Information Technology and the Law

In the U.S. v. American Library Association, the pertinent question in Justice Souter and Justice Ginsburg’s dissent is “whether a local library could itself constitutionally impose […] restrictions on the content otherwise available to an adult patron through an Internet connection, at a library terminal provided for public use. The answer is no.” (p.4) That question is more fundamental than the question of the Constitutionality of the Children’s Internet Protection Act (CIPA). I reach the same opinion as the plurality saying that libraries have a compelling interest to protect minors from objectionable material. I will attempt to argue against the points put forward by Justice Souter in my blog, essentially stating that library restriction of adult usage of public computer terminals is a violation of free speech.

For Justice Souter, library limitation of internet usage is rooted far more deeply than the mechanisms by which it is achieved. It extends beyond the imperfections of filtering technology; it is not even an issue of how responsive librarians are in unblocking the filtering technology. Souter says that allowing libraries to filter information to adult patrons is like “buying a book and then keeping it from adults lacking an acceptable ‘purpose,’” or “buying an encyclopedia and then cutting out pages with anything thought to be unsuitable for all adults.” (p.7 of dissent) This analogy doesn’t seem to fit quite right. The purpose of the limitation is to reduce the secondary effects of exposing minors to objectionable material. Adults “suffer” the consequences of the stricter standards, but presumably most libraries would not invest in materials widely found objectionable. The nature of the internet is such that materials available are not subject to publisher discretion, are not subject to constraints of shelf space, and are not subject to any form of community standards as are even periodicals on sale in book stores. While that freedom makes the internet an ideal forum for free expression of ideas, it also allows for populations not intended to access materials that have relatively little consequence with regard to the exchange of ideas if we assume that most of the material objectionable does not satisfy the Miller Test of having some artistic, political, or literary merit.

Seven out of the nine justices agree to varying degrees that libraries have an interest in limiting children’s access to pornographic materials. Justice Stevens, the only dissenting opinion in that count of seven states that “I agree with the plurality that it is neither appropriate not unconstitutional for a local library to experiment with filtering software as a means of curtailing children’s access to Internet Web sites displaying sexually explicit images.” (p.1 of his dissent) He finds the act unconstitutional for its reliance on unreliable filtering technology that overblocks legitimate material and underblocks objectionable material. So, it seems that libraries should have some means of recourse, limiting patron access where a simple glance at a computer monitor would expose minors to the equivalent of public obscenity.

So, it seems reasonable for libraries to limit patron access to uses that would not, at a casual glance, grossly offend the general community standards (I know, many disagree with the notions of community standards but that discussion is saved for other posts) of public decency, especially in the context of minors. I want to echo Chris’ suggestion in class that an appropriate method of discouraging such use would be to put signs up around computer terminals, informing patrons that objectionable uses may result in fines or confiscation of future usage privileges. This would seem to pass the time, place, and manner standard generally applied to First Amendment cases where it is not a content-based restriction, but the context of the situation that does not afford protection.

I agree with pretty much all of the sentiments expressed by my classmates regarding ICANN, and I think it is worthwhile to examine what changes would be ideal so that the international community can take steps towards governing the internet more effectively.

First, the White Paper that the Department of Commerce (DoC) published outlines the principles and arguments behind their creation of a non-profit to manage the domain name system (DNS). In Background section IV, ICANN it is envisioned to be a

“new private, not-for-profit corporation responsible for coordinating specific DNS functions for the benefit of the Internet as a whole. Under the Green Paper proposal, the U.S. Government would gradually transfer these functions to the new corporation beginning as soon as possible, with the goal of having the new corporation carry out operational responsibility by October 1998. Under the Green Paper proposal, the U.S. Government would continue to participate in policy oversight until such time as the new corporation was established and stable, phasing out as soon as possible, but in no event later than September 30, 2000.”

There was criticism that basing ICANN in the US subjected the rest of the world to US laws. The white paper defended its decision saying that

Because of the significant U.S.-based DNS expertise and in order to preserve stability, it makes sense to headquarter the new corporation in the United States. Further, the mere fact that the new corporation would be incorporated in the United States would not remove it from the jurisdiction of other nations. Finally, we note that the new corporation must be headquartered somewhere, and similar objections would inevitably arise if it were incorporated in another location.

