Information Technology and the Law

In reading U.S. v. Thomas, I found some similarities to the first subject covered in the first topic of this class, jurisdiction in internet cases. Some of the discussion generated was whether someone who posts something on their website (Drudge case) that is accessible to anyone, can be held liable in any state or location through which the information passes or is viewed. We also talked about a case in which jurisdiction was found in a state that was neither destination nor source, but the location of AOL servers, through which email had passed. As I recall, there was quite a bit of discussion as to whether the sender of the email should be held liable for damages in any jurisdiction through which the email passes. It seems to me that it would place an undue burden on the administrator of such a site or the sender of such an email to research and obtain knowledge of the laws of every possible venue through which their information passes. For this reason, I find part of the decision in the Thomas case troubling. We can ask the same sort of question we have discussed in class before, should the Thomases be required to have knowledge of the laws and community standards of every state in the United States? It seems to me that the person who should know about the community standards is the person who requests such material and causes it to enter the place where the particular community standards are upheld. While it is true that the AABBS owners required registration and verification and that they had control over who gained access to the site or not, it seems unpractical for them to have to have knowledge of the standards of every community from which the users originated.

This decision creates problems, especially now that the internet has advanced so much since 1996, because it means that a business such as the AABBS can be brought to trial under the standards of the most conservative community simply because the digital information was routed through that community. The effect of a decision like this is very likely to have a negative effect on the speech of internet users because now the courts would be able to hold them accountable under the standards of the most conservative community. Businesses and users of the internet all over the world would be forced into abiding by the standards of this one such community. They might be more reluctant to post articles, sell items or services, or engage in any kind of communication on the internet for fear of prosecution and a huge fine or jail time. I think the decision in U.S. v. Thomas creates a dangerous precedent for later cases and has a very detrimental effect on the rights of free speech.

The question that comes up in reading about ICANN’s beginnings and the debate over governing the internet is whether or not the internet needs some sort of governance. For most people, governance is a scary word, one that connotes rigid control by some authority and this is probably why a lot of people are vehemently opposed to internet governance. I believe that in certain situations and aspects relating to the internet, governance may be a good thing, but for the most part, governance is not needed and should not be incorporated. The internet evolved into what it is today without a governing body. ICANN may be viewed as a governing body, but it seems that they do not act like one. I don’t disagree with the idea of ICANN, but the way they go about their business and the “governance” they provide leave something to be desired. ICANN seems to be straddling the fence between being a public governmental body and a private corporate body where the public doesn’t really have a say.

For ICANN to continue successfully, or at least effectively, I think it needs to separate the technical aspects from the policymaking aspects. One technical aspect that ICANN should continue to perform is the allocations of IP address space and coordinating “technical parameters to maintain universal connectivity to the internet”. ISP’s need correct and valid IP addresses to keep information flowing through the internet. This technical part of ICANN’s policies helps to keep the internet connected and centralizing the control over IP addresses helps in regulation. On the other hand, ICANN’s control over the DNS does not seem to be a major factor in maintaining the connectivity of the internet. Just as there are many registry sites on which a person can register a domain name, there could plausibly be many Domain Name Systems providing they are consistent with each other.

One detail that is becoming more and more relevant in considering internet governance is the fact that the internet is becoming more commercialized. Many people now rely on the internet to make a living. As was said in the Debate article, these people want some kind of government involvement to protect their rights. I agree that in some respect, government involvement is needed to regulate commerce on the internet. But it should be a minimal involvement, something that gives guidance and helps everyone to be on the same page, but not overburdening to the point that it impairs the advancement of technology. Thus, governance of the internet can provide management in some parts of the internet, but other parts are best left to the public and the open market.

