as the Hewlett-
35 W HAT YOU SAY IN CYBERSPACE
MIGHT INCRIMINATE YOU How the proposed system works. The
Packard subsidiary has proven track record.
The system being utilized has also
following are the steps to make voting online safeguards against cheating. [7] He said
38 . WWW ASIANLII.ORG
possible: that the bidding process could be bypassed
D ECLARATION ON FREE ACCESS 1. An online site for Internet voting will because that it is the hindrance towards
39 L TO AW
be provided by Comelec. expediting the whole process, Filipino
2. Immediately after the voter opens or groups in the Middle East, particularly in
40 AIP L
SIAN EGAL I NFORMATION
NSTITUTE L AUNCHED IN THE
HILIPPINES
clicks the site, a video will automatically Saudi Arabia, which has the largest Filipino
appear on screen to give detailed community and number of registered
S UPREME C OURT S E-L IBRARY instructions on how to proceed with the absentee voters, have been clamoring, if
LAUNCHED voting. not demanding, to be allowed to vote by
E -L AW E XECUTIVE D IRECTOR
3. Personal information or details will have mail and via the internet. [8]
INITIATES VIRTUAL LAW CLASS to be keyed in by each voter in order
to get a PIN (personal identification >> [ 3 ] Proposed Online Voting
THE PHILIPPINE STRATEGIC ICT number) code.
ROADMAP

1
 Editorial

A
fter a lull
of at least a year, a new issue of the IT
Law Journal is hereby published. Most
of the journal contributors in the past
years have recently graduated from
the Arellano University School of Law
and also recently took the Philippine
Bar exams. The primacy of such
academic pursuit provided for a
handicap for the continuing release of
the Journal last year.
On the issue involving copyright of
electronic files, the viewpoints of a
known e-law lecturer/practitioner in
Digital Copyright and a law student
enrolled in the Entertainment Law
course under Dean Mariano Magsalin
Jr. in The Legality of Downloading
Music From the Internet are
presented. Two other papers from the
said course are slated to be published
in the next issue.

Last 19 January 2007, upon the Developments relevant to IT law in

recommendation of the Atty. Jaime N.
Soriano, Executive Director of the e-
Law Center, the Arellano University
School of Law, through Dean Mariano
Magsalin Jr. and Mr. Florentino Cayco
III, appointed me as the Deputy
Executive Director of said Center. It is
an honor to be given such responsibility
and opportunity to help in the pursuit
of the purpose and goals of the Center
and of the school -- one of the goals
of which is the publication of this
Journal.
In this issue, the slated Philippine
national elections on 14 May 2007,
for national and local elective officials
except for the President and Vice
President, provides the Journal to tackle
The Proposed Online Voting in
Singapore, and its related article
The Vulnerability of Internet Voting.
The recently enacted Automated
Election System Law (Republic Act
9369) was also tackled.
Philippine jurisprudence are discussed
in Corporate Videoconferencing and
Internet confidentiality of cases
involving violence against women and
children. Articles written last year but
which were not published due to
circumstances articulated in the first
paragraph -- When the P in Pre-
Paid means Punked, Your identity
in a colored printer printout, and
Dot.con -- are finally published in
this issue. Interesting reads from Atty.
Jaime Sorianos website (www.soriano-
ph.com) are also included herein, such
as Most visited Philippine dailies and
TV networks in the Internet and What
you say in cyberspace might
incriminate you.
The featured website for this issue is
www.asianlii.org, the website of the
Asian Legal Information Institute. The
Arellano Law Foundation was chosen
as an Asian LII partner because of its
LawPhil Project, one of the countrys
leading website that provides free
access to useful Philippine legal
information. The launching of the event
Asian Legal Information Institute
Launched in the Philippines is
chronicled as to the latest about the
Center and the Society. Past
participations of the Center, which
were also featured, were the launching
of the Supreme Courts E-Library and
the participation in the forum involving
the Philippine Strategic ICT Roadmap.
It is also of great pride that the e-Law
Executive Director has initiated a
Virtual Law Class in his website,
apparently the first of its kind in the
country.

Editorial Board The Philippine Quarterly IT Law IT Law Society

Journal is the official publication of the e-
C HAIRMAN
A new set of officers was elected for
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1

Law Center and the IT Law Society of the

Atty. Jaime N. Soriano, CPA, MNSA Arellano University School of Law. It is
published quarterly.
M EMBERS
Carlyn Marie Bernadette C. Ocampo- Contributions to the Philippine Quarterly IT
Guerrero Law Journal express the views of their authors
Michael Vernon M. Guerrero and not necessarily the views of the Arellano
Christine A. Prado University School of Law.
For subscriptions, contact:
S PECIAL C ONTRIBUTOR
Consuelo L. Cruz THE PHILIPPINE QUARTERLY
It Law Journal
e-Law Center
2/F Heilbronn Hall
Arellano University School of Law
Taft Avenue corner Menlo Street
Pasay City 1300 Philippines
Volume 3, Issue 1 Tels. +63 2 404-3089, 404-3090, 404-3091
http://www.arellanolaw.net
2007. All Rights Reserved. itlawjournal@arellanolaw.net
School year 2006-2007 on 6 January
2006, during the ITLSs New Years
party. Christine A. Prado was elected
President, Kathleen Bentayen as Vice
President-Seminar, Jessica Belen as
Vice President-Publication; Sheila
delos Santos as Secretary, and
Kathrina Sulla as Treasurer.
E-Law Center
Michael Vernon M. Guerrero, former
president of the IT Law Society (2004-
2006) was designated as the Deputy
Executive Director of the e-Law Center
effective 19 January 2007.

2

<< [ 1 ] Proposed Online Voting
Abackground of Scytl proves its
credibility and competence in providing
electronic system---
Scytl is a software company which
focuses or specializes in
application-level cryptography. [9]
It is worldwide leader in the
development of secure e-voting/
e-participation solutions. It has
over 10 years of experience in
research and development in the
said field. When it comes to the
electronic voting industry, Scytl is
the company being referred to by
most people.
Scytl has developed Pnyx, a family
of products that enable all kinds
of electoral processes (elections,
referendums, consultations, labor
union elections, shareholders'
meetings, etc.) to be carried out
by electronic means with the same
level of trust, security and privacy
that exist in conventional paper-
based elections, and with the
advantages that electronic systems
can offer: accessibility, flexibility,
cost and speed in the tallying of
votes. [10] Since its beginnings,
Scytl has received numerous
international awards for its
innovative technology, including
the prestigious 2005 IST Prize
granted by the European
Commission to the best technology
companies in Europe. [11]
Absentee Voting
A Background. The Overseas
Absentee Voting (OAV) Law (Republic
Act 9189) was enacted on 13
February 2003 to enable the
disenfranchised Filipinos to have the
power to influence the way our
government is run, by allowing them
to exercise their right to suffrage. [12]
The same law was enacted pursuant
to the constitutional mandate provided
under Section 2 of the 1987 Philippine
Constitution that The Congress shall,
among others, provide a system for
absentee voting by qualified Filipinos
abroad. [13]
In the 2004 elections, The Department
of Foreign Affairs (DFA), Commission
on Elections (COMELEC) and the
Philippine Overseas Employment
Agency (POEA) supervised the conduct
of the 2004 overseas absentee voting.
About sixty five percent (65%) of
registered voters turned out to vote in
the more than 100 precincts that were
established in different parts of the
world. [14]
For the 2007 polls, according to
Comelec data, only a few OFWs from
Asian countries, Middle East, Africa,
America and Europe registered for the
elections. The pattern is the same in
other parts of the world. [15]
In order to strengthen the OAV law,
COMELEC is thinking of ways to make
the registration and voting process
easier for Filipinos who are scattered
all over the world. COMELEC has said
that the introduction of internet voting
is being contemplated in areas like
Hong Kong, Singapore and Italy where
it would cost about P25 million for
every 500,000 voters compared to
P52 million snail mail. [16]
The System of Electronic Voting.
We speak of electronic voting when
the casting of voting is carried out by
the voter through electronic means,
thus obtaining an end-to-end digital
vote. The use of paper is optional and
auxiliary. [17]
Electronic Voting can be classified in
two categories: Poll-site voting and
Remote Electronic Voting. Our
concern is the second category which
is the Remote Electronic Voting which
takes place when voters cast their vote
from any location with access to the
Internet via mobile telephone, PCs,
PDAs, etc. The methods used to identify
the voter are via digital signature,
biometrics, PIN codes, etc. [18]
The process of electronic voting in
elections, citizen consultations and/or
other private consultations offer various
advantages over their counterpart
based on paper. Any type of electronic
voting offers: greater speed and
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
accuracy in the tallying of votes,
greater savings in material costs in the
printing and distribution of paper
ballots, greater accessibility for the
disabled, flexibility in the modification
of ballot layouts, support of multiple
languages, better access to
information regarding voting options,
prevention of involuntary errors when
filling the ballot. [19]
When electronic vote is remote, in
addition to the previous advantages,
further benefits are provided, such as:
economies of scale as the size of the
electoral roll increases, greater
mobility and convenience for voters,
potential increase of participation in the
voting process. [20]
Implications of Electronic Voting.
The use of electronic voting (poll-site
or remote voting) presents new
challenges that should be taken into
account -- the digital nature of the
votes in themselves, without any paper-
based backup, the existence of a
complex technological infrastructure
between the voter and the electoral
authorities, the existence of people with
privileges in the voting systems, for
example, technicians with total access
to the systems they manage who could
manipulate the process. [21]
Types of Security Measures
Necessary in Electronic
Voting.The following are four levels
of technological security measures that
are required:
a. Network and systems
security - protection against non-
authorized access (firewalls, user
management...), protection
against DoS attacks, using fault-
tolerant and redundancy
mechanisms, Protection of
communications. [22]
b. Voters' remote authentication
- Digital signature, Biometrics, PIN
codes plus personal data, Other
systems. [23]
c. Assurance of the electoral
requirements, considering
the existence of technicians
with privileged access to the
3
 voting system. Voter privacy
has to be guaranteed. At the same
time, voters have to be properly
identified. The protection of the
digital ballot box against external
attacks (hackers) and internal
attacks (administrators of the
system) in order to guarantee the
following: secrecy of partial results,
integrity of the votes cast (neither
elimination nor modification),
prevention of addition of bogus
votes, voter self-verification of the
correct treatment of his/her vote
without allowing vote-buying or
coercion. [24]
d. Holistic audit capability As a
result, specific technological
solutions are necessary to
guarantee all the security
requirements in an electronic
voting process.[25] Pnyx.core, with
the result of 10 years of research
and development, provides an
innovative solution in this field. [26]
Reason for the Need for Standard
Security Measures. The standard
security measures provide control over
the access to the servers, can ensure
that all communications are secret and
protected between the web browser
and the server (by using SSL, for
example), and offer other generic
guarantees. [27]
Even if these standard security
measures are indisepensable in
electronic voting, they are not adequate
to guarantee the electoral
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
home in search for a better life, but
remain Filipinos at heart, when they
are allowed to exercise their right of
suffrage in the country where they
belong. Ideal it may seem, there still
has to be an implementing law passed
by Congress to make this vision come
into a reality.
In a very short telephone conversation
with Atty. Kabaitan Guinhawa
Valmonte, officer in charge of the
Committee on Overseas Absentee
Voting (COMELEC), she said that the
basis for implementing the Online
Voting System is none other than
Republic Act No. 9189 (An Act
Providing for a System of Overseas
Absentee Voting by Qualified Citizens
of the Philippines abroad,
appropriating funds therefore, and for
other purposes) and Section 52i of the
Omnibus Election Code (Batas
Pambansa, Bldg. 881). However, a
reading of the Republic Act No. 9189
does not explain or even mention about
providing for an online system of voting
for the overseas workers.
Section 52i of the Omnibus Election
Code cites the powers and functions
of the Commission on Election-- that
is to Prescribe the use or adoption of
the latest technological and electronic
devices, taking into account the
situation prevailing in the area and the
funds available for the purpose
It is only in the Proposed Amendments
to the Overseas Absentee Voting Law
appropriate software and
hardware technologies for such
purpose for submission of a report
thereon to the Joint Congressional
Oversight Committee.
Formal approval of the proposed
amendments to the OAV law by
Congress, not only in principle, is
indispensable; and specific guidelines
and implementing rules have yet to be
provided before the system can be said
to be feasible and practicable, taking
into account the cost of the system, the
security, reliability and until the legality
of the whole process. Till then, this
system should be put on hold because
of its premature implementation and
its lack of basis in law.
Endnotes
1. Philippines Plans to Test Online Voting
for Singapore OFWs. Julie Javellana-
Santos, Arab News <http://
www. arabnews.com/?page=4&section
0&article=91069&d=18&m=1&y=2007&pix=
world.jpg&category=World>
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. Ibid.
7. Ibid.
8. Scytl: Secure Electronic Voting. <http:/
/www.scytl.com/eng/acerca.htm>
9. A call to revisit and strengthen the
overseas absentee voting law. <http://
ettarosales.wordpress.com/2006/11/
08/a-call-to-revisit-and-strengthen-the-
overseas-absentee-voting-law/>
10. Ibid.
11. Ibid.
12. Ibid.
13. The System of Electronic Voting. <http:/
/www.scytl.com/eng/voto.htm>

requirements described in the previous (R.A. 9189), where it specifically 14. Ibid.
point. [28] It is also essential to use mentions the COMELECs 15. Ibid.
specific security measures and recommendation of the use of 16. Ibid.
application-level cryptography, to electronic mail, internet, or other 17. Ibid.
18. Ibid.
adequately address the risks associated secured networks in the casting of 19. Ibid.
with electronic voting. Pnyx.core, votes: 20. Ibid.
together with the know-how of Scytl, 21. Ibid.
enable electronic voting to be carried Sec. 18. Personal Voting Casting 22. Ibid.
23. Ibid.
out with the same assurance of security and Submission of Ballots. 24. Ibid.
and trust that can be found in the 25. Ibid.
customary paperbased electoral 18.10 The Commission 26. Ibid
processes. [29] shall continuously study, evaluate 27. Ibid.
28. Ibid.
and recommend the adoption of
Conclusion the use of electronic mail, internet,
or other secured networks in the
There is empowerment of citizens who casting of votes. It shall likewise
are thousands of miles away from develop and maintain the

4

THE VULNERABILITY
he Commission on
T
Elections (COMELEC) formally
announced plans to pilot test Internet
voting in Singapore that would allow
registered overseas Filipino workers to
electronically cast their votes during the
14 May 2007 midterm elections.
With the implementation of Internet
voting, Filipino absentee voters can
conveniently vote in any Internet
connected computers even at home,
in Internet shops, or through the
computers in Philippine embassies and
consular offices abroad, declared
COMELEC Commissioner Florentino
Tuason.
Here is how the system works
according to the COMELEC: voters will
have to log on to the Comelec website
and be given a personal identification
number (PIN) to be able to view a list
of senatorial candidates and party-list
organizations participating in the
elections. Once the voter clicks the
names of his chosen candidates, he
click a button to send this information
to the Comelec head office where his
votes will be automatically counted.
It makes sense to believe that the use
of computer technology in the electoral
process offers distinct advantages in
terms of ensuring the integrity, security,
and immediate outcome of the polls.
But given my modest understanding of
how the technology works, I believe
that the intended system could just be
a major tool to perpetuate electoral
fraud.
Electronic voting (or e-voting)
encompasses several stages of the
electoral process: voters registration,
casting of votes, and counting of votes.
Features
OF INTERNET VOTING
By Jaime N. Soriano
The system of e-voting may be done
on site with the use of electronic voting
machines or digital terminals or an
electronic public kiosk found in
authorized and designated polling
places or stations, which could be
offline or interconnected in a private
computer network.
E-voting can also be remote using the
Internet. This means accessing and
logging on to a designated site in
cyberspace using any available means
of Internet access to perform or
complete a poll transaction in a virtual
polling place or station, a website.
The exercise of suffrage, at least in
our jurisdiction, is a personal act. It
cannot be assigned or delegated except
in meritorious cases allowed by law,
i.e. Sec. 196 of the Omnibus Election
Code that permits the preparation of
ballots by illiterate or physically
handicapped voters by another person.
Remote e-voting or the use of the
Internet in counting and transmission
of votes may be a sound proposition
because it facilitates the timeliness,
reasonable accuracy, and integrity of
the poll results provided that adequate
network security is in place. But this
may not be true in Internet voting.
Even if the Internet voting provides and
requires for PINs, passwords, and other
authentication using personal data,
there is no assurance that the person
executing the poll transaction is the
registered voter himself. He can easily
pass on this security information to
another or worse to unscrupulous
candidates who bought his vote. The
set-up could even work well and better
for the vote-buying candidates because
in a manual voting the vote-buyer
would not have the actual opportunity
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
to see the ballots cast by the voter. In
Internet voting, payment for the vote
may be withheld if access by the
candidates cohorts is refused by the
system.
Perhaps, the only way to address this
concern is to use biometric
authentication such as fingerprints,
DNA or retinal patterns. But this would
require a separate and very expensive
software and hardware. And it is close
to impossible to expect on-line voters
to have access to them on election day,
unless the facilities for the biometric
technology are installed and made
available in government designated
polling places or stations - but then the
e-voting becomes on-site.
Through some connivance or
collusion, or utilizing the expertise of
hackers and crackers, it might be
easier to have virtual flying voters cast
their votes on election day. All that is
needed is to intrude into anothers
private identity or produce fictitious
personal identities and assign PINs,
passwords and other authentication
data for them to complete an on-line
poll transaction in favor of a candidate.
Of course, there are audit trails or
system that could address this
fraudulent act. But the process of
investigation and verification could be
more tedious and slow than the usual
manual voting system.
In Estonia, Internet voting was utilized
during the 2005 local elections
alternatively with the paper ballot. To
cast an electronic vote days before the
actual date of election, the voter needs
a computer with Internet access, his
nationally issued ID-card and a card
reader. On Election Day, the voter
>> [ 3 5] Vulnerability of Internet Voting
5

AUTOMATED ELECTION SYSTEM LAW
T
he Automated
Election System Law or Republic Act
No. 9369 was signed into law on 24
January 2007. The law amended
Republic Act No. 8436 that provided
for the automation of elections
supposedly starting from the national
and local elections of 1998. It
authorized the partial implementation
of the automated polls for the May
2007 midterm elections.
The law defined the automated
election system (AES) as a system
using appropriate technology which
has been demonstrated in the voting,
counting, consolidating, canvassing,
and transmission of election results and
other electoral processes. (Section 2
[1], RA 8436, as amended by RA 9369)
A paper-based election system
is defined, on the other hand, as a type
of automated election system that uses
paper ballots, records and counts
votes, tabulates, consolidates/
canvasses and transmits electronically
the results of the vote count, (Section
2 [7], RA 8436, as amended by RA
9369) while a direct recording
electronic election system is a type
of automated election system that uses
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
electronic ballots, records votes by
means of a ballot display provided with
mechanical or electro-optical
components that can be activated by
the voter, processes data by means of
a computer program, records voting
data and ballot images, and transmits
voting results electronically (Section 2
[8], RA 8436, as amended by RA
9369).
Under the said poll automation law,
each Board of Canvassers shall be
assisted by an information technology-
capable person authorized to operate
the equipment adopted for the
elections. (Sections 3 and 5, RA 9369,
6
Features
By Michael Vernon M. Guerrero
amending Sections 3 and 5, RA 8346,
respectively.)
The poll automation law amended
Section 6 of RA 8436 as to the
Authority to Use an Automated Election
System, and Section 7 as to the
Minimum System Capabilities of the
automated election system. New
provisions were inserted to provide for
the Communication Channels for
Electronic Transmission (Section 7, RA
8436 as provided by Sec. 8, RA 9369);
the Advisory Council and the Technical
Evaluation Committee (Secs. 8 and 10,
RA 8436), their functions (Secs. 9 and
11, RA 8436). As to the procurement
and maintenance of the AES itself, the
law amended the provisions of RA
6436 as the Procurement of
Equipment and Materials (Sec. 8, now
12), Continuity Plan (Sec. 9, now 13),
and Examination and Testing of
Equipment or Device of the AES and
Opening of the Source Code for
Review (Sec. 10, now 14). In light of
the automation, the provisions of
Official Ballot (Sec. 11, now 15), Ballot
box (Sec. 13, now 17), Procedure in
voting (Sec. 14, now 18), Closing of
polls (Sec. 15, now 19), Notice of
Designation of Counting Centers (Sec.
16, now 20), Counting Procedure (Sec.
17, now 21), Election Returns (Sec.18,
now 22), Canvassing by Provincial,
City, District and Municipal Boards of
Canvassers (Sec. 21, now 25), Number
of Copies of Certificates of Canvass of
Votes and their distribution (Sec. 22,
now 26), National Board of Canvassers
for Senators and Party-List
Representatives (Sec. 23, now 27), and
Congress as the National Board of
Canvassers for President and Vice
President (Sec. 24, now 28) were
amended. A new section 30 was
created as to "Authentication of
Electronically Transmitted Election
Results" (Sec. 25, RA 9369). These are
some of the amendments made by the
Automated Election System Law.
For weeks after the law s
promulgation, there was a heated
debate whether Republic Act 9369
should be implemented for the 14 May
2007 elections. As of 14 February
2007, the Commission on Elections,
and the Advisory Council,
recommended against automating,
even partially, the said polls. Lorenzo
Formoso, advisory council spokesman,
said the decision was "a question of
prudence rather than possibility," and
that "If poll automation is not properly
tested, it would be vulnerable to
hacking. A lot of bad things can come
out if we will insist on pilot-testing poll
automation." (Jaymalin, Mayen and
Marvin Sy, The Philippine Star. Its final:
No law automation, http://www.abs-
cbnnews.com/storypage.aspx?
StoryId=66829) A clearer basis,
however, for the non-implementation
of the law is Section 26, RA 9369
amending Section 25 (now 31) of RA
8436 (Stakeholder education and
training) which partly provides that
"The Commission shall, not later than
six months before the actual automated
election exercise, undertale a
widespread stakeholder education and
training program, through newspapers
of general circulation, radio, television
and other media forms, as well as
through seminars, symposia, fora and
other nontraditional means, to educate
the public and fully inform the
electorate about the AES and inculcate
values on honest, peaceful, orderly
and informe elections." The law, being
promulgated only four months prior
to the election, cannot possibly comply
with this mandate.