The Department of Commerce’s charter for ICANN has the right goals in mind. Its four principles for creating a separate organization were to maintain stability in the domain naming process, to increase competition (hence privatizing the process), to facilitate “bottom-up” coordination, and to increase representation of the international community. Unfortunately, the execution has not yet lived up to the theory. We have discussed the problems of ICANN’s current structure including the lack of accountability to both the national and international community, the need for more transparency in its pricing practices and trademark dispute resolution, and the want of a more democratic board structure.

The original reasoning behind having a private organization manage DNS was because

While international organizations may provide specific expertise or act as advisors to the new corporation, the U.S. continues to believe, as do most commenters, that neither national governments acting as sovereigns nor intergovernmental organizations acting as representatives of governments should participate in management of Internet names and addresses. Of course, national governments now have, and will continue to have, authority to manage or establish policy for their own ccTLDs.

While it is true that governments can manage their own ccTLDs, the need for dispute resolution on an international scale in the realm of generic TLDs has risen since the inception of ICANN. The problem only seems to tend towards becoming more complicated as ICANN’s practices are not as transparent as disputants might like. When the community was small enough, ICANN’s private, California-based non-profit structure may have been preferable for its ability to be more efficient than a government body. However, the nature of internet usage has changed enough since June of 1998 to warrant restructuring internet governance.

Some have proposed having each international government run its own root server which is beneficial because it takes advantage of an already existing governing body and saves the need for trying to assemble hundreds of countries to come to a consensus in a treaty or a resolution. However, I worry that this would fragment naming practices too much, has the potential to be confusing for users, and is likely to be very costly for corporations who want a uniform name across the world and don’t want to be required to register and pay fees 182 times. There are benefits because more specific names limited to countries would be purposeful for non-commercial activity where people don’t care to register in different countries, saving those domain names in other countries. However, it seems to complicate the current ease of internet use now in making more specific domain names, making it necessary to Google everything in order to find it. As has been discussed before, this presents
its own problems.

So, my solution would be to push internet governance to an international level so that it will be accountable to the international community. The World Intellectual Property Organization (WIPO) website is an agency of the United Nations, has the membership of 182 countries around the world. Whether this is the ideal body through which to conduct a large-scale restructuring of internet governance is debatable (will it be politicians or technologists who are in charge, will international politics come into play where we don’t want it to in this world without borders), either WIPO or a convention with participants are similar to those who are members of the UN seems to be an appropriate forum for undertaking this task. Ideally the resolution would be one that speaks to the four principles that the DoC’s White Paper outlined, most importantly preserving stability of a naming protocol, resolving disputes fairly, and being more representative of internet users at large. I’ve more than doubled my word limit here, but just to throw more ideas out, I envision a transition similar to the US’s in going from the Articles of Confederation (problematic) to the Constitution- countries would either ratify the proposition or not be afforded the benefits of a centralized union that provides stability and dispute resolution. I happen to be a fan of the US’s system of Checks and Balances, so perhaps a court system with a panel of judges agreed upon by disputants to arbitrate would be workable. The risk is bureaucracy and inefficiency, but hopefully those problems could be solved with strict time limits placed on the governing structure to address the needs of internet constituents in a timely fashion. There is still more to say but I must cut myself off now.

There was an interesting article in the BBC news last week that I want to do my posting on in honor of CompuServe v. Cyber Promotions. The article is on a man who got 9 years for sending mass junk emails from false email addresses, violating Congress’s CAN-SPAM Act. The CAN-SPAM Act requires commercial electronic message senders to allow the recipients the option of opting out of receiving the messages. Because Jeremy Jaynes sent the emails with falsified routing information, people couldn’t opt out of receiving his emails. He is appealing on jurisdictional grounds saying that he an out-of-state resident being charged under a Virginia law making it illegal to falsify sender information. The AOL servers his emails went through are located in Virginia. This case draws in many of the topics we have been discussing including jurisdiction, trespass to chattels (although I’m not sure if that was at issue in this case), and liability.