In Register.com v. Verio, the court enjoined Verio from obtaining information from a publicly accessible database containing contact information about users who have registered domain names with Register.com. While I agree that Verio’s use of this information was misleading at times and presented in such a manner as to suggest corroboration from Register.com, I do not agree with the court’s finding that Verio had breached it’s supposed contract with Register.com. The thing that troubles me is the contract, or Register.com’s terms of use agreement. As stated in the court document, in order to qualify as an accredited domain name registrar, Register.com had to enter into a registrar Accreditation Agreement with ICANN in which they agree to make public, in a WHOIS database, the names and contact information of users who register domain names. In the section of the agreement quoted in this court document, it is clear that Register.com is to allow the data contained in the database to be used in any legal way except spam and “high volume, automated, electronic processes that apply to Registrar (or its systems).” There is another sentence in this section which prohibits Register.com from imposing “terms and conditions on use of the data provided except as permitted by ICANN-adopted policy.” Yet in their terms of use, Registrar.com extends the ICANN agreement to also prohibit anyone from using the information for commercial advertising by direct mail and telephone, which are legal. It seems to me that this addition is in violation of the previously quoted clause in the original agreement. As further proof of this, we should look closely at footnote three in the text. When the suit was filed, ICANN was asked to file an amicus brief with the court on their position. Quoting from the brief, footnote three says,

“To the extent that Register.com is using this legend to restrict otherwise lawful use of the data for mass unsolicited, commercial advertising or solicitation by direct mail or telephone (and not just by electronic mail), it is ICANN’s petition that Registrar.com (sic) has failed to comply with the promise it made in Section II.F.5 of the Registrar Accreditation Agreement.”

Even the makers of the agreement see Registrar.com’s terms of use as violating the original agreement, yet the court seems to throw this whole argument out because of a no third-party beneficiary clause in the original agreement. Although I agree with the injunction in this case because of the misleading commercial marketing of Verio, I do think that the court should have taken into account how Registrar.com’s terms of use violated their original agreement with ICANN and how this original agreement did not prohibit commercial advertising by direct mail or telephone.

In thinking about websites and how they are viewed today, it seems logical to me that they should be considered as real property as opposed to chattels when applying trespass laws, but to think of trespass to real property as “unauthorized use”. The way society views websites and the terminology we use in referring to and talking about websites suggest that we think of them as real property. Terms such as “homepage”, “site”, “visit” and others give us a feeling of real property and websites should be protected as such. It is clear that when creating a website, the intention of the user is to create the website so that other people can visit it. I believe that some websites are created to be open to the public, not unlike parks or public libraries. They are meant for everyone to use and benefit from. But there are other websites which are created to serve a particular purpose for a private party and the owner should be able to control who visits the site.

In the cases we have read, it seems that the courts are applying trespass to chattels in a way, but not fully. I agree with both the eBay v. Bidder’s Edge and CompuServe v Cyber Promotions decisions, but for different reason’s. I believe that the court could have ruled the same way if they had applied trespass to real property instead of trespass to chattels. In CompuServe v Cyber Promotions, it was determined that Sanford Wallace’s spam had caused sufficient damage to warrant trespass to chattels. The question then is, what if Wallace had sent only a small amount of spam? Not enough to overburden the server and computers, but enough that customers complained. Would the court then find that no trespass had occurred? This sort of thing happened in a similar case, Intel Corp. v. Kourosh Kenneth Hamidi. Two lower courts ruled in the same manner as CompuServe, even though only six emails were sent out over a period of 21 months. The California Supreme Court reversed these decisions, saying that the “damage” caused was not sufficient enough to apply trespass of chattels. If we apply trespass to real property in both these cases, CompuServe and Intel would still be able to pursue legal action because Hamidi’s and Wallace’s use constituted unauthorized use.

In the eBay case, the court granted a preliminary injunction against Bidder’s Edge because it was found the eBay was likely to prevail on trespass to chattels. While I agree with the overall injunction, I do not agree that eBay would have prevailed on trespass to chattels because the use represented by Bidder’s Edge did not constitute a significant enough portion of eBay’s traffic to cause harm. I do believe however that eBay should be able to purse legal action pertaining to trespass to real property because of Bidder’s Edge’s unauthorized use. I believe that the owner of a website should be able to control who visits his website, just as the landowner is able to control who comes onto his land. Trespass to real property can be applied to websites as well as the servers and computers which are used to run and maintain the site.

