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Legal Pundits Pan Internet Exceptionalism
Back in Brown writes: "This article from today's Wall St. Journal (via MSNBC) presents the viewpoints of several legal commentators that the Internet should be treated like any other invention and not subject to novel legal interpretations. 'The steam engine ... probably transformed American law, but the "law of the steam engine" never existed.' Another quote: 'cyberbuffs are afflicted with "insufficient perspective, disdain for history, unnecessary futurology and technophilia."'"
Any law is basically a set of rules that citizens agree to abide by. By that definition, the GPL is a law. A number of specialised legal thinking is occuring to consider how to handle the various issues .... see for example in Australia
s p# opensrc
:-).
http://www.law.qut.edu.au/research/conference.j
We can apply certain principles of contract law and even tort, but ultimately, the unique economics of information services require somewhat different approach than matter-based products. For example, how do you price risk? Are the CreativeCommons an orthogonal set of "rights"? How does one detect and punish fraud (a big concern given the antics of Enwrong and WorldCon).
When the lawyers start getting their IP infringed upon, I'd like to see how they start to react
LL
In the United States Constitution, many areas are reserved in law to individual states, but in the modern world they need to be uniform across the whole U.S. So instead of amending the Constitution to hand these areas over the the federal government, the states have created "model" laws by agreement, with each state enacting a copy.
This same procedure is happening in the world right now, but there is no public debate about how these laws are determined. We are often assuming that we "must" have the DMCA since it is an example of a United Nations model law about copyright.
But where is the elected body that created that model law? Our traditional manner of enacting laws is to elect representatives to reflect our wishes, flawed as that is. Where were the elections to the WIPO that created these draconian "Internet" laws? We need to return to traditional ways of democracy, even if there are new areas that need to be clarified.
Compare the act of defacing a web site with thatof spray-painting a brick and mortar store front. Graffiti is basically the same, whether it's on a web site or in the real world. We don't need a new
law that applies specifically to the former; instead, we should simply charge
the kiddies with vandalism, just as we would if they did the latter.
The whole idea, inelegantly explained in John Perry Barlow's Declaration of the Independence of Cyberspace,
is that we should NOT resort to 'charging the kiddies with vandalism', just
like you'd do in real life. Cyberspace has it's own set of rules and, in
this case, recognizes that script kiddies that deface websites are prevalent
and that webmasters are responsible for keeping their sites secure. A rather
drastic form of personal responsibility, perhaps, but congruent with the
underlying meritocratic philosophy that states: "If you can't stand the heat
get out of the kitchen!"
Morel
(Thanks to Harry Truman for the quote)
Proof that the author and those quoted don't really understand what they're dealing with lies in the underlying assumption that one nation's laws can be binding on something like the internet.
... the internet." It is merely that a nation's laws can be binding upon the French subsidiary of Yahoo, over whom it had plain and simple jurisidiction. As much as some would like to pretend that Yahoo France is a "virtual" company residing in the internet, the Nazi paraphernalia case is a very bad poster boy for accusations of virtual jurisdiction.
Straw man. The "assumption" is not that "one nation's laws can be binding on
Yahoo WAS a bad citizen in this case, and was slammed accordingly. Under US law, this result seems foolish and foreign, but we in the US do not get to impose our constitution on France -- a place brutally savaged by the Nazis. France applied its own law as against its own corporate citizen and its parent, a citizen that faced pretty bad and ugly facts in its own defense, using traditional notions of extraterritoriality.
Yahoo is probably not the best example to suggest that these authors don't "get it." Indeed, the poster seems to have as much difficulty understanding the law as he insists these jurists are having difficulty understanding the tech.
In fact, Lessing was wrong - there is a "law of the horse". One of the earliest legal codes we have, from one of the Scandanavian kings (Ranulf?), has at least two horse-specific laws. And they're interesting.
One law provided that, if a horseshoer made a horse temporarily lame, (which happens occasionally, more often with inept horseshoers) they had to provide a loaner horse until the hoof healed up. This is perhaps the first piece of consumer protection legislation. Note that it's very specific, and, like modern "lemon laws", places the blame unambiguously on the service provider. It's not a general tort or liability law; it's a law that arbitrarily assigns blame for a specific, common problem.