The most interesting part of this case is the sentencing. Jaynes earned up to $750K sending spam each month. On a good year, that means that he was earning $9 million harassing people. If we use punishment as a means of rectifying a wrong, it seems that community service would be an equitable route. Perhaps a punishment similar to that of the defendant in U.S. v. Morris which required networking computers in schools would be fair. If he had to do the equivalent time in minimum wage of the money he made sending emails that violated the Virginia law, it’d take more than a few times a lifetime just to pay off one year’s worth of spam that he sent. Nevertheless, it seems far more productive than sending him to prison. If the statute uses jail time as a deterrent to sending spam, it seems that unless policing is very strict, the incentive to earn a 7-digit income may be more than the fear of getting caught, depending on the costs and benefits for each individual.

Another question in my mind regards his appeal on jurisdictional grounds. The problem of responsibility for another jurisdiction’s laws is growing. The simplest way to make the laws accessible to people who don’t know that they might be operating in another jurisdiction would be to post them on sites (such as the AOL home page), or to put them in the terms of usage in a contract. However, then we encounter the burden of making people read those documents and being responsible for them. The burden of knowing the laws must not be too great because then they would be unreasonable for the average user, but they must not be so low as to allow a $9 million/year spammer off the hook for harassing customers and not allowing them a way out. Perhaps a two-tier structure with a summary of the terms of usage and jurisdictional information linked to a page with the legal jargon would be best to address the needs of users and of service providers in the case of spam?

In the realm of digital property, we seem to be on a slippery slope, trying to force digital communication media into a real property cubby hole. This is dangerous. First, the court in Thrifty-Tel introduced trespass to chattels, saying that the electronic signals sent were tangible enough to support trespass. Dan Burk, in his analysis of digital trespass in “The Trouble with Trespass,” says that “In support of this conclusion, the court cited several cases holding that dust or sound waves can constitute trespass if they cause damage, rather than simply interfering with the use or enjoyment of property.” (p.3) Then, in CompuServe v. Cyber Promotions, the court cited Thrifty-Tel’s finding that electronic signals were sufficient to support an action of trespass. It further argued that spam sent by Cyber Promotions burdened the processing power of CompuServe, and there was harm to subscriber goodwill. Slightly more dubious was the claim that the loss of employee time and resources in attempts to block Cyber Promotions’ spam also deserved remedy. In eBay v. Bidder’s Edge, Bidder’s Edge was enjoined from crawling eBay’s website without eBay’s permission. But, the court did say that “Nothing in this order precludes Bidder’s Edge from utilizing information obtained from eBay’s site other than by automated query program, robot, web crawler, or similar device.” (p.10 of summary we read) While fair in light of the congestion that Bidder’s Edge caused by crawling during peak hours, I would argue that there should have been some other form of trespass other than trespass to chattels where the harm done is to a particular thing, seeing as there is no tangible thing when it comes to the web.

The underlying problem in the cases discussed is that an party’s actions render it difficult for other users to access a website, and also damage the ability of an entity to provide good service to customers. I think discussions of trespass in the digital world must be cognizant of the very public nature of the internet. This is fundamentally different from real property because the value in real property is the privacy and control that it affords its owners. The expectation of users and site creators alike is that websites will be viewed whether that constitutes “entrance” or not. To limit usage by means other than creating membership seems to undermine the basic philosophy of the free sharing that users value in the internet. This is not to say that all people should be able to view everything because some businesses must charge membership fees as a part of their business model in order to sustain the services that they provide their membership. What I am talking about limiting is allowing site creators the ability to select the people to whom they provide access almost indiscriminately as is quite possible with real property, but is not appropriate for the internet.