Introduction
I nternet technology
made it possible to distribute,
disseminate, share or exchange, or
capture various information and data
among all the computers
interconnected in cyberspace in digital
or electronic format. The technology
is a huge success that it has also
conquered the usual print and
broadcast media within its domain.
Digital information may be in the form
of text, graphics, sounds, video,
pictures, databases, or computer
programs. This information can be
easily uploaded to, downloaded,
transmitted, copied or used
electronically from, the Internet. With
the convenience and accessibility of
data in the network, people tend to
assume that they are within the public
domain and completely ignoring the
legal reality that those digital materials
are also within the ambit of copyright
protection.
Copyright is very much a part of the
Internet. Works posted in cyberspace
are considered published and therefore
qualify for copyright protection.
The Intellectual Property Code of the
Philippines defines communication to
the public and published works as
making the work available to the public
by wires or wireless means. This
definition provides the legal recognition
and basis of Internet copyright in this
jurisdiction.
The Essence of Copyright
Copyright should literally mean the
right to copy. But in legal parlance, the
application of the right is applied
Computing
DIGITAL COPYRIGHT
By Jaime N. Soriano
conversely by giving authors, artists
and others the right to exclude others
from using their works. Essentially,
copyright is the legal right of the author
to his intellectual creation or work.
Under Philippine law and following the
governing principles of the 1886
Berne Convention, copyright attaches
to a work from the moment of its
creation by the author without need of
further registration.
Obviously, the protection being served
by copyright is two-fold: the protection
of the author's general right how his
work is used, and the protection of his
economic rights for creating a valuable
work.
It is axiomatic that for the author to
enjoy copyright protection for his work,
he must satisfy three (3) requirements:
Originality. Simply stated this means
that the author did not copy the work
from someone elses work. While
originality is the essence of copyright,
it does not require that the work is
novel, unlike patents.
Creativity. An author can still claim
copyright for a work as long as he
created it himself, even after people
already created a similar work before
him. Even if only a part of the work is
original, the work could still satisfy the
requirement of originality because
what is required of the work to enjoy
protection is only a minimum amount
of creativity.
Hence, while reproduction in context
is obviously a mere copy and should
not enjoy copyright protection, if
something is contributed to the final
product and the variations between the
original and the copy is more than
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
trivial, the requirements of originality
and creativity are deemed satisfied.
Fixation. Under this requirement, it
is necessary that the original work is
fixed as a tangible medium of
expression. In short, the copyrighted
work must have presence that is
cognizable by the human senses. A
work like a story, a picture, a sound,
or a video is as much protected on a
disk or in cyberspace (written in HTML
for instance) in a similar fashion as
when it is captured in paper, tape, on
stage or similar medium of expression.
There is no iota of doubt that these
essential elements of what constitute
copyright exist in cyberspace works and
creation.
Exclusive Rights
Copyright carries with it the following
exclusive rights:
The Right to Privacy of Work. This
simply means that the author or creator
has the right to exclude all others or
the public from reproducing the work
in the form of a copy. Copyright
connotes the right to exclude, or not to
publish, the work. Websites that restrict
access to information of works
published in the Internet come within
the purview of this right.
The Right of Distribution. This
pertains to the right of the author to
distribute copies to the public by sale
or other modes of transferring
ownership or by rental or lease. This
is also known as economic rights.
First sale doctrine assures the author
or creator of the work that until he
parts with the ownership of his
creation, his privacy rights remain. It
7
 is only after the first sale that the new
owner can treat the work also as his
own.
Copyright however is not a license to
sell or distribute, for example, libelous
email or on-line messages. Works and
creation that invade the privacy rights
of others or violate obscenity laws may
not be published just because they
happen to be covered by copyright.
The uploading of works or making
them available on line in cyberspace
constitutes publication. But it does not
diminish or necessarily result in the
waiver of the authors economic rights
over the work.
The Right to Create Adaptation.
A work may be derived from an
original work through translation,
interpretation, arrangement,
dramatizations, fictionalization, films,
recordings, abridgment, condensations
or any other form in which a work may
be recast, transform or adapted.
Subsequent works, independently
created although appearing to be
similar to earlier works, do not
necessary constitute infringement.
The cut, paste, copy and save-as
function of the Internet makes it
convenient for users to adapt the work
of others as his own without realizing
that it could result in copyright
violations.
The Right to Performance and
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
Public Display. This pertains to the
right to perform a protected work in
public such as stage play,
dramatization, and public
performances. The multimedia
capabilities of the Internet facilitate the
expression of this right.
Idea versus Expression
Copyright covers only the specific form
or the particular manner in which
ideas or information have been
manifested, or the so-called "form of
material expression". It is not designed
or intended to cover the actual idea,
concepts, facts, styles, or techniques
8
embodied in or represented by the
copyright work.
Other intellectual property laws, like
trademarks and patents, may be the
basis though for legal restrictions on
certain reproduction or use where
copyright may not be available.
In copyright, what is subject of the
protection is the manner of expression,
and not the idea itself.
The Philippine Intellectual Property
Code is clear on this matter when it
provides that no protection shall
extend, under this law, to any idea,
procedure, system method or
operation, concept, principle,
discovery or mere data as such, even
if they are expressed, explained,
illustrated or embodied in a work; news
of the day and other miscellaneous
facts having the character of mere
items of press information; or any
official text of a legislative,
administrative or legal nature, as well
as any official translation thereof.
Works in the Public Domain
There are certain works that does not
enjoy copyright protection, in full or in
part, because these works are deemed
to be a part of public domain. These
works especially when published in the
Internet are free for everyone to use.
A work will be part of the public domain
if (a) the copyright protection expired,
(b) or the copyright is lost or never
acquired, (c) the work was published
before there was a copyright law, (d)
or the author dedicated the work to
public domain, i.e. Creative
Commons, Copyleft, or the GNU
Public License (also known as GPL)
(e) the work is not entitled to copyright
protection, i.e. government work, laws,
judicial decisions.
All official Philippine texts of a
"legislative, administrative, or judicial
nature" or any official translation of
those kinds of texts may not be
copyrighted and are in the public
domain. Aside from government
documents, no work of the Philippine
government, as well as the works of
government-owned and/or controlled
corporations, can be copyrighted
(images, documents, and the like).
However, prior approval is needed if
a government work will be used for
making a profit .
Types of Protected Work
The Intellectual Property Code of the
Philippines governs the following
copyrighted works:
1. Original Work consists of
original intellectual creations in the
literary and artistic domain
protected from the moment, and
by the sole fact, of their creation
irrespective of the mode and
manner of expression. In
particular, it includes the following:
(a) books, periodicals,
newspapers, pamphlets, letters,
articles and other writings; (b)
lectures, sermons, addresses or
dissertations prepared for oral
delivery, whether or not reduced
in writing or other material form;
(c) dramatic or dramatico-musical
compositions, choreographic
works or entertainment in dumb
shows; (d) musical compositions
with or without words; (e) drawing,
painting, architecture and other
works of arts including models or
designs for work of art; (f) original
ornamental designs or models for
articles of manufacture and other
works of applied art; (g)
illustrations, maps, plans,
sketches, charts and three-
dimensional works relative to
geography, topography,
architecture or science; (h)
drawings of a scientific or technical
character; (i) photographic works;
(j) audiovisual and
cinematographic works; (k)
pictorial illustrations and
advertisements; (l) computer
programs; and (m) other literary,
scholarly, scientific and artistic
works.

2. "Collective Work" means a work
such as a periodical issue,
anthology or encyclopedia, in
which the work in its entirety in
unmodified form, along with a
number of other contributions,
constituting separate and
independent works in themselves,
are assembled into a collective
whole, or a work that has been
created by two (2) or more natural
persons at the initiative and under
the direction of another with the
understanding that it will be
disclosed by the latter under his
own name and that contributing
natural persons will not be
identified .
3. "Derivative Work" means a work
based upon the work or upon the
work and other pre-existing works,
such as dramatizations,
translations, adaptations,
abridgments, arrangements, and
other alterations of literary or
artistic works including collections
of literary, scholarly or artistic
works, and compilations of data
and other materials which are
original by reason of the selection
or coordination or arrangement
of their contents. These works
shall be protected as a new work
provided that they do not affect
the force of any subsisting
copyright upon the original works
employed or be construed to imply
any right to such use of the original
work, or to secure or extend the
copyright in such original works.
Obviously, the Internet is a haven for
all of these types of work or intellectual
property creation. But in the process
many disregard the fact that the
derivative work is part of the exclusive
rights given to the author or creator of
the original work under his right to
create adaptation.
Copyright Limitations
The Doctrine of Fair Use: This is
one of the most important limits to
copyright. It permits some use of others'
works even without approval. While
the words "fair" or "reasonable" use
cannot be precisely defined, there are
a few benchmarks.
The fair use of a copyrighted work for
criticism, comment, news reporting,
teaching including multiple copies for
classroom use, scholarship, research,
and similar purposes, is not an
infringement of copyright.
Decompilation, which is understood to
be the reproduction of the code and
translation of the forms of the computer
program to achieve the inter-
operability of an independently created
computer program with other
programs, may also constitute fair use.
In determining whether the use made
of a work in any particular case is fair
use, the factors to be considered shall
include: (a) the purpose and character
of the use, including whether such use
is of a commercial nature or is for non-
profit education purposes; (b) the
nature of the copyrighted work; (c) the
amount and substantiality of the portion
used in relation to the copyrighted work
as a whole; and, (d) the effect of the
use upon the potential market for or
value of the copyrighted work.
The fact that a work is unpublished shall
not by itself bar a finding of fair use if
such finding is made upon
consideration of all the above factors.
Usage intended to advance public
interests such as criticism, education
or scholarship is generally favored
especially if only a little of another's
work is copied. Uses however that
generate income or interfere with a
copyright owner's income are not.
Fairness also means crediting original
artists or authors.
The use of another's work for
commercial purposes or for profit is
disfavored but not entirely forbidden.
Hence, while magazines and
newspapers are operated for profit,
they are not automatically precluded
from adopting the doctrine of fair use.
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
The principles behind fair use are
equally applicable in the super
information highway as a limitation to
digital copyright.
Moral Rights: Independent of any
economic right, the author of a work
has the right to require that the
authorship of the works be attributed
to him, in particular, the right that his
name, as far as practicable be
indicated in a prominent way on the
copies, and in connection with the
public use of his work; to make any
alteration of his work prior to, or to
withhold it from, publication; to object
to any distortion, mutilation or other
modification of, or other derogatory
action in relation to, his work which
would prejudice his honor or
reputation; and, to restrain the use of
his name with respect to any work not
of his own creation, or in a distorted
version of his work.
The author however may waive these
rights in writing, electronically or
otherwise, but such waiver shall be
ineffective where its effect is to permit
another to use the name of the author
with respect to a work he did not create
or to use the name of the author, the
title of his work, or his reputation with
respect to any version or adaptation
of his work which, because of the
alterations therein, would substantially
tend to injure the literary or artistic
reputation of another author.
Insofar as performers, as regards his
live aural performances or
performances fixed in a sound
recordings, he shall have the right to
claim to be identified as the performer
of his performances independently of
his economic rights.
The exclusive rights of performers and
producers shall not apply when the
work is (1) used by a natural person
exclusively for his own personal
purposes, or (2) used as short excepts
for reporting current events, or (3)
used solely for the purpose of teaching
or scientific research, or (4) under
conditions of fair use as defined
herein.
9
 When an author contributes to a
collective work, his right to have his
contribution attributed to him is deemed
waived unless he expressly reserves
it.
Moral rights were first recognized in
France and Germany before they
were introduced in the Berne
Convention. But not all countries
recognize moral rights as part of their
copyright laws. Notable among them
is the United States.
Hence, the application of the doctrine
of moral rights in the web may vary
from country to country and from
jurisdiction to jurisdiction.
Points of Copyright Attachment
under Philippine Laws
Copyright protection afforded by
Philippine law shall apply to:
1. Works of authors who are Filipino
citizens or have their habitual
residence in the Philippines.
2. Audio-visual works the producer
of which has his headquarters or
habitual residence in the
Philippines.
3. Works first published in the
Philippines
4. Works first published in another
country but also published in the
Philippines within thirty days,
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
irrespective of the nationality or
residence of the authors.
5. Works that are to be protected by
virtue of any international
convention or other international
agreement to which the
Philippines is a party.
6. With respect to performers, the
protection shall apply to (a)
performers who are nationals of
the Philippines; (b) the
performance should have taken
place in the Philippines, in case of
non-Filipino citizens; or
incorporated in sound recordings
10
or carried by broadcast where a
copyright is attached.
7. In sound recordings, the protection
applies where the producer is a
Filipino citizen or the sound
recording is first published in the
Philippines.
8. In broadcast, the protection shall
apply to broadcasts of
broadcasting organization the
headquarters of which are situated
in the Philippines or for broadcasts
transmitted from transmitters
situated in the Philippines.
These rules may be applied in works
found in the Internet particularly if
there is an issue as to the application
of the Philippine Intellectual Property
Code.
Duration of Copyright Protection
Original, derivative and
posthumous works: lifetime of the
author and for fifty (50) years after
his death.
Works of joint authorship: during
the life of the last surviving author and
for fifty (50) years after his death.
Anonymous or pseudonymous
works: for fifty (50) years from the
date on which the work was first
lawfully published unless before the
expiration of this period, the identity
of the author is revealed, the term as
above stated (for original, derivative
and joint authorship work as the case
maybe) shall apply. If the work is not
published, the fifty (50) years is
counted from the making of the work.
Works of applied art : twenty-five
(25) years from the date of making of
the art.
Photographic works: fifty (50) years
from publication of the work and, if
unpublished, fifty (50) years from the
making.
Audio-visual works including
those produced by process
analogous to photography or any
process for making audio-visual
recordings: fifty (50) years from date
of publication and, if unpublished,
from the date of making.
Calculation of term for the
above: the term of protection
subsequent to the death of the author
provided shall run from the date of his
death or of publication, but such terms
shall always be deemed to begin on
the first day of January of the year
following the event which gave rise to
them.
For the rights granted to
performers and producers of
sound recordings: (a) For
performances not incorporated in
recordings, fifty (50) years from the
end of the year in which the
performance took place; and (b) For
sound or image and sound recordings
and for performances incorporated
therein, fifty (50) years from the end
of the year in which the recording took
place.
For broadcasts: twenty (20) years
from the date the broadcast took place.
The extended term shall be applied
only to old works with subsisting
protection under the prior law.
In determining whether or not a work
in cyberspace with a point of
attachment to Philippine laws falls
outside copyright protection, and
therefore already part of the public
domain, a consideration of the
foregoing period is imperative.
Copyright Myths
Many Internet users have the general
tendency to assume certain beliefs that
are in a real sense a myth insofar as
digital copyright is concerned. Among
these erroneous perceptions are:
1. If the work does not have copyright
notice, it is not copyrighted.
2. If the user of the work does not
charge for distributing, copying or
selling the work, or if there is no

harm to the author, there is no
infringement.
3. Any amount of copying for news,
scholarship, education or
commentary for as long as there
is attribution falls within the fair use
doctrine.
4. Trademark is the synonymous with
copyright.
5. A work of fan fiction, or writing a
story using settings or characters
from anothers work, is derivative
work that is beyond the ambit of
copyright protection of the original
author or creator.
6. To have a copy of the work does
not necessarily mean that you have
the copyright, especially if there
is no commercial value.
7. Internet service providers are
liable for copyright infringements.
Due Diligence in Internet
Copyright
The fact that a work was posted in the
Internet and is free for anyone to
download a copy does not make the
work automatically as part of the public
domain.
In the usual case, there is a need to
ask permission from the site owner to
publish any materials, including
photographs, music, and artwork from
the site. Infringement of digital
copyright may occur when information
is used and distributed without
permission.
Pirating software, downloading music,
including an image or graphic in a
document or presentation, or
forwarding private electronic mails, are
common copyright violations unless
they fall within the purview of fair use.
Unauthorized use of these files might
result to prosecution and other legal
obligations including civil penalties,
damages and indemnification.
Users surfing for some materials from
a website that he would like to use
should search for information about
permissions to use, downloading,
redistribution or reproduction.
Many Internet sites have a page
devoted to terms of use or a privacy files, especially audio, video or data,
policy that explain how the user can
handle the materials obtained from the
site. It is best to use the materials in
accordance with the policies posted in
the website. In certain cases,
particularly when in doubt, it may be
best to contact the individual or
organization that holds the copyright
and obtain permission, electronically
or otherwise.
If the user is invoking the doctrine of
fair use in using the copyrighted
materials from the Internet, it is always
a sound policy to make an attribution
or acknowledgement of the source and
owner of the information in the users
own work.
The user must have a keen sense to
distinguish between what is part of the
public domain and which is not. It
should be remembered that even in
cyberspace, what is the subject of
copyright is the expression of idea and
not the idea itself. And it is always
prudent to check whether works of art,
literature, books, films, videos, or
photographs culled from the Internet
are already part of the public domain
with the lapse of their copyright
protection. Many times however this
task is tedious and getting permission
is still the easier route, something that
can also be obtained on-line and in
real-time.
Noted Legal Controversies in e-
Copyright
At present, there are no major law suits
involving infringement of Internet
copyright in the Philippines. But like
most of the other countries, the world
is keenly watching the development of
legal controversies involving digital
copyright especially in the United
States.
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
Of late, the legal issue of copyright
infringement was put into the limelight
with the development of a file sharing
technology called peer-to-peer or
P2P. Using P2P as connecting nodes,
people in the Internet network can
easily pass or share in real time content
for as long as they are in electronic
format.
The technology also allows multimedia
streaming of video and audio. Thus,
network sharing of music and movies,
particularly in MP3 and DivX formats,
has now become commonplace.
Long before the Internet became a
popular media, the US Supreme Court
in the leading 1984 case of Sony
Corporation of America vs. Universal
City Studios Inc. , more popularly
known as the Betamax case, held that
making individual copies of television
shows for purposes of time-shifting is
fair use and does not constitute
copyright infringement.
The Betamax decision effectively
provided a general test for determining
whether a device with copying or
recording capabilities ran afoul of
copyright law. This test has created
some interpretative challenges to courts
in applying the case to more recent
file sharing technologies available for
use on home computers and over the
Internet.
Napster, a company founded by an
18 year old computer science student,
provided a platform for users to upload
and download music files in
compressed digital format. Major
recording companies led by A & M
Records, Inc. were threatened and
immediately sued Napster for
contributory and vicarious copyright
infringement. Napster argued on the
principles of fair use. In 2001, the US
Court of Appeals (9th Circuit), in the
first major case to address the
application of copyright in P2P file
sharing, ruled that Napster could be
liable for contributory infringement
>> [36] Digital Copyright
11