Another law provided that that if someone borrowed a horse and rode it around the village, they were guilty of a minor offense, but if they rode it out of the village, they were guilty of a major offense. Some jurisdictions make that distinction today in auto theft cases, mostly for juveniles.
So the law of the horse did exist when horses were important.
There's a sizable law of steam. Start with the ASME Boiler Code, which is very specific and has the force of law in many countries. Boilers used to blow up frequently before there was law that set standards for boilers and the people who design and build them. The U.S. safety regulations for steam locomotives (49 CFR 230) are still valid and enforced. There's a National Board of Boiler and Pressure Vessel Inspectors.
For a history of the law of steam, see page 35 of this recent boiler explosion investigation report. There's a law of steam for good reason. The first law of steam was enacted in the US in 1838, after a riverboat blew up, killing 300 people. The issue remains; a steam locomotive blew up in 1995, killing several people.
Thus, claims that there is no "law of the horse" or "law of steam" are false. Such laws exist.
This is not new. If a person sues a mail order company, where is the case going to be held? The same principals that have historically been found in contract law between two parties who form an obligation in differentjurisdictions should apply to cybercases and I have not seen a compelling argument to demonstrate that Congress and the Judiciary should tackle the Internet CyberHighWay with new laws.
"There ought to be limits to freedom"
We have Shipping Law,
Trade Law,
Aerospace Law,
Media Law,
Entertainment Law,
Mining & Resources Law,
Telecommunications Law,
Why not Cyberlaw?
It's not that the law is different, it's just another subject-matter specialty.
It's not exactly "why do the British drive on the left side of the road and most anybody else on the right side?" - particularly when the list of countries which drive on the left hand side includes most of Asia:
Asia: Indonesia, Bangladesh, Hong Kong, India, Japan, Malaysia, Singapore, Thailand, Sri Lanka, Bhutan, Pakistan, Nepal, Brunei.
Oceania: Australia, Papua New Guinea, New Zealand, Tonga, Solomon Islands, and Fiji.
Indian Ocean: Seychelles, Mauritius.
Europe: Cyprus, Malta, Channel Islands, Ireland and United Kingdom.
Africa: South Africa, Uganda, Zimbabwe, Kenya, Botswana, Lesotho, Mozambique, Somalia, Swaziland, Tanzania, Zambia, Namibia, and Malawi.
South America, Central America And The Caribbean: Anguilla, Antigua, Bahamas, Barbados, Bermuda, British Virgin Islands, Cayman Islands, Dominica, Grenada, Jamaica, Montserrat, St Christopher, St Helena, St Kitts, St Lucia, St Vincent, Falkland Islands, Suriname, Guyana, Tobago, Trinidad.
A very good precedent for treating the internet is maritime law. The problem is somewhat similar. When you are in international water it is not exactly clear what law should apply to you. A large body of law exist that govern precisely those situations. A similar approach to internet might be the best.
"IANAL, but if I undestand correctly, the great deal of Western law is based on 'common law', the practice of allowing previous court decisions to affect future decisions."
(Some vast oversimplifications follow)
Common law is strongest in English-derived legal systems. Most other Western countries are founded on civil law. Common law is where the rules of law are largely made by judges in resolving particular cases. Civil law focuses more on writing the law down ahead of time.
Common law tends to be more organic - it grows. Civil law is more designed. Both do try to achieve consistency and fairness. If two people lose fingers in work accidents, both systems try to award similar numbers to the two individuals. Common law is more likely to look at previous cases, civil law is more likely to have a table of damages created before the case crops up.
Each has strengths. Common law does not require thinking of everything ahead of time. Civil law puts everyone on better notice. The unpredicatability of common law, versus the "oops, missed a spot" aspect of civil law is one of tradeoffs.
Whether "cyberspace" if you think it exists would be better governed by civil or common law, is an entirely separate question from the one that started the thread. It may not be best served by the analogical reasoning of the common law, but on the other hand, a civil law approach requires more foresight than anyone has for the environment.
The above are "technical" problems of law that, for the moment, ignore political and social dimensions of "cyberspace" as a community, or "cyberspace" as a fragment of larger pre-existing communities. For example, if "cyberspace" says that it is not responsible for cyber-stalkers of 12-year-old girls in the same way that Arafat says he is not responsible for Hamas, what is the result? The response of "too bad, so sad" isn't going to cut it.