The damage caused by Bidder’s Edge and the Bezenek boys and CyberPromotions is in their inhibition of a legitimate entity to provide good service to its customers. Perhaps this does not fall under the traditional category of trespass, but it’s what I see at the true problem at the root of these cases, and the only solid defensible wrong that deserves remedy. Of course it would be outright judicial legislation to come up with a completely new category of “trespass” or whatever one might call this new damage. However, sticking to traditional notions of trespass to chattels or real property will create more problems in the imperfections of the analogy than it will solve. For example, see the problems with content monitoring that Intel v. Hamidi seems to be tending towards according to Dan Burk…

Since it’s been 6 days since the beginning of our excursion to DC to watch the MGM v. Grokster oral arguments and the fact that just about everything that I recall here is from memory, let me apologize for the fact that I can only paraphrase some of the amazing questions that I recalled from the justices. My recollection of the experience really does not do the experience justice but I will do my best to share it. I will begin with the experience in the courthouse followed by the experience before and after the courtroom, socializing with parts of the pro bono IP community.

Classmates Unsuspecting Innocent, and Harlan have shared their experiences so I’ll try to cover some new ground. To begin with the oral arguments, I was one of the lucky four able to stay in the arguments behind a majestically large column and an equally regal curtain that blocked my view of all but three justices. There were three remarks by the justices that particularly stood out in my mind. The first remark was by Justice Breyer. He asked Verrilli whether the arguments that he was putting forth would support the VCR, the Xerox machine, and broadcast radio. He went so far as to ask if Verrilli’s arguments would support the legality of the Gutenberg Printing Press! Undoubtedly, this made Grokster’s supporters very happy and it showed that the Justice Stevens appreciated Grokster as a landmark case in the timeline of innovation policy. The second remark was by Justice Ginsburg when she commented that Betamax was not as simple as a “capable of significant non-infringing uses” rule. She commented that had the case been so simple, there would not be an additional 13 pages of clarification on the standards set forth in Sony v. Betamax. Her comment was a gentle reminder that the Court must consider more than just the letter of the law which ties into Justice Scalia’s statement that the case would not be decided on stare decisis. His comment jolted me out of my mesmerized daze as gasps and murmurs spread through the room as one of the most conservative justices essentially said that precedent would not be the key consideration in this case. As the shock wore off, it became apparent that he simply meant to acknowledge the necessity of a practical and normative perspective on this case as the Court’s decision will impact innovation policy in the coming generations.

Aside from Court arguments, one of the unexpected highlights of our trip was the opportunity to experience part of the pro bono technology law world. I was very excited to meet Fred von Lohmann, who represented Streamcast at the district and appellate levels. I asked him how he got to where he was today, and after a short academic and career bio, he mentioned his interest in IP law came after reading EFF co-founder and former lyricist for the Grateful Dead, John Perry Barlow’s article, “Selling Wine without the Bottles.” Eager to be further inspired, I read the article this past weekend. Essentially, Barlow explores our digital age and questions why regulation of digital property is so problematic. In short, Barlow argues that the detachment of information from physical being is what is so problematic because our traditional notions of property all have to do with physical media. In other words, our notion of property protection is more for the bottle than it is the wine. This article is of interest not only because it inspired Fred von Lohmann, but also because it puts forth an interesting way of thinking about our concept of intellectual property rights and is relevant to the class as a whole—I highly recommend it.

One of the fundamental issues in deciding cases is prioritizing society’s values such as when courts “balance” interests when deciding cases. In the BnetD case, the interests that must be balanced include the right of software licensors to make users agree to an End User License Agreement (EULA), or at least scroll and click an “I agree” button, the rights of users to use software that they purchased for not a small sum of money without having to additionally agree to a EULA, and the rights of the parties to contract away the “right” of “fair use” of a copyrighted work.

Our economy is based on the theory of a free market, which the court has protected in antitrust suits, allowing fair uses of copyrighted works as a platform for other modes of expression, and limiting patent and copyright protection. We also generally agree that society wants to promote innovation through patent law, and encourage expression through copyright law.

