The Year in Internet Law

owenPS writes: "This New York Times article has "excerpts from e-mails written by six legal experts about the year's most important developments in law and technology...As in years past, the common element in the experts' responses seemed to be a sense that Internet law -- and cyberspace itself -- is still unfolding and that new battle lines are forming even as old conflicts are settled.""

Comments

DO SOMETHING FUCKNUT!

[Moray_Reef]

From the Lawrence Lessig interview:

"The more I'm in this battle, the less I believe that constitutional law on its own can solve the problem. If Americans can't see the value of freedom without the help of lawyers, then we don't deserve freedom. We should be working to help Americans recognize freedom again."

I support the ACLU. Do you do ANYTHING?

The following is just a sig.

Re:DO SOMETHING FUCKNUT!

[Flower]

If constitutional law can't resolve this then we are fubared because it is obvious that as a societal entity "Americans" don't give a rip about these issues. For now, I'll stick with the DMCA and skip the USA act.

Big media has a coherent, easy to digest mantra that they have unified behind. The Internet without controls threatens our business and we need legal backing to protect our investments (aka property.) It is a compelling interest that the courts and government have bought into.

We, as geeks/IT professionals/what-have-you, can't even agree to whether code is speech. We have no mantra and our arguments are not easily digestable for the masses. I have yet to find one co-worker/family member/man on the street who gave a damn that DVDs can't be viewed under linux, that Dmitry was arrested, or that computer security researchers feel that they have to think twice before publishing.

These issues are too remote for 99% of the public to care about. And just as the courts decided in the Felton case and as can be read in the copyright office's report, most people don't see these concerns as being ripe. In the age of Napster where infringement is so common that music on the Internet has no worth what argument can you craft that can be heard over that of Big Media? When the RIAA can point to kids hording gigs of MP3s that no one, including the artist, has seen a dime on and then further point out that they are "sharing" these files what hypothetical is going to convince your congress-critter that something like the DMCA is a bad thing?

Please be aware that I am in full agreement that for those who care about these issues we need to be politically active. But I look at these issues and sorry to say I don't see the next civil rights movement here.

This kind of thinking is necessary

[Adversive]

The internet is not owned by a single country and is not governed by a central authority. Laws that apply in one state or country may not necessarily reflect the laws or customs in another.

Things like sales tax, censorship, and criminal law take whole new meanings online and cannot be held to the old standard. Napster's distribution model disagreed with the old thinking, but proved that not everything can be applyed to those laws.

It's important to realize this before the internet ceases to be relatively free.

To access this article without registering

[Adversive]

NY Times will let you access their articles without registering, but you have to already be on their site to do it.

1. Click the original link from the headline:

http://www.nytimes.com/auth/login?URI=http://www.n ytimes.com/2001/12/28/technology/28CYBERLAW.html

2. From that URL, replace the first "www" with either the word "archive" or the word "college".

That should let you view it without logging in.

Shipping Law...

[MosesJones]

What always suprises me about "internet" law is that international shipping law is never mentioned with it. Take the following standard case

Shipping company is Danish lets say Maersk
Sony want to ship 100,000 units from its Corp HQ in Japan to its Inc in the US.

The ship is due to go via Hong Kong for loading onto a larger container ship, it will also go via the Panama canal.

In the carribean it is hit by a freak storm and the articles are damaged.

The contracts that Sony have with Maersk will have clearly defined countries in which the court cases will take place and for the most part this is defined by Maersk.

Why are the internet cases any different, the basic model is the same.

Of course it could just be lawyers generating money for themselves.

Re:Shipping Law...

[Gorgonzola]

Although the analogy you bring up certainly has merits, it is, as analogies often are, flawed. In the case of the internet it is quite hard to identify where each of the 100,000 units in your example are at a given time. It is not even possible to tell which route they took after the transaction has been completed. On top of that, the reason why the international shipment cases work the way they do is that most jurisdictions have exceptions in their laws specifically for the transportation of physical goods in order to make international trade easier to work from a legal perspective. These exceptions are specifically designed for these cases and are not necessarily easily applicable to internet transactions. Moreover, most of these national rules that allow other legal systems to take precedence over national law by contract, do not allow such clauses in cases were consumers are involved. Otherwise their consumer protection laws would be rendered invalid because every corporation would consider for example Afghan law to be applicable for any transaction you as an end-user would have with them and put such a clause in their standard contracts.

most incisive comment of the lot

[kubla2000]

Cass Sunstein
University of Chicago Law School


2. The growing belief that copyright law and the First Amendment are on a collision course. When some people's copyright protections mean that other people can't say what they want to say, there is going to be a constitutional issue. The issue has been neglected for decades. It isn't being neglected anymore.

The full brunt of this issue will come as a sharp slap to the face of everyone involved in this industry if Microsoft, Adobe and others are allowed to continue to get away with gag orders restricting or preventing the announcement of security holes.