THE LEGALITY OF DOWNLOADING MUSIC FROM THE INTERNET
Introduction
Part I. Copyright Laws and
Jurisprudence
Copyright Laws in the United States
I. The United States Copyright
Act of 1978
II. The Digital Performance
Rights in Sound Recording Act
of 1995
III. The Digital Millennium
Copyright Act of 1998
Copyright Laws in the Philippines
Other Copyright Laws
* The World Intellectual
Property Organization Treaty
(WIPO Copyright Treaty)
Consuelo L. Cruz was a student in the
Entertainment Law Class of Dean
T
Mariano Magsalin Jr. in Arellano
University School of Law during the first
semester of School year 2006-2007.
The following paper was submitted as
part of the requirements in said course.
This paper shall discuss legal issues
related to music transmission
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
specifically copyright infringement and
the probable liabilities of Internet
network providers and individual users
based on jurisprudence in the United
States. Part One gives an overview of
various copyright laws with a focus on
a copyright holders exclusive rights,
its exceptions and the concept of fair
use. Part Two concentrates on the key
legal issues and particularly tackles the
acts involved in downloading of music
from the Internet to determine whether
or not individual Internet users should
be held liable for copyright
infringement.
12
Feature
By Consuelo L. Cruz
O UTLINE
* The European Union
Directives
Jurisprudence
* Sony Corp. of America v.
Universal City Studios, Inc.,
464 US 417, 449 (1984)
* A&M Records Inc. v. Napster
Inc, [2001 US App LEXIS
1941, No. 990164001, slip
op. at 2206 (9th Cir., Feb.
12, 2001)]
* MP3 Case [UMG Recordings,
Inc. v. MP3 [92 F.Supp.2d
349 (S.D.N.Y. 2000)]
* Diamond Rio Case
(Recording Industry
Association of America v.
Diamond Multimedia Systems
[180 F.3d 1072 (1999)]
Introduction
he Internet is not only
a powerful source of information but
also a very convenient source of
entertainment. An Internet network for
anyone with a computer to access a
wide variety of information, and has
made file sharing of copies of audios,
videos, data or anything in digital
format available to Internet users. The
use of this file-sharing technology is
currently at the core of legal
controversies involving copyright
infringement since most of the files
shared by network providers using this
technology, are copies of popular
copyrighted music and movies. Some
of these networks -- such as Napster,
Kazaa, Grokster and Streamcast --
have been the subject of lawsuits and
have been found liable for contributory
infringement. In most of these cases,
individual Internetusers have been cast
as the direct infringer.
* MGM Studios Inc. v. Grokster
Ltd. [04-0480, 545 US 125,
S.Ct. 2764 (2005)]
Part II. Key Legal Issues
* What Acts are Involved
* Who Are Liable
* Infringement of Copyright Laws
* Should Users be Liable For Direct
Infringement?
* Users Not Specifically Identified
* Particular Infringing Acts Cannot
Be Determined
* Time-Shifting
* Suppression of Free Speech
* Current Developments
* The Philippine Setting
Conclusion
Part One
Copyright Laws and
Jurisprudence
The United States has one of the most
relevant statutes covering digital audio-
video transmissions and has the most
jurisprudence on copyright
infringement involving file-sharing of
music recordings. Other developed
countries such as the Netherlads,
France, Canada, and Japan are also
enacting and enforcing copyright laws
similar to that of the United States. The
following are Copyright Laws covering
music transmission in the Internet:
Copyright Laws in the United
States
I. The United States Copyright Act of
1978 (USCA)
It is relevant to understand some
fundamental concepts of the USCA to
which the exclusive rights of copyright

owners apply. Section 106 of the USCA
provides exclusive rights in copyrighted
works, such as: (1) to reproduce the
copyrighted work in copies or
phonorecords, (2) to prepare
derivative works based on copyrighted
works, (3) to distribute copies to the
public or transfer ownership, or by
rental, lease or lending, (4) in case of
musical works, to perform copyrighted
works publicly, (5) to display the
copyrighted work publicly by means
of a digital audio transmission. The last
exception is provided under the Digital
Performance Rights in Sound
Recording Act of 1995 which shall be
discussed below.
Section 101 of the USCA defines public
performance as: (i) to perform or
display a work at a place open to the
public or at any place where a
substantial number of persons outside
of a normal circle of family and its
social acquaintances is gathered; or
(ii) to transmit or otherwise
communicate a performace of a
display of the work to a place specified
by clause; or to the public, by means
of any device or process, whether the
members of the public capable of
receiving the performance or display
receive it in the same or in separate
places and at the ssame time or
different times.
Section 107 of the USCA provides for
an exception to the exclusive right of
copyright owners. This exception
applies to certain uses of copyrighted
works that are considered fair use
and do not require authorization of the
copyright owner. To qualify as fair use,
the following criteria must be complied
with: (a) the purpose and character of
the use, including whether such use is
of commercial nature and is for non-
profit educational purpose; (b) the
nature of the copyrighted work; (c) the
amount and substance of the portion
used in relation to the copyrighted work
as a whole; and (d) the effect of the
use upon the potential market for or
upon the value of the copyrighted work.
The law provides the purposes that may
be considered fair use, such as
criticisms, comments, news reporting,
teaching/instructions, and research.
II. The Digital Performance Rights in
Sound Recording Act of 1995 (DPRSA)
The DPRSA amends Section 106 of
the USC by adding public performance
in digital audio transmissions of sound
recording as an exclusive right of
copyright owners. It covers cases
where a compulsory license is
imposed, such as: (1) the compulsory
license affecting the mechanical
reproduction of musical works; and (2)
the compulsory license concerning the
digital transmission of music.
III. The Digital Millennium Copyright
Act of 1998 (DMCA)
The DMCA broadens the scope of
copyright protection to music on the
Internet. It provides for potection to
online service providers particular safe
harbors for certain types of works
relating to infringement if they follow
a particular procedure. Service
providers shall not be liable for
infringement under the following
circumstances: (1) if they act merely
as a data conduit, such as when an
MP3 file is e-mailed from one
subscriber to another; (2) in instances
of systems caching when a copy of an
MP3 is kept only for archival purposes;
and (3) the service provider must not
have the knowledge of an infringing
activity, or upon knowledge of such
infringing activity, he must take action
to block access to the material, and he
must not receive any financial benefit
for such activity. One aspect of the
DMCA was the establishment of a new
statutory license for the public
performance of sound recording.
The DMCA also added Streaming
Audio or listening on a streaming
mode and Webcasting, which is
essentially the re-transmission of AM/
FM radio signals through the Internet,
as non-infringing activities.
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
Copyright Laws in the Philippines
Philippine copyright laws pertinent to
digital music transmission is contained
under the section on Copyright Laws,
in Part IV of the Intellectual Property
Code of 1998 (IPC, Republic Act
8293). The law basically provides for
the same exclusive rights to copyright
holders similar to that in the US
Copyright Act. However, the right to
perform the copyrighted sound
recordings by means of digital audio
transmission, which was specifically
provided in the US Law, is not provided
for in the IPC. Relevant provisions
pertitnent to digital music transmission,
though inadequate, may be found in
Sections 172, 184, and 185 of the
IPC. Section 172, paragraphs (e) and
(f), provide that dramatic or
dramatico-musical compositions,
choreographic works or entertainment
in dumb shows and musical works, wth
or without words, are copyrightable.
Section 184 provides that acts, among
others, which do not constitute
infringement include: (1) the right of
performance once a work has been
made accessible to the public provided
that it is done privately and free of
charge or made strictly for a charitable
or religious institution; (2) the right of
reproduction and communication to
the public as part of reports of current
events, for teaching purposes, for
ephemeral recordings by broadcasting
organizations by means of its own
facilities and for use in its own
broadcast. Section 185 provides the
factors that are to be considered in
determining fair use which are
essentially the same as those provided
in the US Copyright Act.
Other Copyright Laws
Copyright Laws of some highly
developed countries commonly
provide the same exclusive rights to
copyright owners.
The Right of Reproduction. In
Canada, France, and the United
Kingdom, a reproduction on the server
from which users -- the public -- can
download music must be licensed. The
13
 Canadian Copyright Act gives an
adequate application of Reproduction
Rights by providing that a copyright
owner is granted a right of
reproduction in any material form,
which includes reproduction in digital
form, such as when a phonogram is
converted in a specific digital format
to be transmissible via Internet. A
second reproduction takes place when
the work is copied to a server. The user
who requests the musical work from a
website makes a third copy. [1]
The Right of Public Performance.
The Right of Public Performance is aptly
described in the WIPO Copyright
Treaty of 1996 as such right granted
to copyright owners to make available
to the public their works in a way that
the members of the public may access
these works from a place and a time
individually chosen by them. [2]
However, applications of this right vary.
In Canada, for example, posting a
copyrighted work on a publicly
accessible server is a restricted act. In
France, posting of a work on a website
must be licensed. Under US and UK
laws, a public performance occurs if
the user listens in streaming mode. [3]
Tansmission Rights. An application
of Conflict of Laws is relevant in
determining transmission rights. It must
be noted that transmission of music in
the Internet involves transborder
transactions. Each country would like
to control both servers located in its
territory and users in its territory
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
accessing material posted on foreign
servers. Copyright collectives similarly
want to be able to license transmissions
from servers in their territory and users
-- including end-users -- in their
territory. [4]
In the course of transmission of music
in the Internet, infringing events occur.
Reproduction of copies which may
occur at various stages of transmission
or the work may be performed publicly.
The World Intellectual Property
Organization Copyright Treaty
(WIPO Copyright Treaty). The
WIPO Copyright Treaty is an
14
international treaty on copyright law
adopted by member-states of the
World Intellectual Property
Organization in 1996. It provides for
additional protections for copyright
deemed necessary due to advances
in information technology. It ensures
protection for computer programs and
arrangement and selection of material
in databases. It provides authors of
works with control over their rental and
distribution and prohibits circumvention
of technological measures for
protection of works.
The WIPO Copyright Treaty is
implemented in the United States by
the Digital Millennium Copyright Act
of 1998, and in Europe by the
European Union Copyright Directives
of 2001.
The European Union Directives.
There are two directives in the
European Union: (1) the Directive on
Copyritght in the Information Society,
and (2) the e-Commerce Directive.
These directives, which serve as guides
to copyright laws of its member-states,
essentially provide the exclusive rights
of copyright owners such as the right
of communication to the public and
limitations on transmission rights. The
e-Commerce Directive particularly
specifies that the service provider is
subject to the copyright laws of the
country wher the service provider is
established. [5]
Jurisprudence
Sony Corp. of America v. Universal City
Studios, Inc., 464 US 417, 449 (1984)
This case, also known as the Betamax
case, was a decision by the US
Supreme Court which ruled that the
making of individual copies of
complete television shows for purposes
of time-shifting does not constitute
copyright infringement, but is fair use.
The Court also ruled that the
manufacturers of home video
recording devices, such as Betamax
or other VCRs (referred to as VTRs in
the case), cannot be liable for
infringement. The Court held that the
distribution of commercial product
capable of substantial non-infringing
uses could not give rise to contributory
liability for infringement unless the
distributor had actual knowledge of
specific instances of infringement and
failed to act on that knowledge.
The Courts decision established a
general test for determining whether
a device with copying or recording
capabilities infringe copyright laws.
This test has created some
interpretative challenges to courts in
applying the case to more recent file
sharing technologies available for use
on home computers and over the
Internet.
A&M Records, Inc. v. Napster, Inc [2001
US App. LEXIS 1941, No. 00-164001,
slip op. at 2206 (9th Cir, Feb. 12,
2001)]
Napster was the first widely-used peer-
to-peer online music sharing service
which allowed music fans to easily
share MP3 format song files with each
other. The Ninth Circuit Court upheld
the district court decision in holding that
the recording company, A&M Records,
presented a prima facie case of
copyright infringement entitling them
to a preliminary injunction. It found
Napster liable for contributory
infringement, having knowledge of
infringing activity but had allowed its
users to share music files despite
having the technical capability to
control such activity. In July 2001,
Napster shut down its entire network
in order to comply with the injunction.
On 24 September 2001, the case was
partially settled. Napster agreed to pay
music creators and copyright owners
a US$26 million settlement for past,
unauthorized uses of music, as well as
an advance against future licensing
royalties of US$10 million. [6]
MP3 Case [UMG Recordings, Inc. v.
MP3, 92 F.Supp.2d 349 (S.D.N.Y.
2000)]
The MP3 wensote provided for remote
storage of sound recordings. The
website was alleged to have copied

tracks from various commercial
websites. [7] Plaintiffs asserted that MP3
was liable for infringement of
reproduction rights by reproducing the
CD on its own server. The case was
settled for a purported sum of
US$20M. [8]
Diamond Rio Case [Recording Industry
Association of America v. Diamond
Multimedia Systems, 180 F.3d 1072
(1999)]
In this case, the court did not find
respondent liable by holding that
respondent did not fit in the description
of a digital audio recording device as
defined by the Digital Home Recording
Act. According to the statute, a digital
audio recording device is one that is
designed primarily for the purpose of
making a digital audio recording for
private use. Diamond Rio produced
computer hard drives that were
capable of storing various programs
that were unrelated to sound
recordings. [9]
MGM Studios, Inc. v. Grokster, Ltd.
(04-0480), 545 U.S. 125 S. Ct. 2764
(2005)
United States Supreme Court in this
case unanimously held that defendant
P2P file sharing companies Grokster
and Streamcast are liable for
contributory infringement for
marketing a file sharing software
device. Unlike Napster, Grokster
provides a decentralized software
device allowing direct peer-to-peer file
sharing withut passing through a
supernode. This made it impossible
for the service provider to monitor the
content of the files. The Ninth Circuit
Court, in applying the Sony Betamax
Decision, considered Groksters
decentralized architecture and
absolved it from liability. The US
Supreme Court, however, in holding
that the ruling in Sony v. Universal
Studios has been misapplied, held that
one who distributes a device with the
object of promoting its use to infringe
copyright, as shown by clear expression
or other affirmative steps taken to
foster infringement, going beyond
mere distribution with knowledge of
third-party action, is liable for the
resulting acts of infringement by third
parties using the device, regardless of
the devices lawful uses.
On 7 November 2005, Grokster
announced that it would no longer offer
its peer-to-peer file sharing service.
As part of a lawsuit permitted by the
MGM Studios v. Grokster Supreme
Court decision, Grokster was forced
to pay US$50 million to the music and
recording industries. [10]
Part Two
Key Legal Issues
What Acts are Involved. In
determining the key legal issues
relative to transmission of music in the
Internet, it is important to identify what
acts are legal and what acts are illegal.
The process of transmission of music
in the Internet is legally allowed and
downloading of music on the Internet
is not outright illegal provided it is done
within the parameters of the law. Legal
acts would include those that are
considered fair use and those which
are authorized or licensed. Fair use
includes use of copyrighted materials
for purposes of news reporting,
scholarship and research works,
teaching, comment and criticism
(Listening to music on a streaming
mode is considered fair use). Questions
of legality arise when music is
downloaded from the Internet. To
download means to receive
information or a file from another
computer via a modem, as
distinguished from upload which means
to send a file to another computer.
There are three distinct acts that
involves music transmission, the first
two of which precedes downloading:
(1) when music from a phonogram or
CD is converted into digital format to
be transmitted via the Internet; (2)
when the work is copied onto a server;
and (3) when the user who requests
the musical work from a website saves
the copy into his computer hard disk,
a CD or any musical device.
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
Who are liable. The
abovementioned acts are performed
by the following persons, respectively:
(1) the content providers; (2) the
service providers or access providers;
and (3) the end user, subscriber or
account holder.
Content providers determine whether
their website will contain musical works,
they select and post the works. They
have knowledge whether the works
they decide to post is protected or
unprotected. Clearly, a content
provider must obtain authorization from
copyright owners for posting protected
works. Without the required
authorization, they may be liable for
direct infringement.
Service providers provide the server
and the software to publish the musical
works. Access providers provide the
access to the Internet through online
connection and accounts. Generally,
as decided by US Courts in most cases,
a service or access provider is not
liable for direct infringement but may
be liable for contributory infringement
when they have knowledge that a
musical work is protected and they are
technically able to block the use of such
content.
The end user or account holder either
listens to musical works in a streaming
mode, or downloads the musical works
commonly known as MP3 files into his
computer. He is not liable provided that
his acts fall within fair use. If the end-
user records or saves the musical work
in his phonorecord or CD or in his
computer or other device, he must
obtain an authorization. Such
authorization is given by the
transmitting organization, the content
provider or the service provider who
are likewise authorized or licensed by
the copytright owner to allow recording
of his musical works. In case the
content or service provider is not
authorized to transmit protected
copyright works and is thus held liable
for infringement, should the end-user
be likewise held liable? This shall be
further discussed in this paper.
15
 Infringement of Copyright Laws.
The key legal issue involve in
downloading of music from the Internet
is copyright infringement or the
unauthorized use of copyrighted
material in a manner that violates one
of the original copyright owners
exclusive rights such as the right to
reproduce or perform the copyrighted
work, or to make derivative works. [11]
Copyright infringement in relation to
transmission or downloading of music
from the Internet was extensively
discussed in the case of Napster. As a
service provider, Napster provided a
serachable database of all users of
MP3 music files for which computers
are at the same time connected to the
Internet, allowing users to then seek
out and download files from other
users who are on the Internet at the
same time. In effect, Napster created
a temporary link to another computer
and stayed connected during the
downloading process. [12]
In this case, the US Ninth Circuit Court
gave three distinct types of
infringement: direct, contributory, and
vicarious.
There is direct infringement if the act
does not fall within fair use and the
copyright owners exclusive rights are
violated. The Court found Napster
users directly infringed the copyright
holders rights of reproduction and
distribution. Napster users who upload
file names to the search index for
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
others to copy violate plaintiff s
distribution rights, while Napster users
who download files containing
copyrighted music violate plaintiffs
reproduction rights. [13]
There is contributory infringement on
the part of Napster for encouraging
and assisting its users to access and
download MP3 music files.
Contributory infringement is present
when one who, with knowledge of the
infringing activity, induces, causes, or
materially contributes to the infringing
conduct of another. [14]
16
The Court also held that Napster was
potentially liable for vicarious
infringement. The Court used the term
vicarious in its broad sense and not in
the limited context of employer-
employee relationship. Vicarious
liability in copyright infringement
extends to a case where defendant
has the right and ability to supervise
the infringing activity and also has a
direct financial interest in such
activity.[15] Napster was found to have
gained financial benefit from
revenues dependent upon increases
in userbase, [16] and Napster had the
ability to supervise its users activities.
Napster allowed its users to access
MP3 files despite knowledge that
authorization is required and despite
having the technological means to
prevent such access if done without the
necessary authorization.
While Napster was found liable by the
Ninth Circuit Court, Grokster was
absolved from any liability by the same
court, although both have engaged in
the same activity as service or access
provider. In Grokster, the Court took
the cognizance of the technology used
by both defendants. Napster used the
Fastrack network protocol while
Grokster used the Gnutella protocol.
Both protocols served the same end
that is to enable Internet users to
exchange music files. However, the
Fastrack technology allowed file
sharing through a supernode which
would enable Napster to monitor the
file sharing activities of its users; while
the Gnutella technology did not have
such a control device and allowed the
direct interchange of files by its users.
But in both cases, the Court held that
Napster and Grokster users as direct
infringers.
Should Users be Liable for Direct
Infringement? In the Napster case,
the court held that Napster users are
not fair users. Likewise, in the Grokster
case, it was also held that users are
liable for direct infringement. In
Napster, the Ninth Circuit Courts
decision was based on the following
grounds:
1. That the purpose and character of
the use was not for personal use
but commercial in nature. A user
sending a file is not engaged in
personal use when such file is
distributed to another user who is
anonymous. Napster users get
something for free which they
would ordinarily have to buy.
2. That there was wholesale copying
of copyrighted works. There is fair
use only if the protected work is
used for sampling purposes, such
as when only a portion of the work
is copied; or for space-shifting
purposes such as when a user
downloads MP3 files in order to
listen to music he already owns
on audio CD or a portable player
for his own private use. Napster
users were allowed to download
a full and free copy of the
recording, which in turn, was
shared and passed on to other
users.
3. That the marketability of the
copyrighted work is impaired. The
fact that users may acquire copies
of the works for free results to
losss of sales for recording
companies, which likewise
necessarily harms the copyright
holders right to royalty fees.
Users not Specifically Identified.
Although the court gave an objective
analysis of fair use in its decision,
Napster users were not adequately
represented in court. Napster did
interpose affirmative defenses by
alleging in its answer that its users were
engaged in fair use of copyrighted
works by sampling and space-shifting.
These defenses, however, seemed
weak compared to the analysis given
by the court when it cited in detail the
factors involved in fair use and how
these were violated. However, since
not one Napster user was specifically
named or identified, and considering
that the main issue of the case is
whether or not the issuance of an
injunction is proper, being
underrepresented was immaterial.
The courts decision in holding Napster