When we were discussing Sony v. Connectix and Sega v. Accolade in class on Tuesday, the role of reverse engineering in a free market economy came up. In Sony v. Connectix, the court’s conclusion that “Connectix’s reverse engineering of the Sony BIOS extracted from a Sony PlayStation console purchased by Connectix engineers is protected as a fair use.” (Judge Canby’s conclusion) Judge Canby reasons that “the Virtual Game Station is a legitimate competitor in the market for platforms on which Sony and Sony-licensed games can be played […] For this reason, some economic loss by Sony as a result of this competition does not compel a finding of no fair use.” (point 14) Dan P. made the point that when a group of people can perform tasks (i.e. creating games after reverse engineering a product in the case of Connectix and Accolade in the case of Sony and Sega) better than the parent company can at a lower cost, it represents an economic inefficiency which, in the end, is not good for the free market economy.

In BnetD, the same is true. Despite the considerations of rights to contract away fair use rights and the inconvenience of a verbose EULA, isn’t the ‘best’ thing for our economy that which promotes market efficiency? Of course there are limits to that theory as well, but it seems to me that promoting an efficient market would speak to the purpose of copyright law and patent law in encouraging innovation and creativity and fair use without limiting users to expanding services (especially in the case of BnetD where it was a nonprofit and there was no “stealing” of revenues from battle.net in my understanding) through the use of reverse engineering.

There needs to be a balance struck between the cost of investment for a company to innovate, and also their incentive to keep their product up to the satisfaction of their customers. I think it would be reasonable to assume that the market would balance itself out. If there are groups of people willing to reverse engineer products purely for the public good, I find it dubious that innovation in gaming would come to a standstill if the right to contract by EULA were found less important than copyright law allowing for fair use. So, while the reasoning of the case may have been valid in asserting that EULAs are allowed, I disagree with the ruling of the Eastern District of Missouri’s court and their ruling in the BnetD case.

I wanted to comment on what I see to be the key issue of Grokster, and what the standards applied by the 7th Circuit and the 9th Circuit disagree on: does absenting oneself of the ability to monitor and control infringing uses of a technology absolve one of the liability to do so? The cost of having any knowledge of infringing uses is the burden of having to monitor and control such uses. For P2P networks, the benefit of not having any of that information is being free of that burden. However, as the IEEE brief mentions, courts should not be rewarding technologists for avoiding that liability.

Eric proposes setting a bar for technologists to show good faith by demonstrating whatever marginal value there might be to a system in making a certain design decision and weighing it against its costs and benefits. For Grokster, he argues that the primary benefit of decentralizing the system and not requiring users to log on is greater efficiency. The cost of such a system is the ability to control and supervise infringing uses. He argues that the bar should be set relatively low, but it seems that a low bar would still not satisfy the complaints of the copyright owners, and would only pay lipservice to the true value added by a design decision. Frustratingly, it seems that standards are not satisfactory unless they are nebulous “balancing tests” that Sony-Betamax seems to endorse.

Let me propose a thought experiment. If it were true that the majority (better yet overwhelming majority) of traffic on P2P networks was pornographic material instead of music or less objectionable movies, would we consider this case any differently? Wouldn’t it be easy to imagine some sort of social outcry, requesting P2P networks to begin monitoring the uses of their system more closely? What if the widespread sharing of pornographic materials on P2P networks were driving a child pornography industry that was so widespread it would be difficult for law enforcement to track down the primary contributors without the help of the software developers? What if it weren’t a criminal situation (for example child porn) and it was an extremely objectionable civil situation? Wouldn’t we want to be able to cite some responsibility on the part of P2P networks to help solve the problem? If so, is there some sort of negative obligation on the part of P2P networks to encourage social responsibility to prevent such uses from arising? What if the issue was not, as some claim, threatening the business model of the recording industry, but was instead, concerns over societal morality? (It could be argued that stirring contempt for the law breeds concerns for public morality.) Would we want P2P networks to be able to devoid themselves of the ability to monitor the situation and thus be absolved of liability?

The intent of the P2P network might be for non-infringing uses, but where do the bounds lie for the repercussions of the actual uses? Does it lie in how objectionable we find the uses? Then liability isn’t a matter of one clear cut standard over another, it really is a balancing test of where the court determines the costs and benefits of a specific course of action for its jurisdiction.

** made a grammatical correction in the title- ‘weren’t’ vs ‘wasn’t’