It will make an interesting test case when one company sues another for, say, loss of data and it turns out that the defendant was prevented from making it known to the plantif that its IP was at risk because of a third company's restriction on the defendant's ability to act on a security flaw they knew about which would have saved the plantif's data.

Let's say that the defendant is hosting a credit-card brokerage's database. Let's say that the database is compromised and data is stolen at great cost to the brokerage. They'd be insured, sure, but might take action if they learned that the defendant was aware of security holes in the database. What happens when the defendant says that they were aware of the hole but were unable to patch because a patch hadn't be released and were unable to notify their client because of a gag order imposed by the lawyers of the company that produced the database?

Re:most incisive comment of the lot

[kubla2000]

erm, you're probably trolling but...

The damages could be even more severe if the products selected are "free software" because the Defendant is more morally culpable as well as financially liable (i.e., there will be a presumption by the court that non-free software performs better and the burden will be upon the Defendant to prove otherwise at a very awkward moment

Fortunatly, courts and court-decisions are not about presumptions but about fact-finding and establishing (in the case of law suits) whether the accusation of neglegance or malicious intent were/are substantive

The moral of the story is to do proper Technology Assessment before deploying anything at your customer's site, carry insurance and try to get it in writing that you aren't responsible if anything goes wrong.

erm, no again. The moral of the story is that if your reading of the moral of the story is correct, then innovation will not only be crushed by lack of competition, but because lawyers will become project managers.

There is a world outside USA !

[Anonymous Coward]

surely it should be "American Internet Law" not "Internet Law", in which case not a lot happened since DMCA and RIAA and the like means absolutly nada in the rest of the world, we can copy cd's dvd's whatever we like without dumb lawyers pointing fingers

Re:There is a world outside USA !

[Fjord]

What happens in America is the start of a wave that will happen in other countries. America will use it's economic power to sanction against other countries that don't tow the line of its own industry. This is what globalization means. This is why people protest the WTO.

And in the end, the Americans will look around and say "why do they hate us"?

Necessity of Law

[dunstan]

No, the internet is totally international, but users, content providers, ISPs are all going to be subject to law somewhere. Sometimes this is fairly sound and sensible (e.g. paedophile rings which have been cracked by analysing their internet traffic patterns, but prosecuted on the basis of information stored on their disc drives). Sometimes it isn't (a UK ISP was fined for failing to cancel a Usenet posting which was deemed libelous - the court took the view that they were publishing Usenet rather than a carrier).

The internet may be international, like the sea, but the actors in the network, be they content providers, ISPs or users, are somewhere, and can be subject to law wherever they are. Your views on the law may influence where you decide to live.

If I spend $1,000 on proprietary software in the US, and import it across the wire, I'm still subject to paying UK import duty/VAT even though it's not coming through a port, and the retailer is still subject to sales tax wherever (s)he sold it. If I then make an illegal copy of that software and pass it to my friend, I'm still subject to action under UK law for breach of copyright.

Similarly, if I decode a DVD and make a copy of the content, then DMCA or no DMCA, it's still a copyright breach the same as if I copy a music CD onto a CD-R.

It seems as if the legal head-up-arse syndrome has come from an inability or unwillingness to tackle the subject of copyright infringement at the point where it happens, and instead to try to use law against the wrong targets. Remember, before CD-R the record companies were trying to get a levy introduced onto blank cassettes on the assumption that blank cassettes were only ever used for illegal copying - i.e. to levy for an unproven offence.

What's new isn't the need for law, or even the applicability of law, it's the newfound increase in difficulty of its enforcement. IMHO, there is a particular onus on lawmakers when they make law which forbids something which I can legitimately do today - I need a higher level of proof that such law is necessary and will be effective. Where such law is being introduced for my security then if the case is properly put I will consent to that loss if liberty (e.g. drink driving laws). Where such law is being introduced for someone's commercial benefit (e.g. the banning of reverse engineering or decoding) I don't find that the burden of proof has been met.

Dunstan

Re:Necessity of Law

[Fjord]

Similarly, if I decode a DVD and make a copy of the content, then DMCA or no DMCA, it's still a copyright breach the same as if I copy a music CD onto a CD-R.

This simply isn't true. I'm sure you are tired of people yelling "Fair Use" at you but you really have to realise that there are cases that allow you to make mix tapes and whatnot under fair use. It is not a copyright breack if I make a copy of a CD for the car (where CDs are more likely to be stolen from than my house). It is not a copyright breach is I encode my CDs onto MP3s so that I can burn them onto a CD and play in my MP3 player. Furthermore, it won't be a copyright breach when I eventually copy my DVDs to a later media or to the same media, with the hope of continued preservation of them. There are reasons we have Fair Use: because it's fair.