users liable for direct infringement
gave basis to the finding that Napster
was liable for contributory infringement
because, as the court held, there can
be no contributory infringement if there
is no direct infringement.
The courts decision in holding users
as direct infringers seemed rather
unfair. Why not hold Napster as the
direct infringer? The users or the
persons who perform the act of
downlooading music from the Internet
are given the opportunity and given
free access to perform such an act.
When something is given for free, it is
presumed that the giver or the person
who allows access such as the service
provider has the right or the authority
to give it or to provide such service.
Thus, it is the right and responsibility
of the service provider to know whether
or not a certain work is copyrighted or
protected. The users who access a
service providers website and uses
such website to upload or download
music files has a right to presume that
the service provider has the authority
to allow such access. Thus, it is the
service provider who should be held
as the direct infringers, especially
Napster whose website which was
purposely set up to provide its users
access to MP3 music files.
Particular Infringing Acts Cannot
be Determined. Can users be held
liable for infringement at all? In the
Napster case, there are two types of
users: (1) those who upload or allow
their music files to be listened to by
other users; and (2) those who
download or listen to music files shared
by other users. The persons who
upload are presumed to have in their
possession the hard copy known as the
phonorecord or the compact disc (CD)
of the music recording or have saved
in their computer files or CDs a music
recording. While persons who
download search the websites music
data files, choose the title they wish to
listen to and copy the recording into
their hard disk or saves them in their
own CD. At first glance, it may seem
that the first type of user may be liable
for infringement. However, it must be
noted that users who download may
save music files and may also share
such files with other users. Thus,
uploaders may also be
downloaders, and therefore difficult
to distinguish which class should or
should not be held liable for
infringement.
Time-Shifting/Space-Shifting.
Another factor that should be
considered is the concept of sharing
music files. This must be analyzed in
conjunction with the copyright holders
right of public performance and the
right of reproduction. Two acts are
considered here: (1) the act of listening
in a streaming mode; and (2) the act
of copying or saving the music files in
a computer hard disc or CD.
When one listens in a streaming mode,
there is a broadcasting or rending
sounds that are immediately audible
at the time the user accesses the music
files. However, when the user merely
copies or saves the music file into his
computer hard disc or CD, without
listening to the music, there is only a
transmission of the music recording.
As mentioned in Part I of this paper,
and as described in Section 8 of the
WIPO Treaty, public performance
constitutes the making available to the
public of their works in a way that the
members of the public may access
these works from a place and at a time
individually chosen by them. In an
explanatory note about the Treaty,
WIPO stated that this covers on-
demand, interactive communication
throught the Internet. [17] Clearly, when
a work is broadcast on the Internet and
a user listens in streaming mode, there
is public performance. However, it
may be argued that when the user
merely copies or saves the music files
into a hard disc or CD, but does not
listen to the music, there is merely a
digital transmission of the sound
recording and there is no public
performance. It may be argued,
further, that when a user copies or
saves music files, he may listen to it at
a later time. This is equivalent to time-
shifting, which was held in Sony Corp.
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
v. Universal Studio (supra) as fair use.
[18]
A communication is deemed public if
it is intended for a number of persons,
unless such persons form a clearly
defined group and are interconnected
personally by mutual relations or by a
relationship to the organization of the
communication. [19]
Thus, for liability to attach, the following
requisites must concur: (1) a user or
users, must be specifically named or
identified; (2) he must be adequately
classified as an uploader or one who
has in his possession copyrighted music
files and has intentionally and willfully
transmitted such files via the Internet
and (3) there must be proof that such
user or users have knowledge or have
been fully informed that musical works
are copyrighted and proof that there
is intent to share music recordings for
commercial purposes.
Suppression of Free Speech. In
an Amicus Brief in support of the
reversal of the ruling against Napster,
the American Civil Liberties Union of
Northern California, as Amici Curiae,
claimed that the preliminary injunction
is overboard and constitutes a prior
restraint on constitutionally protected
speech, based on the following
grounds:
1. The court did not require pliantiffs
to identify the copyrighted works
but instead shifted such burden
upon Napster. Thus, Napster had
no choice but to prohibit the
exchange of files even though
some files were not copyrighted.
This resulted in the needless
suppression of protected speech;
2. By requiring the express
permission of the copyright owner
before any file is exchanged, the
injunction reverses the
consttitutionally mandated burden
to prove a particular speech is
unprotected before it is
suppressed, and thus imposes an
unconstitutional prior restraint on
protected speech; Napster users
17
 may not know whether or not a
music file is copyrighted, which
would deter them to exchange
speech at all;
3. The injunction threatens the
speech-enhancing decentralized
nature of the Internet. The Internet
has achieved the most
participatory marketplace of mass
speech that the world has yet seen.
xxx Court actions that enjoin online
speech may indirectly affect the
speech-enhancing architecture of
the Internet.
Current Developments
At present, the Recording Industry
Association of America (RIAA) is
actively pursuing a string of lawsuits
against users or individuals who have
Internet access accounts, and who have
engaged in peer-to-peer file sharing.
Some of these lawsuits, however, were
dismissed based generally on grounds
of insufficiency of the complaint for
failure by RIAA to specifically identify
particular infringing acts sufficient to
establish probable cause to hold
defendants liable for direct
infringement and lack of evidentiary
basis. Some pending cases have been
challenged questioning the amount of
damages alleging unconstitutionality on
this ground. [20] However, RIAA
continues to issue subpoenas and file
lawsuits against hundreds of Internet
users and thousands of service
providers, and continues to achieve
substantial settlement so far. [21]
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
The entertainment industry in the
United States is pushing Congress to
approve a bill that could send
thousands of Internet music and movie
downloaders to jail, but the legislation
faces opposition from groups that say
it would unfairly punish consumers.
The bill also would criminalize using a
video recorder to copy films while they
are still in the theater, and allow the
Justice Department to file civil lawsuits
against song-swappers. [22]
18
The Philippine Setting
In the area involving issues of copyright
infringement on digital music
transmission, the Philippines is a
neophyte as compared to the
developments in the United States and
Europe. There is only one statute, the
Intellectual Property Code of 1998
(Republic Act 8293) that enforces
intellectual property and copyright laws
in the country. Most jurisprudence and
litigations pending in Courts are those
involving infringement of trademarks,
trade names, patents and copyright of
consumer and technological products.
Jurisprudence on copyright
infringement in digital music
transmission is yet to be realized.
There is at present a strong drive to
enforce intellectual property laws with
the formation of the Pilipinas Anti-
Piracy Team, composed of the National
Bureau of Investigation (NBI), the
Optical Media Board (OMB), the
Philippine National Police (PNP), and
the Business Software Alliance (BSA).
The anti-piracy campaign is directed
at trademark infringement and
involves the confiscation of products
bearing the labels of well-known
international brands.
In the case of copyright involving
musicians, songwriters, and publishers,
an organization known as the Filipino
Songwriters, Composers, Authors and
Publishers (FILSCAP) ensures that its
members benefit from their copyrights.
FILSCAP sees to it that public
performance licenses and music
royalties are adequately paid by music
users like broadcasting companies,
commercial establishments and
telecommunication companies. It
expects a rise in the earning potentials
of composers and songwriters
especially with music being used as cell
phone ringtones, in mobile karaokes,
and when digitalized compositions are
being downloaded as full songs via the
Internet. [23]
With the developments in digital
technology, the IPC is inadequate in
protecting the rights of copyright
holders and vague on violations in the
online medium. At present there are
two pending bills in the House of
Representatives that seek to reform the
IPC. These bills, authored by
Representatives Imee Marcos and Jose
Clemente Salcedo, seek to give
performers, record producers, and
broadcasters the same right as authors
of artistic and literary works. [24]
Authorities are now holding
consultations with concerned parties as
a prerequisite to the drafting of a
National Intellectual Property Policy
Strategy which aims to outline bills
needed to strengthen government and
other bodies that protect and promote
public awareness of intellectual
property. [25]
Conclusion
At present, no individual user who has
downloaded music from the Internet
has been held liable for direct
infringement. In the United States,
although recording and movie industry
groups, such as the Recording Industry
Association of America (RIAA) and the
Movie Producers Association of
America (MPAA), are aggressively
issuing subpoenas and filing lawsuits
against individual users on the strength
of the rulings in Napster and Grokster
and under the Digital Millenium
Copyrights Act (DMCA), no Internet
user has been formally accused.
It would be very difficult for the RIAA
and the MPAA, though, to pursue these
lawsuits primarily because of its limited
capability to specifically identify these
users and provide details of how, when
or where the alleged infringement took
place. Secondly, there are civic and
business groups that are actively in
defense of Internet user. Civic groups
invoke the constitutionally protected
right of free speech and expression
while business groups especially those
in the information technology have
their business interests to protect.
It seems, however, that all these legal
actions have yielded favorable results
>> [37] Downloading Music

CORPORATE VIDEOCONFERENCING
I n this age of modern
technology, various communications in
the field of education, medicine and
health and even in business
undertakings may be made through
teleconferencing. As a consequence
of high speed internet connectivity,
personal video teleconference systems
based on a webcam, personal
computer system, software
compression, and broadband internet
connectivity has become more
economical for the general public. It
provides students an opportunity to
learn by participating in a two-way
communication program. It is an
effective tool for telemedicine and
telenursing applications with respect to
diagnosis, consultations, transmission
of medical images and others. It
enables individuals from different
locations to effectively conduct
business transactions and meetings on
short notice.
What is teleconferencing?
It may be said that teleconferencing is
an interactive group communication
through an electronic medium. It
brings people together although they
are in different locations. There are
three types of teleconferencing,
namely:
First, videoconferencing, also
known as video teleconferencing,
which is a set of interactive
telecommunication technologies
which allows two or more locations
to interact via two-way video and
audio transmission simultaneously.
Second, computer conferencing,
which is the printed-
communication through keyboard
materials.
Computing
By Christine A. Prado
Third, audio-conferencing-verbal
communication through the
telephone with the optional
capacity for telewriting or
telecopying.
Indeed, teleconferencing is a high-
quality substitute to face-to-face (FTF)
meetings. It has been found to be
beneficial business undertakings and
corporate governance. People who
wouldnt normally attend a distant FTF
meeting can participate. Follow-up to
earlier meetings can be done with
relative ease and little expense.
Socializing is minimal compared to an
FTF meeting; therefore, meetings are
shorter and more oriented to the
primary purpose of the meeting. Some
routine meetings are more effective
since one can audio-conference from
any location equipped with a
telephone. Communication between
the home office and field staff is
maximized. Severe climate and/or
unreliable transportation may
necessitate teleconferencing.
Participants are generally better
prepared than for FTF meetings. It is
particularly satisfactory for simple
problem-solving, information
exchange, and procedural tasks.
Group members participate more
equally in well-moderated
teleconferences than an FTF meeting.
However, other private corporations
opt not to hold teleconferences
because of technical failures with
equipment (including connections that
are not made), unsatisfactory for
complex interpersonal communication
(such as negotiation or bargaining),
impersonal and less easy to create an
atmosphere of group rapport, lack of
participant familiarity with the
equipment, the medium itself, and
meeting skills, acoustical problems
within the teleconferencing rooms,
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
difficulty in determining participant
speaking order; frequently one person
monopolizes the meeting, greater
participant preparation time needed,
informal, one-to-one, social interaction
not possible.
Board meetings
Teleconferencing: Law
by
and
Latest Jurisprudence
As technology significantly brings
expediency and convenience with local
and international undertakings, we are
confronted with its admissibility in local
courts with regards to the validity and
legitimacy of cases such as in board
meetings wherein the law requires that
the directors or trustees and officers
to be elected shall perform the duties
enjoined on them by law and the by-
laws of the corporation. Unless the
articles of incorporation or the by-laws
provide for a greater majority, a
majority of the number of directors or
trustees as fixed in the articles of
incorporation shall constitute a quorum
for the transaction of corporate
business, and every decision of at least
a majority of the directors or trustees
present at a meeting at which there is
a quorum shall be valid as a corporate
act, except for the election of officers
which shall require the vote of a
majority of all the members of the
board.
As set in the case of Expertravel Tours
versus the Court of Appeals, Korean
Airlines, a foreign corporation doing
business in the Philippines, through Atty.
Aguinaldo, filed a complaint for the
collection of sum of money against ETI.
The case involved whether the board
meeting held through
videoconferencing was valid with
corporate directors located in another
country and a resident agent and
19
 general manager located in the
Philippines even without evidence to
show its existence. Though the
Supreme Court did not invalidate the
board resolution passed through the
said board meeting, the Court was not
convinced that a meeting through
videoconferencing indeed was held
and that the resident agents and its
general manager in the Philippines
actually participated in the said
meeting. The allegations failed to
establish the identity of Atty. Aguinaldo
as the corporations resident agent and
was duly authorized to sign the
verification and certification of non-
forum shopping in behalf of the
corporation. Antother was that the
corporation nor members of the board
meeting did not have a copy of the
minutes of the said meeting negating
the possibility that there was indeed a
board meeting through
videoconferencing that took place.
Guidelines Promulgated by the
Securities and Exchange
Commission for the Use of
Teleconferencing in Board
Meetings
Thus, the Securities and Exchange
Commission issued Memorandum
Circular No. 15 to set guidelines for
board meetings of domestic and
INTERNET
INVOLVING VIOLENCE AGAINST WOMEN AND CHILDREN
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
This section will be a regular feature of the
journal to highlight significant cases decided
in the Philippines and in foreign jurisdictions
relating to information technology.
I
n an En Banc
decision dated 19 September 2006
in the case entitled: People of the
Philippines vs. Melchor Cabalquinto,
G. R. No. 167693, the Supreme
Court resolved to refrain from posting
in its Internet Web Page the full text of
decisions in cases involving child sexual
abuse and declared that . . .
20
foreign teleconferencing or
videoconferencing.
The Secretary of the meeting has the
responsibility to safeguard the integrity
of the meeting, to find good equipment
and facilities, to record the proceedings
and prepare the minutes of the
meeting, to store the tape recordings
and other electronic mechanism used
thereof as part of the corporate
records.
It shall be the duty of the Secretary to
send out notices of the meeting to all
directors as set in the corporate by-
laws. The notice shall contain the
inquiry with regard to the ability of a
director to attend a particular meeting
physically or through teleconferencing
or videoconferencing, the contact
numbers of the staff whom the director
may get in touch with, the agenda of
the meeting, and all necessary
documents covering the meeting.
In case teleconferencing or
videoconferencing has been chosen,
the director concerned shall notify the
Secretary at least five days prior to the
scheduled meeting. The latter, in turn,
shall notify the other directors
concerned, keep the records of the
details and confirm and note the same
as part of the corporate minutes.
Jurisprudence in CyberLaw
CONFIDENTIALITY OF CASES
By Jaime N. Soriano
henceforth, the Court shall withhold
the real name of the victim-survivor and
shall use fictitious initials instead to
represent her. Likewise, the personal
circumstances of the victims-survivors
or any other information tending to
establish or compromise their
identities, as well those of their
immediate family or household
members, shall not be disclosed.
(italics supplied)
The case was taken by the Supreme
Court as an opportunity to adopt the
Absent these, it shall be presumed that
the Director has chosen to physically
attend the board meeting.
At the meeting, the Secretary shall
make a roll call and every director shall
state their full name, location and
confirm that he can completely and
clearly hear the other directors, the
fact that he has received all materials
needed for the meeting, and specify
the type of device used. After which,
the Secretary will certify the existence
of quorum. All participants are
required to identify themselves before
speaking or in objecting to a vote with
regard to their discussion. Otherwise,
it is the duty of the Secretary to specify
the speaker.
The Secretary shall require all directors
in the meeting to sign the minutes to
release all doubts on matters taken up
during the meeting.
Conclusion
The legal recognition of the SEC and
the Supreme Court of Video-
teleconferencing as an effective tool
to pursue corporate functions is most
welcome. Possibilities increase when
the law embraces technology, and
allow non-traditional avenues to
achieve goals, including economic ones.
judicial policy in reply to a letter of a
mother of a child abuse victim
addressed to the Chief Justice
expressing anxiety over the posting of
full text decisions of the Supreme Court
on its Internet Web Page. The mother
argued that confidentiality and the
best interest of the child must prevail
over public access to information and
pleaded that her daughters case, as
well as those of a similar nature, be
excluded from the Web Page.
>> [36] CyberLaw Jurisprudence

WHEN THE P IN PRE-PAID MEANS PUNKED
o n g r a t u l a t i o n s !
C
Pres.GMACHRTY
Sim#have WON! W=680,000
Thousand DisDay 10/04/05,DTI
with phone
+639216727858 on 4 November
FOUND.Ur
PRMT#.0010 > 4 more info? Call now!
Sec.LARRY C.AGUIRRE. texted sender
2005. Tempting as it may seem, a lot
of questions come into mind, and
they212 start with the spelling of
number
Congratulations!, the grammar of
have WON!, the inconsistency of
DisDay 10/04/05 and the actual date
4 November 2005, and the vagueness
and implausibility of DTI
PRMT#.0010. Then the questions
continue to Is it not a wastage of
corporate assets if a charitable
foundation would give out money to a
certain person without any
qualification, except that the latter is a
SIM (Subscriber s Identification
Module) holder? or Why would a
non-mobile company give money to a
bloke just for having a SIM number?
and What political advantage can this
text message give to Pres. GMA? or
this Sec. Larry C. Aguirre? It is either
a con artist one-peso investment, or a
political destabilizers one-peso
contribution. A pinch of cynicism exist
to scrutinize the text message because
of an earlier message was received
by my wife allegedly from SMART
PADALA. The text message, received
22 March 2005, reads SMART
PADALA: U won a nokia 7610 from our
network. To claim your prize please call
toll free no. 09282292317. DTI NCR
permit #2838 series of 2005. God
bless. Three aspects of the message
proved problematic, i.e. Smart Padala
involves Overseas Filipino Workers
(OFW) remittances from abroad to the
Philippines through mobile accounts
and my wife is not an OFW, but a senior
law student as I am, to avail of the
Telecommunications
By Michael Vernon M. Guerrero
Smart Padala service; another was the
toll free no. 09282292317, which is
a mobile phone number which is never
toll free; and lastly, if Smart
Communications would actually be
giving away prizes of sorts, it would
have sent it through the usual three-
digit or four-digit numbers, where it
sends account notifications and text
spams/marketing offers. A call to a
brother-in-law, who is an officer in
Smart Communications, readily
exposed the scam.
Going back to the November text
message involving the alleged GMA
Charity Foundation, the text has been
circulating even prior to November
2005. In August 2005, a certain
person from Antipolo, Rizal even
called up the texters number, and later
posted a comment at the governments
dot-gov-dot-ph website. The comment
reads:
I would just want to inquire about
the text message that my brother
got. It says that I won in a raffle by
the GMA CHARITY
FOUNDATION. What is this all
about? Is this really true? Coz the
amount they mentioned is quite
big. We called up the number and
we were told that they got the
number from my service provider
which is GLOBE. We called a
certain ATTY. LARRY AGUIRRE and
were told to call another person
which is ATTY. MANUEL
NANDING and he gave the
address where we can go to give
documents about us. #169
salcedo village, makati city. i just
want to know if this is a valid
promo coz they have a dti number
(dti no. 00110). if not i want to let
the government and the others
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
aware of this illegal operation.
thank you and god bless!1
The scam is similar to the scam
reported by the Philippine Star on 16
June 2005. DFA Undersecretary for
Migrant Workers Affairs Jose S.
Brillantes said therein that the text
messages name drop Bangko Sentral
ng Pilipinas (BSP) Governor Rafael
Buenaventura, and claim that the
receiver has won two million Philippine
pesos and has to remit 800 US dollars
to be able to receive the prize money.
The text message reads Congrats
your cell roaming no. had won P2
million during the electronic raffle
drawn from the Central Bank of The
Philippines. Call now Governor Rafael
Buenaventura at this number:
+639156907234, according to
Donnie Fetalino, Attach and
Communications Officer of the
Philippine Embassy in Cairo. 2
Recently, the Department of Foreign
Affairs (DFA) warned OFWs against a
new text scam circulating in Canada.
The Philippine Consulate General in
Vancouver reported, resulting from the
inquiry of two Filipinos as the veracity
of the text message, that the text
message reads: This is an exclusive
for OCWs and OFWs. Your roaming
number was very lucky to receive
$40,000 from CBP. This is a new
project of GMA and Western Union.
The Consulate General contacted
Western Union to verify the authenticity
of the message and the bank informed
the mission that there was no such
promotion or project. 3 Simply, the
would-be victim receives a text
message announcing he has won in a
raffle sponsored by BSP (or Pagcor or
the Philippine Charity Sweepstakes
Office) with prizes ranging from one
million pesos to two million pesos. If
the victim responds and calls a
21
 telephone number given by the
sender, an alleged Governor
Buenaventura will reply. The victim will
be instructed to first pay a ten-percent
withholding tax before he can claim
his prize.4
Calling the mobile numbers involved
after a certain period of time would
solicit network notification that The
number you have dialed is either
unattended or out of the coverage
area. Please try your call later. Such
fact is quite predictable as that the
mobile numbers used in the scam
would be using pre-paid SIMs. In the
November text message, for example,
the sender used a +63921 number;
i.e. 63 is the Philippines country code,
921 involves Smart Buddy subscribers
a pre-paid class of mobile phone
subscribers. For a measly sum of less
than four United States Dollars (US$4)
the cost of the prepaid SIM being
one hundred ninety (P190) pesos only
and the anonymity that is maintained
in purchasing the pre-paid SIM, to
perpetuate fraud in this manner would,
for some, be lucrative.
The scam works in the same manner
as how an advance fee fraud
works.5 It is the SMS-based equivalent
of the Nigerian money transfer fraud,
Nigerian scam or 419 scam, however
it may be called. Herein, the con artist
would send out text messages similar
to those above. If any recipient would
express his interest by texting back and/
or inquiring into the details of the
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
promotion, the sender would cause the
recipient to produce certain amounts
of money usually 10% of the total
amount for the sender to facilitate
the release of the prize money or
goods. One way of sending the
amounts is through bank deposit or
transfers. This method of payment,
however, is risky to the con artist
inasmuch as certain documents need
to be presented by the con artist-bank
account holder to the bank. Still, one
victim was reported to have fallen to
such scam. The victim, who comes
from the province, said he was duped
into depositing twenty thousand pesos
22
(P20,000), as tax for prize money, to
a certain bank account number.6
The recipient could also cause the
transfer of money by sending the PIN
of pre-paid cards, as to credit loads,
to the senders mobile phone. In a
case reported by the Inquirer,
Victims are told to send the PIN
codes of newly-purchased
cellphone cards to join a raffle and
get a chance to win 1.5 million
pesos to 2.5 million pesos. A
victim who complained to BSP
admitted that he bought 3,000
pesos worth of pre-paid cards
hoping it would increase his
chances of winning. Needless to
say, unsuspecting victims who
divulged their PIN codes were not
aware that the very same pre-paid
cards were being used by the scam
artists to send text messages to
other would-be preys. 7
Further, the sender can extend his
fraudulent scheme by claiming only
eight out of the ten PINs actually sent,
for example, were ever received by
him, or that two or three of the PINs
sent do not work and that the recipient
should substitute those PINs for him to
actually facilitate the release of the
prize. No amount of pre-paid credit
loads or bank deposits would bring the
sender to facilitate the release of the
prize, as there is no actual prize
existing. The con artist can dispose of
his pre-paid SIM if it is apparent that
no one else of potential victims would
be interested in falling for the scam,
or if he/she sensed that law enforcers,
if ever, would be on his trail.
Although the scam may be reported
to the Anti-Money Laundering Council,
the Philippine National Police, the
National Bureau of investigation and
the National Telecommunications
Commission for their appropriate
investigation and action, the capture
of the fraudster would prove to be
difficult as there are no records to
determine the person behind the pre-
paid number used in the scam. Unlike
in post-paid accounts, personal or
company ID cards, proof of billing, and
other documents are necessary to
establish capacity to pay pre-existing
obligations. These documents form part
of the records of a post-paid account.
Although at least 200 million text or
SMS messages are sent every day in
the Philippines, more than two for
every Filipino and earns the country
its reputation as the worlds SMS capital
Filipinos still do not have to give their
identities when buying pre-paid phone
cards.8 No document is required in
purchasing pre-paid SIM. It can be
bought off the shelf. There is no
limitation from buying three SIMs from
the three major mobile carriers in the
Philippines, i.e. in alphabetical order,
Globe, Smart, and Sun, even if the
person purchasing has only one set of
mobile phone. The main attraction of
pre-paid is that these are low-income
countries and subscribers want to
control their spending, said Karen
Ang, a Bangkok-based telecoms
analyst for Citigroup. But being able
to buy a pre-paid card without giving
up a lot of information about yourself
is also an attraction. 9
Text-based fraud can be reduced if
regulation, not ban, of pre-paid SIM
purchase is enforced. In other parts of
the Asia-Pacific region, where similar
incidents have occurred, governments
have set up stringent requirements as
to their registration. Last year, Taiwan,
fed up with con-men using the cover
of anonymity to separate gullible
people from their money with scams
ranging from simple credit-card tricks
to bogus kidnappings, sought to identify
pre-paid phone users. Thailand moved
to register users of pre-paid phones in
May, describing it as part of efforts to
stop terrorists using mobile phones to
set off bombs. Malaysia ordered phone
companies to register all holders of
pre-paid services after text-messaging
gossip-mongers hit a raw nerve with
false talk that the premiers ailing wife
had died. Shanghai, Chinas richest city
with 20 million people, required
registration of pre-paid users last
September to tackle text-message
fraud.10 Most recently, and effective
1 November 2005, Singapore has

required new and existing prepaid card
users to register their numbers. 11
Fraud through mobile phone text has
been reported in the Philippines since
2003; and in light of the possibilities
of text messaging in sowing wild
rumors, perpetrating crime and
possibly, triggering bombs; it is a big
question why the Philippine
government has not pursued any action
towards the registration of pre-paid
numbers. Unlike prior measure to
regulate text messaging in itself such
as to regulation of content, and matters
of taxation that were subject to stiff
opposition by consumers, a regulation
of pre-paid numbers not with the
Government, but with the respective
mobile phone service providers has
not been made, even if there is
compulsive proof of the need to
regulate such.
The Philippines chronically lags behind
its neighbors, and the matters involving
consumer convenience and fraud
prevention are not exempted from said
statement. The Department of Trade
Industry (DTI) permit numbers do not
serve as a deterrent against consumer
fraud as no one is aware of the official
list of permits actually issued by the
DTI as to promotions. There is no
repository, like in the Internet, to check
whether a promotion being floated to
MOST VISITED PHILIPPINE DAILIES ANDTV NETWORKS IN THE INTERNET
I n November 2006,
CNN reported that the world wide web
reached a new and mammoth
milestone with 100 million web sites
during the month of October 2006
judging from the report of Netcraft,
an Internet monitoring company that
has tracked Web growth since 1995.
Netcraft in its report noted that in
November 2006 survey we received
responses from 101,435,253 sites, up
from 97.9 million sites last month. The
100 million site milestone caps an
extraordinary year in which the Internet
has already added 27.4 million sites,
the public is what it purports itself to
be, or if State-sanctioned. The
Government should provide for the
prevention of fraud, not just to
prosecute it when the fraudster make
the mistake of making himself
identifiable.
Further, the Philippines boasts of its
resolve to root out terrorism, but it has
not, as apparent as it has been
identified by its neighboring countries,
there is no regulation that would
reduce the mobility of malefactors /
terrorists through the use of
communication tools, or prevent
malefactors from using
communication devices as triggers for
indiscriminate attacks against the
civilian population. Its gestures towards
anti-terrorism are confined in grand
strokes towards a defective national
legislation, intentionally oblivious to
simple suppletory solutions such as that
of registering pre-paid numbers.
Until the simple regulation would occur,
the P in pre-paid would more likely
lean towards the possibility of being
punked.
Endnotes
1 Gov.ph Home - Forum.
www.gov.ph, the Official
Government Portal of the Republic
By Jaime N. Soriano
easily topping the previous full-year
growth record of 17 million from
2005. The Internet has doubled in size
since May 2004, when the survey hit
50 million.
If you are wondering how the major
newspapers in the Philippine ranks in
cyberspace as of today with respect to
the number of visits of their on-line
content by the netizens, below are their
rank site as reported, monitored by,
and using the toolbar of Netcraft.
This is how they fared with their global
ranking in parenthesis:
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
of the Philippines. Retrieved 4
November 2005. <http://
w w w. g o v. p h / f o r u m /
thread.asp?rootID=68812&catID=5>
2 DFA warns Filipinos Abroad of Text
Scam using Central Bank. 16 June
2005. Philippine Headline News
Online. Retrieved 30 October 2005.
<http://www.newsflash.org/2004/
02/be/be003139.htm>
3 DFA warns OFWs on text scam in
Canada. ABS-CBN News. Retrieved
30 November 2005. <http://
w w w. a b s - c b n n e w s . c o m /
storypage.aspx?StoryId=22858>
4 Giron, Marietta Velasco. Beware of
text scams and their variants. 9 July
2003. The Consumer, Inquirer News
Service. Retrieved 4 November 2005.
<http://www.inq7.net/lif/2003/jul/
10/lif_32-1.htm>
5 See Dot.Con article, Philippine IT
Law Journal, Vol. 2, No. 2.
6 Giron, Marietta Velasco. Beware of
text scams and their variants. Ibid.
7 Ibid.
8 Asia wants SMS genie back in its
bottle. 5 September 2005. Sydney
Morning Herald. Retrieved 30
October 2005. <http://
www.smh.com.au/news/World/
Asia-wants-SMS-genie-back-in-its-
bottle/2005/09/05/
1125772446037.html>
9 Ibid.
10 Ibid.
11 Singapore to register pre-paid SIM
cards. Philippine Star. 23 October
2005, pp. 1, 4.
1st - Philippine Daily Inquirer (2,907);
2nd - Sunstar (3,634); 3rd - Philippine
Star (8,786); 4th - Manila Bulletin
(14,841); 5th - Manila Times
(20,442); 6th - Business World
(31,571); 7th - Malaya (32,830); 8th
-Abante (49,879); 9th - Journal
Publications (50,744); 10th - Manila
Standard Today (55,316); 11th -
Abante Tonite (96,725); and, 12th -
Visayan Daily Star (214,902)
And if you are also wondering which
among the newspapers in the world
rank first in terms of net clicks, it is the
>> [37] Most Visited Dailies
23

YOUR IDENTITY IN A COLORED PRINTER PRINTOUT
Identity in documents
I t has been some time
since the bygone era of the typewriter.
If one can still remember, the source
of a typewritten document may be
identified by fingerprint impressions on
the paper to identify who handled the
paper, by the distinct flaws of the
typewriters typeface to identify the
usual user of such specific typewriter,
or both. These methods of
identification were useful in identifying
the principals in the commission of
fraud, among other crimes. On the
other hand, these methods can also
be used in identifying the origins or
authors of underground and
prohibited self-published literature,
whether under a repressive
government regime or not. The
forensic means, as said, can be used
for both legitimate and illegitimate
ends, but the consolation remains that
the mechanical flaws in a certain
typewriter were not made deliberately
by the typewriter manufacturer to allow
the identification of its owner-
possessor-user.
Presently, with the proliferation of low-
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
cost colored printers, and the declining
cost of owning a colored laser printer,
it is not uncommon that some
counterfeiters try to forge legal tender
through the use of colored printing
technology, and to utter the printouts
as money thereafter. Colored laser
printers, combined with a reliable
scanner, can also replicate other legal
or commercial documents, and thus
allow the forger to pass the printouts
as the genuine documents.
Researchers at Purdue University in
West Lafayette, Indiana, United States
of America, for one, have developed
a technique to trace a document, i.e.
by analyzing a document to identify
24
Computing
By Michael Vernon M. Guerrero
characteristics that are unique for each
printer, and by designing printers to
purposely embed individualized
characteristics in documents. They
detect, through software, slight
variations in printed characters, which
they call "intrinsic signatures," revealing
subtle differences from one printer
model to another. 1
Printer codes
Another manner of detecting which
printer a printout originated was
reported on 26 October 2004, in the
magazine PC World with an article
therein entitled Dutch track
counterfeits via printer serial
numbers. The article pointed out that
every printout contains a hidden code
that contains information about the
computer printer that it was printed on.
Even if modern printers are of different
brands, their print engines are made
by only a few companies, such as
Toshiba, Canon and Ricoh; and that it
is the engine that has its own identity
that can be traced. 2 Most consumers
are unaware of this feature until
recently, but most government agencies
are aware of this for some time. Seth
Schoen, a technologist who led the
Electronic Frontier Foundation's (EFF)
research, said he had seen the coding
on documents produced by printers
that were at least a decade old. 3
The built-in security is composed of
dots. The dots are yellow, less than
one millimeter in diameter, and are
typically repeated over each page of
a document. In order to see the
pattern, one needs a blue light, a
magnifying glass, or a microscope,4
Schoen revealed. The pattern indicates
a unique number that is printed on
every color page. The number
determines to what country a specific
printer has been delivered, and to
what dealer. The dealer then can lead
investigators to the local computer store
where the printer was sold. 5 The
EFF has cracked the codes of a
particular line of Xerox printers but has
observed similar marking in Hewlett
Packard (HP) printers, among others.
EFF looked at printer output under a
blue light, and found yellow dot
markings in Brother HL-4200CN
printer; Canon CLC 1000, CLC 2400,
CLC 4000, Color imageRUNNER
C3100CN, Color imageRUNNER
C3200, and Color imageRUNNER
C3220 printers; Dell 3000cn,
3100cn, and 5100cn printers; Epson
AcuLaser C900, C1100, C1500, and
C1900 printers; HP Color Laserjet
1500l, 2500, 2500n, 2550l, 2550n,
2600n, 2680, 2840, 3500, 3500n,
3600dn, 3700, 3700dn, 3700n,
4600, 4600dn, 4600hdn, 4600n,
4650, 4650dn, 4650dtn, 5100cn,
5500, 5500atn, 5500dn, 5500hdn,
5550, 5550dtn, 9500 printers;
Konica/Minolta Bizhub C350,
CF1501, Colorforce 8050, Desklaser
2200, DialtaColor CF 2001, Ikon
CPP500E, Magicolor 2210, Magicolor
2300 DL, Magicolor 2430 DL,
Magicolor 3300, Magicolor 7300
printers; Kyocera FS-C5016N printer;
Lanier LD238C, and LP125cx/
LP126cn printers; Lexmark C510,
C720, and C912 printers; Ricoh Aficio
CL 3000, Aficio CL 6010, Aficio CL
7000, and AP 206 printers; Savin
C3210 and CLP35 printers; Tektronix
eStudio 3511 printer; Xerox
DocuColor 12, DocuColor 40,
DocuColor 2045, DocuColor 6060,
WorkCentre M24. WorkCenter Pro
40, and WorkCenter Pro C2636
printers. On the other hand, the press
report that Epson AcuLaser C1100
printer and all models of Xerox
WorkCentre Pro print tracking codes.

Lastly, the manufacturer admitted that
the following printers print tracking
codes: Tektronix eStudio 210c, eStudio
310c, eStudio 311c, eStudio 211c,
eStudio 2100c, eStudio 3100c,
FC15i, FC15, FC22i, FC22, FC25Pi,
FC25P, FC70, printers; and Xerox
DocuColor 2000, and DocuColor
6060 printers. 6
The United States Secret Service
acknowledged that the markings but
played down its use for invading
privacy. Agency spokesman Eric
Zahren announced that the markings
merely serve as a countermeasure
to prevent illegal activity specific to
counterfeiting, and " to protect our
currency and to protect people's hard-
earned money." 7 On the other hand,
EFF Senior Staff Attorney Lee Tien
noted that "Underground democracy
movements that produce political or
religious pamphlets and flyers, like the
Russian samizdat of the 1980s, will
always need the anonymity of simple
paper documents, but this technology
makes it easier for governments to find
dissenters, Even worse, it shows how
the government and private industry
make backroom deals to weaken our
privacy by compromising everyday
equipment like printers." 8
Right of privacy
Privacy is the ability of an individual or
group to stop information about
themselves from becoming known to
people other than those they choose
to give the information to. The right
against unsanctioned intrusion of
privacy by the government,
corporations or individuals is part of
many countries' laws, and in some
cases, constitutions (such as France's
Declaration of the Rights of Man and
of the Citizen). 9 Further, the Universal
Declaration of Human Rights, in article
12, states that No one shall be
subjected to arbitrary interference with
his privacy, family, home or
correspondence, nor to attacks upon
his honour and reputation. Everyone
has the right to the protection of the
law against such interference or
attacks.
In the Philippines, on the other hand,
in the landmark case of Morfe v. Mutuc
[130 Phil. 415 (1968), 22 SCRA
424], the Philippine Supreme Court,
speaking through then Mr. Justice
Fernando, stated that
The right to privacy is
constitutionally protected. The
right to privacy as such is accorded
recognition independently of its
identification with liberty; in itself,
it is fully deserving of constitutional
protection. The language of Prof.
Emerson is particularly apt: The
concept of limited government has
always included the idea that
governmental powers stop short
of certain intrusions into the
personal life of the citizen. This is
indeed one of the basic distinctions
between absolute and limited
government. Ultimate and
pervasive control of the individual,
in all aspects of his life, is the
hallmark of the absolute state. In
contrast, a system of limited
government safeguards a private
sector, which belongs to the
individual, firmly distinguishing it
from the public sector, which the
state can control. Protection of this
private sector protection, in
other words, of the dignity and
integrity of the individual has
become increasingly important as
modern society has developed. All
the forces of technological age
industrialization, urbanization, and
organization operate to narrow
the area of privacy and facilitate
intrusion into it. In modern terms,
the capacity to maintain and
support this enclave of private life
marks the difference between a
democratic and a totalitarian
society." 10
Consumer concerns
Identification of the printer origin of a
colored printout ultimate points to the
identification of the owner of the
printer. The means to identify a felon
through certain encrypted codes in a
printed output may be said to be
legitimate, but the same means may
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
serve as a prior restraint against any
other person from airing criticisms or
other utterances against entities that
may have the propensity to resort to
extra-legal remedies to suppress such
expression. Truly, although it may be
clear that the means was in
furtherance of an important
government interest in the United
States and parallel to the government
interest of other countries relating to
counterfeit notes, i.e. including the
Philippines and that said interest is
primarily unrelated to the suppression
of freedom of expression, there may
be controversy whether the incidental
restriction on the freedom of
expression is no greater than is
essential to the furtherance of that
interest. It may be contended that the
government interest, sought to be
promoted, can be achieved by means
other than the suppression of freedom
of expression. 11 By the way things are,
one should be printing his legitimate
criticisms against known political
personalities in some other printer that
does not print the encrypted yellow dots.
On the other hand, leaving consumers
in the dark as to marks that identify
device purchasers is an insidious
means to achieve a certain purpose
without regard to its pregnant potential
for abuse. Its continued practice,
further, is contradictory to the current
trend where sellers provide privacy
terms in their products, to make the
consumer aware of the pertinent
personal information the latter is willing
to divulge. Such insidious practice
divests an ordinary person from
consciously assuming risks such as
those made with the use of computers
and mobile phones and from limiting
liabilities for ambiguous acts such as
currency printouts for a school report.
Lastly, the words of EFF Senior Staff
Attorney Lee Tien ring true when he
said that "it shows that the government
and private industry make backroom
deals to weaken our privacy by
compromising everyday equipment
like printers. The logical next question
is: what other deals have been or are
being made to ensure that our
25
 technology rats on us?" 12 Just imagine the possibility and effects of
encrypted marks on digital photography and videography, if
government would pursue such measure for a supposedly legitimate
government interest.
Conclusion
The Consumer Act of the Philippines, promulgated on 13 April 1992,
does not contain consumer protection as to privacy issues, although
the powers of the National Consumer Affairs Commission include
that which recommends new policies and legislation or amendments
to existing ones, 13 i.e. pertaining to consumer protection. The
Philippines has not pursued a path somehow oriented towards the
protection of privacy and transborder flows of personal data such
as those embodied in the guidelines promulgated by the Organization
for Economic Cooperation and Development (OECD), circa 1980
or a path parallel to the initiatives of the United States, ironically as
to this article, through its Federal Trade Commission and Department
of Commerce, as to fair information practices. The Philippine
government should now be addressing, as it should have had before,
advanced consumer issues besides those directly related to usual
items in store shelves. It cannot actively indulge itself in techno-rhetoric
while being complacently backward in its policies as to matters of
technology.
Endnotes
Illustration of the encrypted dots
The Electronic Frontier Foundation (EFF)
presented, in line of its Machine Identification
Code Technology project, explained the
manner of reading the forensic tracking codes
in a Xerox DocuColor color laser printout, in
the following images. The information is the
result of research by Robert Lee, Seth Schoen,
Patrick Murphy, Joel Alwen, and Andrew
"bunnie" Huang. The forensic dots are not
usually visible to the naked eye under white
light because of their limited contrast with the
background. They can be made visible by
magnification (using a magnifying glass or
microscope), and/or by illuminating the page
with blue instead of white light. Pure blue light
causes the yellow dots to appear black, such
as in the image immediately below, which is
an image of one repetition of the dot grid from
the same Xerox DocuColor 12 page,
magnified 10x and photographed by the QX5
microscope under illumination from a Photon
blue LED flashlight. The illumination is from
the lower right; to the upper and lower left of
the image.

1 De Vries, Wilbert. Dutch track counterfeits via printer serial numbers

WebWereld Netherlands. 26 October 2004, PC World | HTML
Developer's Guide | Dutch track counterfeits via printer serial
numbers PC World, 2005 IDG Communications. Retrieved 20
October 2005. <http://www.pcworld.idg.com.au/index.php/
id;1002274598>
2 Ibid.
3 Musgrove, Mike. "Sleuths Crack Tracking Code Discovered in Color
Printers," 19 October 2005. Washington Post Company. Retrieved
21 October 2005. <http://www.washingtonpost.com/wp-dyn/
content/article/2005/10/18/AR2005101801663.htm>
4 Secret Code in Color Printers Lets Government Track You: Tiny Dots
Show Where and When You Made Your Print 17 October 2005,
EFF Breaking News: Electronic Frontier Foundation. Retrieved 21
Overlaying the black dots in the microscope
October 2005. <http://www.eff.org/news/archives/ image with larger yellow dots for greater
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1

2005_10.php#004063> visibility (as a schematic representation of the

5 De Vries, Wilbert. Dutch track counterfeits via printer serial numbers. relative position of the dots, through the use
Ibid. computer graphics software, the sample
6 List of Printers Which Do or Don't Print Tracking Dots. Electronic printout's marks look like the following:
Frontier Foundation. Retrieved 21 October 2005.<http://
www.eff.org/Privacy/printers/list.php>
7 Musgrove, Mike. "Sleuths Crack Tracking Code Discovered in Color
Printers," Ibid.
8 Secret Code in Color Printers Lets Government Track You. Ibid.
9 Privacy. Wikipedia, the free encyclopedia. Retrieved 25 October 2005.
<http://en.wikipedia.org/wiki/Privacy>
10 See also Griswold v. Connecticut, 381 U.S. 479 (1965) as to U.S.
Supreme Court declaration regarding the right to privacy.
11 See Social Weather Station vs. Comelec. GR 147571, 5 May 2001,
citing U.S. vs. OBrien, 391 US 365, as to the OBrien test.
12 Secret Code in Color Printers Lets Government Track You. Ibid.
13 Article 153 (b), Republic Act 7394, The Consumer Act of the
Philippines

26
 The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
Contributions are Welcome
Explanatory text were added to show the significance of the dots.

T he Philippine IT Law
Journal welcomes the submission of
contributions with a view to publication,
which should be sent to:

The Board of Editors

The Philippine Quarterly
IT Law Journal
Arellano University School of Law
Taft Avenue, corner Menlo Street
Pasay City 1300 Philippines
Tels. (2) 404-3089 to 91
Fax. (2) 521-4691
eMail: itlawjournal@arellanolaw.net
The topmost row and leftmost column are a parity row and column for
error correction. They help verify that the forensic information has been as should all correspondence, books for
read accurately (and, if a single dot has been read incorrectly, to identify review, orders and other
the location of the error). The rows and columns all have odd parity, i.e. communications.
every column contains an odd number of dots, and every row (except
The Board of Editors will only consider
the topmost row) contains an odd number of dots. Each column is read
material which complies with the
top-to-bottom as a single byte of seven bits (omitting the first parity bit); following:
the bytes are then read right-to-left. The columns (numbered herein
from left to right) have the following meanings: 1. The submission is an original,
unpublished work which is not
15: unknown (often zero; constant for each individual printer; may convey being submitted for publication
some non-user-visible fact about the printer's model or configuration) elsewhere.
14, 13, 12, 11: printer serial number in binary-coded-decimal, two 2. The manuscript must be typed,
digits per byte (constant for each individual printer; see below) double-spaced, on one side only of
10: separator (typically all ones; does not appear to code information) a uniform sized paper, and be
accompanied by the text on floppy
9: unused
disk in a recognized software.
8: year that page was printed (without century; 2005 is coded as 5)
3. Footnotes must be numbered
7: month that page was printed consecutively throughout the article.
6: day that page was printed 4. Authors may use graphs, tables,
5: hour that page was printed (may be UTC time zone, or may be set figures, or mathematics only when
inaccurately within printer) its application is necessary for
4, 3: unused achieving the stated objective of the
2: minute that page was printed paper. When mathematics is used,
1: row parity bit (set to guarantee an odd number of dots present per the necessity for doing so should
row) be explained, and the major steps
in the argument and the conclusions
made intelligible to a non-
The printer serial number is a decimal number of six or eight digits;
mathematical reader.
these digits are coded two at a time in columns 14, 13, 12, and 11 (or
possibly just 13, 12, and 11); for instance, the serial number 00654321 Authors are asked to refer to a recent
would be coded with column values 00, 65, 43, and 21. issue of the Philippine IT Law Journal for
style. More detailed guidance will be sent
For a better view of the images and to find out more about how to detect the on request. Authors are encouraged to
dots, see http://www.eff.org/Privacy/printers/docucolor/. As EFF is still working carefully edit their own works.
on cracking the codes from other printers, it needs the public's help. To find
out more on how to make test pages to be included in EFFs research, see
http://www.eff.org/Privacy/printers/wp.php#testsheets.

27

I nternet fraud may
use e-mail, chat rooms, websites and
message boards to present solicitations
to possible victims, to conduct
fraudulent transactions, or to transmit
the proceeds of fraud to financial
institutions. 1
Credit Card Fraud
Credit Card Fraud is the most common
of Internet fraud. Information used to
pursue the same may be acquired
from retailers, whether online or
offline; from companies databases
which have been compromised; from
schemes like phishing; etc. Using
credit cards online is inherently
insecure, as information acquired in
secure transactions are decrypted
into plain text for processing. 2 Still,
some would argue that the safest way
to purchase items via the Internet is by
credit card because one can often
dispute the charges if something is
wrong.3
Prevention.
1. Make sure you are purchasing
merchandise from a reputable
source. Do not judge a person/
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
company by their web sites. Just
because an individual or company
has a professional-looking web site
does not mean it is legitimate. Web
sites can be created in just a few
days; and after a short period of
taking money, a site can vanish
without a trace. Do your
homework on the individual or
company to ensure that they are
legitimate. Check out other web
sites regarding the person/
company you plan to transact.
2. Try to obtain a physical address
rather than merely a post office
box and a phone number, call the
seller to see if the number is
28
Computing
DOT.CON
By Michael Vernon M. Guerrero
3.
correct and working. Check with
the Better Business Bureau from
the sellers area. Be cautious when
dealing with individuals/
companies from outside your own
country.
Send the potential seller e-mail to
see if they have an active e-mail
address and be wary of sellers
who use free e-mail services
where a credit card was not
required to open the account.
Consider not purchasing from
sellers who would not provide you
with this type of information.
4. Do not give out your credit card
number(s) online unless the site is
a secure and reputable site. Do
not trust a site just because it claims
to be secure. Sometimes a tiny
icon of a padlock appears to
symbolize a higher level of
security to transmit data. This icon
is not a guarantee of a secure site,
but might provide you some
assurance. Still, before using the
site, check out the security/
encryption software it uses. Make
sure the transaction is secure when
you electronically send your credit
card numbers.
5. Be cautious when responding to
special offers (especially through
unsolicited e-mail).
6. You should also keep a list of all
your credit cards and account
information along with the card
issuers contact information. If
anything looks suspicious or you
lose your credit card(s) you should
contact the card issuer
immediately. 4
Advance Fee Fraud
Advance fee fraud (the Nigerian
money transfer fraud, Nigerian scam
or 419 scam after the relevant section
of the Nigerian Criminal Code that it
violates), is a fraudulent scheme to
extract money from victims after
making them believe they will get an
immense fortune. Victims are
requested to pay an upfront fee before
their purported fortune is released.5
Origin. Originally known as the
Spanish Prisoner Letter, the scam is
a confidence game dating back to
1588. In its original form, the con artist
tells his victim (the mark) that he is in
correspondence with a wealthy person
of high estate who has been
imprisoned in Spain under a false
identity. The alleged prisoner cannot
reveal his identity without serious
repercussions, and thus supposedly rely
on the con artist to raise money to
secure his release. The con artist offers
to let the mark supply some of the
money, with a promise that he will be
rewarded generously when the
prisoner returns both financially and
by being married to the prisoners
beautiful daughter. However, once the
mark has turned over his money, he
learns that further difficulties have
arisen, requiring more money, until
the mark is cleaned out and the game
ends.6
The association with Nigeria was due
to the massive proliferation of such
confidence tricks from that since the
mid-eighties. In the latter form, the
schemers contacted mainly heads of
companies and church officials through
ordinary postal mail. The use of e-mail
spam, instant messaging, and even text
messaging for the initial contacts has
led to other persons also being
targeted, as the cost to the scammers
to make initial contact is much lower.7
The Nigerian Money Transfer Fraud
operates in the following manner: The
potential victim receives a letter or fax

from an alleged official representing
a foreign government or agency. An
offer is made to transfer millions of
dollars in over invoiced contract
funds into the potential victims personal
bank account. The potential victim is
encouraged to travel overseas to
complete the transaction; is requested
to provide blank company letterhead
forms, banking account information,
telephone/fax numbers. The potential
victim receives numerous documents
with official looking stamps, seals and
logo testifying to the authenticity of the
proposal (electronic documents over
Internet). Eventually potential victim
must provide up-front or advance fees
for various taxes, attorney fees,
transaction fees or bribes. 8 The
original medium for this scam was
through mailers, it was in the late
1990s that the Internet was extensively
used for the purpose.
Variance. One variant involves an
alleged lawyer-con artist, representing
the estate of some long-lost relative of
the potential victim that the latter never
knew he or she had (as the potential
victims surname will be inserted into
the e-mail message). The con artist
claims to have gone through a lot of
trouble to find the victim in order to
give him or her a share of the millions
of dollars available if the potential
victim will forward his or her bank
account information to the con artist.
9
Another variant involves the offers of
con artists to buy some expensive item
which the potential victim has
advertised, by official, certified, bank
or cashiers check. The check will have
an accidentally or mutually agreed
higher value than the price of the item,
so the con artist can ask the victim to
wire the extra money to some third
party as soon as the check clears. The
check typically clears after one or two
days, but the fact that it is counterfeit is
not detected until several days or weeks
later, by which time the victim has sent
the item and the additional money
to the con artist and his representative.
Most banks will hold the victim
accountable for the value of the
10
counterfeit check.
Another variant pretends to be a
winning notification from a lottery as civil servants and members of
company, requesting payment in
advance to collect the sum that the
potential victim has won.11 This
variant is prevalent in the Philippines
or against Filipinos12 through SMS text
messaging.
Other forms of 4-1-9 schemes
include: c.o.d. of goods or services,
real estate ventures, purchases of
crude oil at reduced prices, beneficiary
of a will, recipient of an award and
paper currency conversion.13
Example.
Request for urgent business
relationship
First, I must solicit your strictest
confidence in this transaction. This
is by virtue of its nature as being
utterly confidential and Top
Secret. I am sure and have
confidence of your ability and
reliability to prosecute a
transaction of this great magnitude
involving a pending transaction
requiring maximum confidence.
We are top official of the federal
government contract review panel
who are interested in importation
of goods into our country with
funds which are presently trapped
in Nigeria. In order to commence
this business we solicit your
assistance to enable us to transfer
into your account the said trapped
funds.
The source of this fund is as follows;
during the last military regime here
in Nigeria, the government
officials set up companies and
awarded themselves contracts
which were grossly over-invoiced
in various ministries. The present
civilian government set up a
contract review panel and we have
identified a lot of inflated contract
funds which are presently floating
in the central bank of Nigeria
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
ready for payment.
However, by virtue of our position
this panel, we cannot acquire this
money in our names. I have
therefore, been delegated as a
matter of trust by my colleagues
of the panel to look for an
overseas partner into whose
account we would transfer the sum
of us$21,320,000.00(twenty one
million, three hundred and twenty
thousand U.S dollars). Hence we
are writing you this letter. We have
agreed to share the money thus;
1. 20% for the account owner 2.
70% for us (the officials) 3. 10% to
be used in settling taxation and
all local and foreign expenses. It
is from the 70% that we wish to
commence the importation
business.
Please note that this transaction
is 100% safe and we hope to
commence the transfer latest
seven (7) banking days from the
date of the receipt of the following
information by Tel/Fax; 234-1-
7740449, your companys signed,
and stamped letterhead paper the
above information will enable us
write letters of claim and job
description respectively. This way
we will use your companys name
to apply for payment and re-award
the contract in your companys
name.
We are looking forward to doing
this business with you and solicit
your confidentiality in this
transaction. Please acknowledge
the receipt of this letter using the
above Tel/fax numbers. I will send
you detailed information of this
pending project when I have
heard from you.
Yours faithfully,
Dr. Clement Okon
Note; please quote this reference
number (ve/s/09/99) in all your
responses.14
29
 Prevention.
1. Be skeptical of individuals
representing themselves as
Nigerian or foreign government
officials asking for your help in
placing large sums of money in
overseas bank accounts. Be
skeptical also of entities offering
prizes that require you to shell out
money or any equivalent to allow
the processing of your winnings,
among others.
2. Do not believe the promise of
large sums of money for your
cooperation.
3. Guard your account information
carefully. 15
Phishing
One of the popular fraudulent practices
being done online today is phishing.
Phishing (also carding and
spoofing) is a form of social
engineering, characterized by attempts
to fraudulently acquire sensitive
information, such as passwords and
credit card details, by masquerading
as a trustworthy person or business in
an apparently official electronic
communication, such as an email or
an instant message. 16 Phishing
attacks use both social engineering and
technical subterfuge to steal
consumers personal identity data and
financial account credentials. 17
Phishing is the art of getting personal
information, usually in the form of
usernames and passwords, from
individuals. It is also a form of Social
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
Engineering which is defined as the
art and science of getting people to
comply to your wishes. 18
Fraudsters behind the fishing use spam
messages masquerading as banks or
online payment facilities. They also
generate pop-up messages through
a website or through certain software
that was installed related to the service
that claims to be from the a business
organization that one usually deals
with. The message may ask one to
update, validate, or confirm your May 2005. About 73 million adult e-
account information. Some phishing
emails threaten a dire consequence if
one does not respond. 19 Some
30
fraudsters place the text of a legitimate
site link in the email but actually links
to their own fake site. The fraudsters
fake website replicates the legitimate
web site as to its code and graphics,
completely fooling a victim in
navigating through a scam site. The
scams rely more on persuasive
psychological trickery than on
technology. 20 The classic phishing
scams seem to recur with little
variation, such as Your account is
about to expire, the sender of the e-
mail warns. Click on the link and
resubmit your credit card information
to avoid any loss of service. 21 The
message may also provide the
following messages: We suspect an
unauthorized transaction on your
account. To ensure that your account
is not compromised, please click the
link below and confirm your identity;
or During our regular verification of
accounts, we couldnt verify your
information. Please click here to
update and verify your information.
22
Phishing may also be a means for
a fraudster to commit identity theft.
Origin. The term phishing arose
from the use of increasingly
sophisticated lures to fish for users
financial information and passwords.
23
It was coined by crackers attempting
to steal AOL accounts during the mid
1990s. A cracker would mimic an AOL
staff member then would send a
message entitled, for example, verify
your account or confirm billing
information, to acquire the AOLs
user s password, among other
information, so as to allow the former
to use the AOL account for the
formers benefit or other criminal acts.
24
Prevalence. Washington Post
reported that [s]ince May 2003,
nearly 11 million recipients of phishing
e-mail clicked on the links. Of those,
1.8 million recalled filling out the
information requested. Phishing attacks
grew 28 percent from May 2004 to
Spyware and adware would record
mail users reported more than 50
phishing e-mails during the 12-month
period. 2.42 million adults reported
losing money because of phishing
attacks. Victims said their banks and
credit card companies took the biggest
hits. Victims recovered 87 percent of
their funds. Major U.S. Internet service
providers reported 150 to 200
uniquely identifiable phishing attacks
against their brands. Pay Pal and eBay
are the top spoofed sites. Citibank is
the primary bank target for phishing
scams. 25 As of September 2005,
according to the Anti-Phishing Working
Group (APWG), the number of unique
phishing reports received in September
was 13562, the number of unique
phishing sites received in September
was 5259, the number of brands
hijacked by phishing campaigns in
September was 106, the number of
brands comprising the top 80% of
phishing campaigns in September was
6, the country hosting the most
phishing websites in September was
the United States, Phishing which
contains some form of target name in
URL amounted to 50 % of total attacks,
phishing which provides no hostname
but only IP address amounted to 34 %
of total attacks, percentage of sites not
using port 80 amount to 8 % of total
attacks. The United States remains on
the top of the list of phishing hosts with
31.22%, with the top 10 breakdown
as follows; China: 12.13%, Republic
of Korea: 10.91%, Germany: 3.16%,
Canada: 2.97%, Japan: 2.44%,
France: 2.31%, Poland: 2.24%,
Brazil: 1.98%, Romania: 1.98% . In
September 2005, the APWG
witnessed several new phishing attacks
which utilized peoples willingness to
assist during times of desperation; the
attacks being against The Red Cross,
The Salvation Army, Hurricane Katrina
Donations, and Hurricane Rita
Donations. 26
Variance. Spear phishing, targets
members of a particular organization
and the sender would claim to be its
e-mail provider. The sender will prompt
you to download special software,
which could install spyware or adware.
personal information later. 27

Examples. The following are
examples of phishing e-mails.
Date: Thu, 02 Dec 2004 07:35:28
-0300
From: Suntrust Billing Department
<billing@suntrust.com>
To: Abnelson
Subject: Failure to confirm your
records may result in your account
suspension.
Dear valued SunTrust member,
Due to concerns, for the safety and
integrity of the online banking
community we have issued the
following warning message.
It has come to our attention that
your account information needs to
be confirmed due to inactive
customers, fraud and spoof
reports. If you could please take
5-10 minutes out of your online
experience and renew your
records you will not run into any
future problems with the online
service. However, failure to
confirm your records may result in
your account suspension.
You can confirm your account
records by logging in to your
internet banking account. Once
you have confirmed your account
records your internet banking
service will not be interrupted and
will continue as normal.
To confirm your bank account
records please click here.
Thank you for your time,
SunTrust Billing Department.
details have been compromised in
any way.
2004 SunTrust Banks, Inc. All
rights reserved. - Equal Housing
Lender - Member FDIC
or
Subject: Verify your E-mail with
Citibank
This email was sent by the Citibank
server to verify your E-mail
address. You must complete this
process by clicking on the link
below and entering in the small
window your Citibank ATM/Debit
Card number and PIN that you use
on ATM.
This is done for your protection -
because some of our members no
longer have access to their email
addresses and we must verify it.
To verify your E-mail address and
access your bank account, click on
the link below:
https://web.da-us.citibank.com/
signin/citifi/scripts/email_verify.jsp
Do not reply to this email as it is
Thank you for using Citibank 28
The link however goes to a non-secure
site at http://www.securecitibank.us.
Said domain was registered to a certain
Wayne Stanford of 3057 sunrise cir,
marina CA, 93933, United States, and
not to CitiBank itself.29 After the initial
Citibank phishing attacks, another set
of phishing emails were circulated on
a different premise, to wit:
Recently there have been a large
number of identity theft attempts
targeting Citibank customers. In
order to safeguard your account,
we require that you update your
Citibank ATM/Debit card PIN.
This update is requested of you as
a precautionary measure against
fraud. Please note that we have
no particular indications that your
knowledge, by themselves or by
unleashing viruses or spyware.
2. Be aware of corporate e-mails
This process is mandatory, and if
not completed within the nearest
time your account may be subject
to temporary suspension.
To securely update your Citibank
ATM/Debit card PIN please go to:
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
https://www.citibank.com/signin/
citifi/scripts/login2/update_pin.jsp
Please note that this update
applies to your Citibank ATM/
Debit card - which is linked directly
to your checking account, not
Citibank credit cards.
Thank you for your prompt
attention to this matter and thank
you for using Citibank!
Regards,
Riley Buckner
Head of Citi Identity Theft
Solutions
Copyright 2004 Citicorp. All
rights reserved.
an unmonitored alias.
ozmpjdyvexo utcbt vuqr
znrwvsowwvi
The link however ends up to a website
in Asia. The genuine CitiBank page is
forced to appear behind the scams
pop-up web page.30
Prevention. Two of the basic clues
in determining a phishing email are the
emails typographic errors and the
sophistication of the emails content
and grammar. Misspellings and faulty
grammar in the bogus email should
bring alarm bells ringing in mind.
1. Use anti-virus software and a
firewall, and keep them updated.
Some emails may contain software
or scripts that can harm your
computer or track your activities
on the Internet without your
requesting or require personal
financial information (credit card
numbers, account usernames,
passwords and social security
numbers). Also be aware of e-
mails coming from usual service
providers requesting verification of
certain account information (email
31
 addresses, passwords, credit card
numbers, etc.) A sender may
mimic an Internet service provider
(ISP), bank, online payment
service, or even a government
agency. Phishers often convince
e-mail recipients to respond when
they hijack brand names of banks,
credit card companies and e-
retailers.
3. If you normally transact with the
company requesting the
information, and if the companys
office can be contacted by phone
without incurring unwelcome
charges, call to confirm. A
potential fraudster would have
difficulty taking over the
companys phone system to
perpetuate his/her scheme.
4. Do not reply, either querying/
confirming the senders need for
the information or worse, sending
the information requested through
email. Legitimate companies do
not ask for personal information
via email. Further, e-mail is not a
secure method of transmitting
personal information. Updating
information with the companys
website would be a better option,
while updating information within
company s premises and
authorized personnel would be the
best.
5. Do not click on the e-mails link,
even if you are curious where the
link would lead you. Go directly
to the companys website by
typing the websites URL address
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
in your browsers address bar, if
you need to.
6. Do not openany attachment or
downloading any files from emails
you receive. These files may
contain viruses or spyware.
7. If you need to update your
personal information in the
companys website, make sure that
the site is secure by looking for
signs in your browser that it is in
fact secure; such as a locked
yellow padlock at the lower right
corner of your browser, or the
https:// in your browsers
address bar (the s appended to
http to mean secure). Still,
32
these indications are not foolproof,
as fraudsters may be
technologically sophisticated to
develop or mimic secure sites.
8. If the personal information shared
that is vulnerable to fraud is of
financial nature, be aware of or
check your credit card or account
activity, and report anomalous
transactions to the concerned
company or service provider, if
they occur. If your statement is
late, call your credit card
company or bank to confirm your
billing address, if not your account
balances.
Distinctions with other frauds
1. Online Credit Card Fraud.
Online Credit Card Fraud is more
geared towards the use of credit
cards over the Internet. It is a
direct act to utilize another persons
credit card information to pursue
transactions online; the
information being acquired
through insidious schemes
(through keylogging spyware,
phishing, etc.) or by cracking the
credit card account itself.
Fraudulent use of credit cards
(accounts) is governed by the
Access Device Regulation Act of
1998 (Republic Act 8484) in the
Philippines. The deterrence of the
practice, especially if electronically
pursued, is supplemented by the
e-Commerce Act of 2000
(Republic Act 8792) and covered
by A.M. 01-7-01-SC (Rules on
Electronic Evidence). On the
other hand, phishing is only the
preliminary means to pursue
actual online credit card fraud. As
a technical subterfuge scheme, it
plant crimeware onto PCs to steal
credentials directly, often using
Trojan keylogger spyware.
Phishing, however, may also be
utilized to acquire information to
allow identity thefts, a springboard
to the commission of estafa, and
other crimes. It may also be
pursued to gain access to non-
financial accounts (such as email
accounts) to pursue other frauds.
The scheme is not limited to aid
the commission of violating the
access device law.
2. Spyware utilizing spam. Both
means of acquiring information
uses e-mails extensively. The
distinction exist in the kind of
information being sought, the
purpose for the information
sought, and the method being
pursued by the two schemes.
Phishing is aimed primarily in
acquiring specific personal
information (similar to those in bio-
data), while spyware, besides this
specie of information, may even
pursue the determination of a
victims online behavior patterns,
among others. Phishing is
necessarily related to the
commission of fraud. On the other
hand, while spywares gathering
of information does not discount
the possibility of the commission
of fraud, it may be merely an
insidious means to acquire
consumer information for product
development or marketing.
Phishing does not necessarily need
a software to acquire its objective,
but merely the possible gullibility
of its victim. The victims
intervention is always present for
it to occur. Spyware is a software,
and it is installed either by the
gullibility of the victim, by
indiscriminate clicking of ok
buttons, by agreeing to the terms
of a contract of adhesion by
another software where the
spyware is bundled, or even by
scripts or viruses without the
victims intervention. Phishing
emails may provide links towards
a fake website to gather the
information sought or to install
spyware. Spyware through spam
emails provide links to install
spyware. Finally, some spyware
are installed to get the victim to
part with his money for an antidote,
while some phishing attacks are
made to get the victim to part with
his money, period.

Pharming
Pharming attacks are similar to phishing
identity-theft attacks, but dont require
a lure, such as a Web link that victims
must click on to be taken to the attack
Web site. 31 Pharming combines
phishing with domain spoofing/domain
hijacking. The distinction lies with the
exploitation of a vulnerability in the
DNS server software by a hacker-
phisher to acquire the domain name
for a website and to redirect that
websites traffic to the fake site
attributed in phishing. 32 Hence,
pharming crimeware misdirects users
to fraudulent sites or proxy servers,
typically through DNS hijacking or
poisoning. This is possible when the
original site was not Secure Sockets
Layer (SSL) 33 protected, or when the
user is ignoring warnings about invalid
server certificates. 34 Rather than
spamming a potential victim, pharmers
poisons ones local DNS server by
redirecting the Web request
somewhere else, i.e. to a website
purporting to be the website one
intended to access. When a cracker
poisons a DNS server, he or she
changes the specific record for a
domain, sending one to a Web site very
different from the one one intended
to accesswithout your knowledge.
Usually, the cracker does this by posing
as an official who has the authority to
change the destination of a domain
name. DNS poisoning is also possible
via software vulnerability, however. 35
Prevalence. In 2004 a German
teenager from from Helmstedt, Lower
Saxony hijacked the eBay.de Domain
Name. 36 In January 2005, the
Domain Name for a large New York
ISP, Panix, was hijacked, the ownership
of which was attributed to a site in
Australia. Requests to reach the
panix.com server were redirected to
the United Kingdom, and e-mail was
redirected to Canada. Secure e-mail
provider Hushmail experienced the
attack on 24 April 2005 when the
attacker rang up the domain registrar
and gained enough information to
redirect users to a defaced webpage.
37
On the other hand, e-mailed viruses
that rewrite local host files on individual
PCs, like the Banker Trojan, have been
used to conduct smaller-scale
pharming attacks. 38
Prevention. Pharming could be
combated if browsers would
authenticate websites identities.
1. Server side. In order to remove
pharming as a threat, servers
would have to add another layer
of authentication. To prove that the
online merchants, banks, etc. are
who they purport themselves to be,
it might require them to obtain a
certificate from a certificate
authority, such as VeriSign.
2. Client side.
a. Response to certificates.
When one visit the websites
of the online merchant, banks,
etc., a dialog box appears,
prompting one whether the
latter would want to trust the
certificate. If the name on the
certificate does not match the
website one tries to access,
something is amiss. One
should leave the website, as
the website being accessed is
not the actual electronic
merchant, bank, etc. being
sought. If the certificate
corresponds to the website,
one needs to save the
certificate so that the browser
would determine if it has
reached the right URL
address on the next visit. 39
b. Netcraft toolbar (http://
t o o l b a r. n e t c r a f t . c o m / ) .
Another simple solution that
works in some cases is a
browser plug-in from Netcraft
that displays information about
the site being visited, such as
its geographic location.40
Other Internet fraud
There are other Internet fraud existing,
and which are usually virtual extensions
of frauds that occur in the normal
routine of commerce. The anonymity
of a person over the Internet is a
reason why con artists can pursue
frauds with more ease. Other kinds
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
would include frauds pertaining to
Internet Auctions, Investment, and
Merchandise Delivery, among others.
Internet Auction Fraud may be
prevented in the following manner: (1)
Understand as much as possible about
how the auction works, what your
obligations are as a buyer, and what
the sellers obligations are before you
bid. Understand that if a problem
occurs with the auction transaction, it
could be much more difficult if the seller
is located outside the US because of
the difference in laws. (2) Find out if
shipping and delivery are included in
the auction price or are additional costs
so there are no unexpected costs. Find
out what actions the web site/company
takes if a problem occurs and consider
insuring the transaction and shipment.
(3) Learn as much as possible about
the seller, especially if the only
information you have is an e-mail
address. If it is a business, check the
Better Business Bureau where the
seller/business is located. Examine the
feedback on the seller. (4) Determine
what method of payment the seller is
asking from the buyer and where he/
she is asking to send payment. Also
ask the seller about when delivery can
be expected and if there is a problem
with the merchandise is it covered by
a warranty or can you exchange it.
(5) There should be no reason to give
out your social security number or
drivers license number to the seller.
Investment fraud may be limited
through observation of due diligence
similar to the prevention of credit card
fraud, and inquiry about all the terms
and conditions of the investment
proposal, taking into mind that if it
sounds too good to be true it probably
is. On the matter of non-delivery of
merchandise, to prevent so, (1)
Observe due diligence similar to the
prevention of credit card fraud; (2)
Inquire about returns and warranties;
and (3) Consider utilizing an escrow
or alternate payment service. 41
The creativity of a con artist is unlimited.
Centuries old scams can be revived to
assume modern forms, through
adoption of modern contexts and
means. Be aware. A healthy dose of
33
 cynicism once in a while may prove to 15 Internet Fraud Preventive Measures. C r e d i t _ r e p o r t s /
be the major factor in keeping ones Ibid. phishingsample.htm>
pockets healthy, and ones considerate 16 Phishing. Wikipedia, the free 30 Ibid.
social perception intact. encyclopedia. Retrieved 25 October 31 Roberts, Paul. Pharming Attacks
2005. <http://en.wikipedia.org/ Target the Web. 1 April 2005. PC
wiki/Phishing> World. <http://www.pcworld.com/
Endnotes
17 Anti-Phishing Working Group. r e s o u r c e / a r t i c l e /
1 Internet Fraud. Wikipedia, the free
What is Phishing and Pharming? 0,aid,120268,pg,1,RSS,RSS,00.asp>
encyclopedia. Retrieved 25 October
Retrieved 28 November 2005. 32 Pharming. Wikipedia, the free
2005. <http://en.wikipedia.org/
<http://www.antiphishing.org/> encyclopedia. Retrieved 25 October
wiki/Internet_fraud >
18 E-mail Evils: Of Phishing, Spam and 2005. <http://en.wikipedia.org/
2 Ibid.
E-mail Scams. Microsoft Philippines wiki/Pharming>
3 Internet Fraud Preventive Measures.
IT Professionals. Retrieved 28 33 Secure Sockets Layer (SSL) and
Internet Fraud Complaint Center
November 2005. <http:// Transport Layer Security (TLS), its
(IFFC). Retrieved 28 November
www.microsoft.com/philippines/ successor, are cryptographic
2005. <http://www1.ifccfbi.gov/
technet/article.asp?articleid= protocols which provide secure
strategy/fraudtips.asp>
20050628emailevils> communications on the Internet.
4 Ibid.
19 Federal Trade Commission, For the Transport Layer Security Wikipedia,
5 Advance fee fraud. Wikipedia, the
Consumer. FTC Consumer Alert. the free encyclopedia. Retrieved 28
free encyclopedia. Retrieved 30
How Not to Get Hooked by a November 2005 <http://
November 2005. <http://
Phishing scam. Retrieved 28 en.wikipedia.org/wiki/
en.wikipedia.org/wiki/
November 2005. <http:// Secure_Sockets_Layer>
Advance_fee_fraud>
www.ftc.gov/bcp/conline/pubs/ 34 Anti-Phishing Working Group.
6 Spanish Prisoner. Wikipedia, the
alerts/phishingalrt.htm> What is Phishing and Pharming?
free encyclopedia. Retrieved 30
20 Musgrove, Mike. Phishing Keeps Ibid.
November 2005. <http://
Luring Victims, 22 October 20005. 35 Vamosi, Robert. Alarm over
en.wikipedia.org/wiki/
Washington Post. Retrieved 23 pharming attacks: identity theft
Spanish_Prisoner>
October 2005. <http:// made even easier. 18 February
7 Advance fee fraud. Wikipedia, the
www.washingtonpost.com/wp-dyn/ 2005. Cnet.com, Security Watch.
free encyclopedia. Ibid.
content/article/2005/10/21/ Retrieved 28 November 2005.
8 Public Awareness Advisory
AR2005102102113.html> <http://reviews.cnet.com/4520-
Regarding 4-1-9 or Advance Fee
21 Musgrove, Mike. Phishing Keeps 3513_7-5670780-1.html>
Fraud Schemes. United States
Luring Victims. Ibid. 36 Fiutak, Martin. Teenager admits
Secret Service: Advance Fee Fraud
22 Federal Trade Commission, Ibid. eBay domain hijack 8 September
Advisory. Retrieved 30 November
23 Phishing. Wikipedia, the free 2004. C/net news.com. Retrieved 28
2005. <http://
encyclopedia. Ibid. November 2005. <http://
w w w. s e c r e t s e r v i c e . g o v /
24 Musgrove, Mike. Phishing Keeps news.com.com/Teenager+admits
alert419.shtml>
Luring Victims. Ibid. +eBay+domain+hijack/2100-
9 Advance Fee Fraud. Wikipedia, the
25 Ibid. 1029_3-5355785.html>
free encyclopedia. Ibid.
26 Phishing Activity Trends Report, 37 Pharming. Wikidepia, the free
10 Ibid.
September 2005. Retrieved 28 encyclopedia. Ibid.
11 Ibid.
November 2005. <http:// 38 Delio, Michelle. Pharming Out-
12 DFA warns OFWs on text scam in
antiphishing.org/apwg_phishing_ Scams Phishing. 14 March 2005.
Canada. ABS-CBN Interactive.
activity_report_sept_05.pdf> Wired News. Retrieved 28 November
Retrieved 30 November 2005.
27 Musgrove, Mike. Phishing Keeps 2005. <http://www.wired.com/
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1

< w w w. a b s - c b n n e w s . c o m /
Luring Victims. Ibid. news/infostructure/
storypage.aspx?StoryId=22858>
28 ESTec Security - Phishing Attacks. 0,1377,66853,00.html>
13 Public Awareness Advisory
Phishing Sample e-mail. ESTec 39 Vamosi, Robert. Alarm over
Regarding 4-1-9 or Advance Fee
Systems Corporation. Retrieved 30 pharming attacks: identity theft
Fraud Schemes. United States
November 2005. <http:// made even easier. Ibid.
Secret Service. Ibid.
www.security.estec.com/education/ 40 Coursey, David. First Was Phishing,
14 Urban Legends Reference Pages:
phishingSample.htm> Next Is Pharming 2 February 2005.
Crime (Nigerian Scam).
29 Phishing Samples. Mortgage eWeek.com. Retrieved 28 November
Snopes.com. Retrieved 30 November
Investments.com. Retrieved 30 2005 <http://www.eweek.com/
2005. <http://www.snopes.com/
November 2005 <http:// article2/0,1759,1758874,00.asp>
crime/fraud/nigeria.asp>
www.mortgage-investments.com/ 41 Internet Fraud Preventive Measures.
Ibid.
The e-Law Center takes pride in the appointment of former Dean of the Arellano University School of Law and
former Chairman of the Arellano Law Foundation

Hon. Antonio B. Nachura

as Associate Justice of the Philippine Supreme Court.

34

WHAT YOU SAY IN CYBERSPACE MIGHT INCRIMINATE YOU
T his news report that
hugged global headlines today should
serve as a timely reminder to all
netizens to be more circumspect and
prudent in their conduct in cyberspace.
I am deeply sorry and I apologize for
letting down my family and the people
of Florida I have had the privilege to
represent. This was the simple
statement of American Republican
congressman Mark Adam Foley,
who served his legislative district in
Florida for six terms, when he
tendered his abrupt resignation last
Friday (29 September 2006), thereby
ending his flourishing legislative
career, following the revelation of a
scandal involving inappropriate e-mail
exchanges between him and some
teenage male legislative pages.
Allegedly, Foleys electronic messages
included asking a page if he made him
horny, and in another wanting to take
off the teenagers clothes, or asking
for a photo of the boy. He transmitted
the messages using his personal
account in America On Line (AOL),
Maf54, the same account he
<< [ 5 ] Vulnerability of Internet Voting
could override his Internet vote with
his paper vote. In that election, the
percentage of the e-vote as against the
total votes cast was only 1.85%
because the availability of card
readers among the e-voters was not
that common.
Even if the same system is applied in
the Philippine setting, the card reader
does not effectively address the
concerns on Internet voting. Beside the
fact that we do not have the requisite
ID for the card reader, what would
prevent an e-voter from passing to
another his identity card for a price?
IT-Related News
By Jaime N. Soriano
allegedly uses to communicate with
Florida Governor Jeb Bush.
ABC news released in its website nine
pages of the alleged excerpts of
Foley s messages
abcnews.go.com/WNT/BrianRoss/
(http://
story?id=2509586&page=1; with a
strong advisory for readers to exercise
utmost discretion because of the
sexually explicit language).
In a report, Republican congressman,
John Shimkus of Illinois, who oversees
the legislative page program in the US
Congress, said that he learned of
Foley s inappropriate electronic
messages in the late 2005 and took
immediate action to investigate the
matter.
CNN reports that the page program,
which brings young people from
around the country to work on Capitol
Hill, came under intense scrutiny in
1983, after two lawmakers Rep.
Gerry Studds, a Massachusetts
Democrat, and Rep. Dan Crane, an
Illinois Republican were censured
following their admission they had
Switzerland developed test projects to
allow citizens to vote via the Internet
or by SMS. The tests in Geneva, in
particular, have been controversial,
because Internet voting might not satisfy
the laws that ensure that any citizen
can check how the vote is conducted,
according to Wikipedia.
Internet voting may work on an on-
site and controlled basis. But I have
serious doubts whether at the moment
it will work well in a remote and
uncontrolled environment.
And the biggest hurdle still is that there
is nothing in the Omnibus Election
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
consensual sexual relationships with
17-year-old pages. Neither lawmaker
resigned, but Crane was defeated for
re-election in 1984. Studds survived
the scandal and continued to serve in
the House until retiring in 1996.
Ironically, Foley was the founder and
co-chair of the Congressional Missing
and Exploited Childrens Caucus. He
did play key roles in passing recent
legislation on child protection such as
the Volunteers for Children Act (that
gives organizations working with
youths access to FBI fingerprint checks
to make sure that child molesters are
not hired), the Sex Offender
Registration and Notification Act (a
bill already approved by the US
Congress that seeks to overhaul the
national monitoring system for
predatory pedophiles by closing legal
loopholes), and co-sponsored
legislative measures to eliminate child
pornography and exploitive child
model sites on the Internet.
So the next time you hit that keyboard
in your computer to send on-line
messages, think again.
Code (Batas Pambansa Bilang 881, as
amended), the Overseas Absentee
Voting Act (Republic Act No. 9189),
the Election Modernization Act
(Republic Act No. 8436), or the newly
signed Automated Election System Law
(Republic Act No. 9369) that gives legal
imprimatur to the COMELEC to
implement Internet voting.
I wish our poll body pushes through
with election automation with the much
more vigor and enthusiasm than it does
with Internet voting. Otherwise, we
could not be blamed if we perceive
that there must be something fishy.
35
 << [40] Virtual Law Class
legal literature as they are all made
available in electronic form and
integrated in the site on a per module
basis, (d) could engage and indulge in
healthy and stimulating on-line
discussion with their professor and
among themselves about legal issues
involving the subject through the
various fora and blogs found in the
website, and (e) are able to view
privately and confidentially their
individual ratings in graded class
activities, except their final grades, as
well as suggested answers on
examination questions to ensure better
transparency in student performance.
On the other hand, the on-line course
also allows the professor: (1) to
administer on line examinations, both
objective and essay questions, (2) to
view individual and over-all class
performance on demand, (3) to
answer on-line questions of my
students on difficult or misunderstood
or complicated legal issues about the
subject, and (4) to control and monitor
students activities in the interactive
course, as each student is required to
enrol, register and utilize their own
secured username and password to be
a part of the on-line community.
The modules and the related reading
literature were organized in such a way
that would stimulate learning,
understanding and analysis of the
subject and that students are not simply
spoon fed with legal information. The
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
site also generates and sends, and
automatically notifies the students of,
updated information about on-line
activities through their private e-mails.
In the very near future or next semester
perhaps, a podcast (audio and/or
video) would be integrated in this
virtual law class.
The on-line course, which may be
found at http://www.soriano-ph.com/
law-class/, was made possible using
the open-source course management
system of Moodle.
36
<< [40] AsianLII Philippine Launch
<< [20] CyberLaw Jurisprudence
The Supreme Court took note of the
legal mandate on the utmost
confidentiality of proceedings involving
violence against women and children
set forth in Sec. 29 of Republic Act
No. 7610 (Special Protection of
Children Against Child Abuse,
Exploitation and Discrimination Act),
Sec. 44 of Republic Act No. 9262
(Anti-Violence Against Women and
Their Children Act of 2004), and Sec.
40 of A.M. No. 04-10-11-SC (Rule
on Violence Against Women and Their
Children) effective November 15, 2004.
This judicial pronouncement perhaps
should serve as a useful guide to all
other Internet domains and websites
that provide a repository of legal
information, case laws, and on-line
reports of cases involving violence and
abuse of women and children in the
Philippines.
<< [11] Digital Copyright
In another legal challenge, dubbed as
the most important intellectual property
case in decades, lodged by a
consortium of twenty-eight movie
studios and record labels, the US
Supreme Court held in the case of
MGM Studios, Inc. v. Grokster, Ltd.
that in the process of marketing file
sharing software, the file swapping of
P2P companies induces copyright
infringement and may constitute piracy
of intellectual property rights.
The ponente in the Grokster case,
Associate Justice David Hackett Souter
To know more about Asian LII,
see the LegalWeb portion of this
journal.
Endnotes
1. http://www.arellanolaw.edu/
2. h t t p : / / w w w .
supremecourt.gov.ph/justices/
cj.puno.php
3. http://www2.austlii.edu.au/
~graham/
4. http://www.unsw.edu.au/
5. http://www.austlii.edu.au/
6. h t t p : / / w w w. b a k e r c y b e r l a w
centre.org/
7. http://www.lawphil.net/
<< [40] SC e-Library Launched
Judicial Academy (Philja), Office of the
Court Administrator (OCA), Judicial
and Bar Council (JBC); Officials of the
Action Program for Judicial Reform
(APJR) partners of the SC; editors of
law school journals published in the E-
Library; and law students. Upon prior
arrangement with the SC E-Library
Committee, other government
personnel may access the E-Library.
The E-Library may be accessed
through http://elibrary.supremecourt.
gov.ph. It is maintained by a staff led
by Director Milagros S. Ong of the SC
Library Services.
The information for this article was acquired
primarily from Ivan M. Bandals article SC
E-Library Opened to Law Students, 28
February 2006, Court News Flash February
2006 (http://www.supremecourt.gov.ph/
news/courtnews%20flash/2006/02/
02280602.php)
of the US Supreme Court, said:
"We hold that one who distributes
a device with the object of
promoting its use to infringe
copyright, as shown by clear
expression or other affirmative
steps taken to foster infringement,
is liable for the resulting acts of
infringement by third parties."
Legal controversies involving digital
copyright are far from over especially
with the way the Internet becoming a
way of life for most people. In fact,
the legal battle has just began.
 The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
<< [39] Declaration on Free Access * Wits University School of Law Endnotes

Made at the 4th Law via the Internet
Conference in Montreal on 3 October
2002 by representatives of the
following legal information institutes:
* Australasian Legal Information
Institute
* British and Irish Legal Information
Institute
* LexUM/Canadian Legal
Information Institute
* Hong Kong Legal Information
Institute
* Legal Information Institute
(Cornell)
* Pacific Islands Legal Information
Institute
* University of the West Indies
Faculty of Law Library
As amended by the representatives of
the following legal information institutes
present at the 5th Law via the Internet
Conference in Sydney, November
2003:
* Australasian Legal Information
Institute
* British and Irish Legal Information
Institute
* LexUM/Canadian Legal
Information Institute
* Hong Kong Legal Information
Institute
* Pacific Islands Legal Information
Institute
* South African Legal Information
Institute
1. See <http://www.worldlii.org/worldlii/
declaration/montreal_en.html>
2. The amendements were: (i) in the title
of the Declaration, `public' was changed
to `free'; (ii) the words `where possible'
were deleted from the second bullet
point `where possible, free of charge';
(iii) addition of the description of a legal
information institute and the
encouragement to participate in
networks; and (iv) addition of the final
bullet point about an annual meeting to
the list of areas of agreed cooperation.
3. The amendments were: (i) the words "It
also includes legal documents created
as a result of public funding." were added
to the end of para 2 after 'boards of
enquiry': (ii) the words "To provide to
the end users of public legal information
clear information concerning any
conditions of re-use of that information,
where this is feasible." were added to
the final list of bullet points.

<< [18] Downloading Music 2.
3.
for the recording and motion picture 4.
industry. Content and service providers 5.
have become more prudent in 6.
complying with legal requirements such
as the imposition of fees as imposed 7.
by the DMCA. Recent developments 8.
in technology have incorporated 9.
hardware and software control devices 10.
that would enable content and service
providers to effectively monitor music
transmission in the Internet. Internet 11.
users who log-on to music websites are 12.
13.
provided notice though the websites
Terms of Use disclosing to users strict
compliance with copyright laws. 14.
15.
16.
The development of technology and 17.
the enforcement of copyright laws are 18.
pitted against each other. There must 19.
be a clear cut policy that would strike 20.
a balanced application of technology
and copyright laws to give legal
authorities adequate guidance in 21.
imposing liabilities. Otherwise, the
lowly Internet user will continuously 22.
and conveniently be put at the
crossroads.
23.
Endnotes
1. Daniel J. Gervais, Transmission of Music
in the Internet: an Analysis of Copyright 24.
Laws (Vanderbilt Journal of Transnational
Law, Vanderbilt University Law School,
November 2001; Retrieved from http:/ 25.
/aix1uottaa.ca/~dgervais/publications/
Transmissions.pdf)
Ibid. << [23] Most Visited Dailies
Ibid.
Ibid. New York Times that ranks 57 as of
Ibid. today based on Netcraft statistics of top
Paul Supnik, Music on the Internet,
100 most visited websites.
United States Perspective (Retrieved
from http://www.supnik.com)
Ibid. As to major Philippine television
Ibid. stations, and here is the result: 1st:
Ibid.
ABS-CBN-2 (70,691*); 2nd: GMA-7
Retrieved from http://
en.wikipedia.org/wiki/ (82,046); 3rd: STUDIO-23
MGM_Studios%2C_Inc._v._Grokster (909,866); 4th: ABC-5 (1,082,117);
%2C_Ltd. and, 5th: NET25 (1,441,341). All the
Supra, footnote 6, at 10
other networks did not show any
Ibid.
A&M Records v. Napster, Inc. [2001 US *global ranking.
App. LEXIS 1941, No. 00-153001, slip
op. at 2206 (9th Cir., Feb. 12, 2001)] And if you are also wondering which
Ibid.
among the television network in the
Ibid.
Ibid. world rank first in terms of net clicks, it
Supra, footnote 1, at 6 is the BBC NEWS of the United
Ibid. Kingdom that ranks 8 as of today based
Ibid.
on Netcraft statistics of top 100 most
Atty. Rey Beckerman, How the RIAA
Litigation Process Works (Comments, visited websites. US-based Fox News
Copyright 2006, retrieved from http:// and CNN rank 11th and 15th,
www.findarticles.com, 11 July 2006) respectively.
David McGuire, Comments (Retrieved
from http://www.washingtonpost.com,
19 December 2003) << [40] ICT Roadmap
David McGuire, Congress May Act on response of the Commission on
Internet Piracy Bill (Retrieved from
Information and Communications
http://www.washingtonpost.com, 16
November 2004) Technology (CICT), through Sec.
Atty. Adrian S. Cristobal Jr., For a Song Ramon P. Sales (Chair, CICT) to the
(Retrieved from http://www.oped Civil Society Comments on the Draft
@businessmirror.com.ph, Business
Mirror, 18 May 2006)
Roadmap. Said comments were the
Policymakers Press for Updates to result of a previous forum conducted
Copyright Law (BusinessWorld, 14 16 September 2006 at the ISO. The
September 2006, p. S1/17) forum was hosted by the Foundation
In Search of a Clear National IP Strategy
(BusinessWorld, 14 September 2006, p.
for Media Alternatives.
S1/17)

37
 LegalWeb

WWW.ASIANLII.ORG
Asian LII Brochure, Version 20.
Prof. G Greenleaf, Prof A. Mowbray, Mr P Chung, AustLII Co-Directors
http://www.asianlii.org/asianlii/brochures/AsianLII_brochure.pdf

This section is a continuing series legal information institutes

of articles featuring various
(LIIs) belonging to the Free
websites which may be relevant
to legal practitioners, legal Access to Law Movement.
researchers, and law students. AustLII provides the largest
online facility for Australian
Free access & non-profit legal research

T he Asian
Legal Information Institute
(AsianLII - www.asianlii.org) is
a non-profit and free access
website for legal information
from all 27 countries and
territories in Asia located
from Japan in the east to
Pakistan in the west, and from
(www.austlii.edu.au) and
coordinates the World Legal
Information
( W o r l d L I I )

Commonwealth Legal
Information
( C o m m o n L I I )
<www.commonlii.org>.
Institute

<www.worldlii.org> and

Institute

This experience is now being

Mongolia in the north to
Timor Leste in the south.
Access to AsianLII is free.
AsianLII will be launched for
free public access on 8
December 2006 in Sydney.
Launches in a number of
Asian countries will take place
in the first half of 2007,
beginning with the
Philippines.
Facilities
AsianLII provides for searching and
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
applied to access to Asian
law.
AustLII receives funding
support for development of
AsianLIIs infrastructure from
the Australian Research
Council, for inclusion of
The homepage of the Asian Legal Indformation Institute (http:// content from six jurisdictions
www.asianlii.org). The website was launched in December 2006.
from AusAIDs Public Sector
Linkages Programme (PSLP)
(Indonesia, Cambodia, Thailand,
For every country, AsianLII will also Vietnam, the Philippines, and Macau),
contain an extensive Catalog of law- and for inclusion of content from four
related websites for that country (parts other jurisdictions from the Australian

browsing databases of legislation, case- of the largest law catalog on the Attorney-Generals Department (India,
law, law reform reports, law journals Internet), and a Law on Google Singapore, Malaysia and China). PSLP
and other legal information, where facility assisting users to search Google assists development linkages between
available, from each country in the only for legal materials from that Australian public sector organisations
region. At launch it will provide access country. and those of Asian countries. AsianLII
to nearly 100 databases drawn from is also supported by APECs SELI
almost all 27 Asian countries. Over Developers, partners and (Strategic Economic Legal
140,000 cases from at least 15 supporters Infrastructure) Coordinating Group.
countries, and over 15,000 pieces of Other regional institutions are
legislation from at least 18 countries AsianLII is being developed by the welcome to join in supporting AsianLII.
will be searchable. All databases can Australasian Legal Information Institute
be searched simultaneously, or (AustLII), a joint facility of the Law Development approach AsianLII
searches can be limited to one Faculties at the University of
country s databases or other Technology, Sydney (UTS) and the Asia is a region of wide diversity of
combinations. Search results can be University of New South Wales languages. We will aim to include in
ordered by relevance, by date, or by (UNSW), in cooperation with partner AsianLII as much legal information as
database. institutions in Asian countries and other possible in the English language, so as

38

to provide a common linguistic
platform for comparative legal
research. At the same time, we will
obtain wherever available legal
materials in national and local
languages other than English and also
make them accessible via AsianLII.
AustLIIs own search engine (Sino) is
being developed to allow it to search
data in any language (via conversion
into Unicode). Hypertext links between
the versions of the same document in
different languages will be provided
wherever possible. User Guides will
be available in various languages used
in Asia.
The databases searchable via AsianLII
will in most cases be located on the
AsianLII servers located at AustLII,
where they will be converted into a
common format. In many cases the
same data will also be able to be
obtained from the websites of our local
partners. Where a local legal
information institute with sufficient
technical capacity already exists (such
as HKLII for Hong Kong or PacLII in
relation to Papua New Guinea law), a
constantly synchronised mirror copy of
the LII is located at AustLII for searching
purposes, but search results from
AsianLII searches return the user to the
local LII.
Encouraging local capacity
One aim of the AsianLII project is to
assist development of the local capacity
of our partner organisations to develop
and maintain independent local legal
information to the standards of worlds
best practice, and to integrate them
into international free-access law
networks such as AsianLII, CommoinLII
and WorldLII. Where possible and
requested, AustLII will provide technical
assistance to our partner institutions to
develop these capacities. This may
include the provision of AustLIIs Sino
search engine and other software for
LII development. It may also include
AustLII support for applications by local
partners to obtain resources. Some in-
country training will be provided for
our AusAID partner institutions.
DECLARATION ON FREE ACCESS TO LAW
http://www.worldlii.org/worldlii/declaration/
In October 2002 the meeting of LIIs
in Montreal at the 4th Law via Internet
Conference, made the following
declaration[1] as a joint statement of
their philosophy of access to law. There
were some further modifications of the
Declaration at the Sydney meeting of
LIIs in 2003[2] and at the Paris meeting
in 2004[3].
Legal information institutes of the
world, meeting in Montreal, declare
that:
* Public legal information from all
countries and international
institutions is part of the common
heritage of humanity. Maximising
access to this information
promotes justice and the rule of
law;
* Public legal information is digital
common property and should be
accessible to all on a non-profit
basis and free of charge;
* Independent non-profit
organisations have the right to
publish public legal information
and the government bodies that
create or control that information
should provide access to it so that
it can be published.
Public legal information means legal
information produced by public bodies
that have a duty to produce law and
make it public. It includes primary
sources of law, such as legislation, case
law and treaties, as well as various
secondary (interpretative) public
sources, such as reports on preparatory
work and law reform, and resulting
from boards of inquiry. It also includes
legal documents created as a result of
public funding.
A legal information institute:
* Publishes via the internet public
legal information originating from
more than one public body;
* Provides free, full and anonymous
public access to that information;
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
* Does not impede others from
publishing public legal
information; and
* Supports the objectives set out in
this Declaration.
All legal information institutes are
encouraged to participate in regional
or global free access to law networks.
Therefore, the legal information
institutes agree:
* To promote and support free
access to public legal information
throughout the world, principally
via the Internet;
* To cooperate in order to achieve
these goals and, in particular, to
assist organisations in developing
countries to achieve these goals,
recognising the reciprocal
advantages that all obtain from
access to each other's law;
* To help each other and to support,
within their means, other
organisations that share these
goals with respect to:
* Promotion, to governments
and other organisations, of
public policy conducive to the
accessibility of public legal
information;
* Technical assistance, advice
and training;
* Development of open
technical standards;
* Academic exchange of
research results.
* To meet at least annually, and to
invite other organisations who are
legal information institutes to
subscribe to this declaration and
join those meetings, according to
procedures to be established by
the parties to this Declaration.
* To provide to the end users of
public legal information clear
information concerning any
conditions of re-use of that
information, where this is feasible.
>> [37] Declaration on Free Access
39

ASIAN LEGAL INFORMATION INSTITUTE
LAUNCHED IN THE PHILIPPINES
By Jaime N. Soriano
T he Arellano Law
Foundation[1] launched the Asian
Legal Information Institute in the
Philippines (http://www.asianlii.org)
in simple ceremonies at the Century
Park Hotel in Manila on 10 January
2007 with no less than Chief Justice
Reynato S. Puno [2] of the Philippine
Supreme Court as Guest of Honor and
Speaker.
The affair was also attended by legal
luminaries, law deans and professors,
government functionaries from the
judiciary and the foreign affairs
E-LAW EXECUTIVE DIRECTOR
INITIATES VIRTUAL LAW CLASS
The Philippine Quarterly IT Law Journal :: Volume 3, Number 1
B eginning Second
Semester of School Year 2006-2007,
Atty. Jaime N. Sorianos law classes in
Civil Procedure and Remedial Law
Review at the Arellano University
School of Law went interactive to
complement his weekly class
discussions. Said on-line course in law
is the first of its kind in the country.
Through the on-line phase of the
course, his law students (a) could take
40
The Center and the Society
department, the Australian embassy in
The launch was made possible through
Law Professor Graham Greenleaf
[3]
T
the Philippines, and other personalities.
of the University of New South Wales
(UNSW) [4] and co-director of the
Australasian Legal Information Institute
(AustLII) [5] and the Cyberspace Law
and Policy Centre. [6]
Asian LII aims to facilitate and promote
comparative research, make laws of
Asia-Pacific countries more accessible,
encourage international trade and
investment, and provide the
many other benefits of free
access to law.
The Arellano Law Foundation
was chosen as Asian LII partner
because of its LawPhil
Project, [7] one of the countrys
leading website that provides
free access to useful Philippine
legal information.
<< [36] AsianLII Philippine Launch
a diagnostic test upon enrolment to
measure their readiness to take the
subject, and other measurement and
assessment tools as well during the
duration of the course, (b) can view O
the course outline divided into modules
as well the pertinent laws and cases
that would be the subject of class
discussion during our weekly meetings,
(c) need not spend much time in
libraries to read and study the assigned
<< [36] Virtual Law Class
SUPREME COURTS
E-LIBRARY LAUNCHED
The nationwide
launching of the the Supreme Court
E-Library was held at the Arellano
University School of Law library in
Pasay City on 20 February 2006, with
live simulcast via the Internet with seven
other law schools, which already have
access to the E-Library, located in
different parts of the country. The other
participating schools, besides Arellano
University School of Law, were Saint
Louis University in Baguio City, Aquinas
University in Legaspi City, University
of San Carlos in Cebu City, Silliman
University in Dumaguete City, Xavier
University in Cagayan de Oro City,
Mindanao State University in Marawi
City, and Ateneo de Davao University
in Davao City.
The SC E-Library is the first fully
searchable web-based digital library
in the Philippines. Those currently
authorized to access the E-Library are
Justices; Judges; clerks of courts; court
librarians; and officials of the Philippine
<< [36] SC e-Library Launched
THE PHILIPPINE
STRATEGIC ICT
ROADMAP
n 27 November 2006, Atty.
Jaime N. Soriano, executive director
of the e-Law Center, and Mr. Michael
Vernon Guerrero, former president of
the IT Law Society (2004-2006),
attended a public forum at the Institute
of Social Order (ISO) at the Ateneo
de Manila University (AdMU), entitled
Civil Society Interrogates the
Philippine Strategic ICT Roadmap.
The highlight of the forum was the
<< [37] ICT Roadmap