Even though we have moved on from P2P software and RIAA lawsuit discussion in class and posts, I wanted to make some comments regarding these topics after reading the article in today’s Prince about another round of impending lawsuits against Princeton students. A good number of students in class (including myself) were convinced that if the RIAA continued to pursue individuals in their lawsuits, that it would do no good because people would continue to find ways around getting caught and/or develop better technologies which would allow them to share files without drawing the attention of the RIAA. It seemed as though even the recording industry was convinced that going after individual users was the wrong idea, as we have seen numerous cases in which the creators of the software were sued. In the law and economics professor’s brief in the current Grokster case, they reasoned that suing the creators and maintainers of the software would make sense if (among other conditions) direct enforcement were impractical. To me it seems that in past cases ( i.e. Napster and Aimster) the courts have adopted this reasoning. As Judge Posner in the Aimster case puts it,

“Recognizing the impracticality or futility of a copyright owner’s suing a multitude of individual infringers (“chasing individual consumers I time consuming and is a teaspoon solution to an ocean problem,’ Randal C. Picker, “Copyright as Entry Policy: The Case of Digital Distribution, “ 47 Antitrust Bull. 423, 442 (2002)), the law allows a copyright holder to sue a contributor to the infringement instead, in effect as an aider and abettor.”

So the law allows the recording industry to go after the software creators because suing individuals is impractical and futile. Notwithstanding this, the RIAA has filed thousands of lawsuits against individuals. Does it seem to be working? Is it effective? In the Prince article we read that the operators of another P2P network, DC++, have elected to shut down the Princeton DC++ network for the time being in light of the impending lawsuits. Does this not fulfill the recording industry’s purpose? It seems that the recording industry is getting smarter and figuring out ways in which to pursue individuals who think they are not in danger of a lawsuit. In surfing the internet today looking for information, stories, and feelings towards i2hub, it seems that a lot of people felt like this was a way around the RIAA. It was supposed to be a private network of enabled colleges and universities to which the RIAA would not have access and could not prosecute individuals. As exhibited by the article in today’s Prince, it seems that the RIAA has somehow infiltrated this private network and will bring lawsuits against individuals that are sharing copyrighted material. It would also seem that going after individuals may in fact be worth it to the recording industry. But if this is the case then the courts need to view this as a viable option and not as an impractical or futile method to pursue damages.

In talking about the Sony v. Connectix case in class yesterday, it seemed that the majority of the class agreed that emulators running on PC’s are not a big threat to the current video game industry. With older systems such as the Nintendo, Super NES, and Gameboy, emulators pose a threat because both emulators and games can be downloaded, eliminating the need to buy separate consoles and games. When game consoles advanced and games became available on CD’s, users had to buy the physical CD in order to play the game on the emulator, as was the case with the Connectix emulator of the PlayStation. One would think that this would benefit Sony in a way because a new platform is created that allows users to play PlayStation games in places where a PS and TV are not available, thus creating more demand for PS games, but on the other hand it could also reduce demand for PS consoles. In Joel’s post yesterday, he explains why the new generation of game consoles is unfit to be emulated on a PC. I agree that because game consoles such as PS2 and Xbox are so advanced and dedicated almost solely to game playing, emulation on a PC is no match, and because of this, gamers are more likely to prefer the actual game consoles. So we’ve determined that even though Connectix’s reverse engineering of the PS was found to be protected as fair use, emulators of advancing gaming technology on PC’s pose no threat to the market.

What about an emulator that runs on a game consol? What if Microsoft came out with a version of the Xbox which could also play PlayStation2 games? Would the same rule that we saw in the Connectix case hold? . Normatively it seems that this would not be at all possible. Xbox and PlayStation2 are rival consoles, how could one console that is able to run both types of games legal? A situation like this would most likely make the PS2 obsolete; people could buy just one console to play both types of games. It seems to be a case very similar to the Connectix case. Microsoft engineers would have to reverse engineer the PlayStation2 in order to get at the ideas that make the console work. Through this reverse engineering, engineers would make intermediate copies of Sony’s code. The judges in the Connectix case determined that the Virtual Game Station was transformative because it was a new product and provided an alternative platform and new environment in and on which to play PS games. Could this reasoning not be applied to an Xbox that allowed users to also play PS2 games? The Xbox is similar to the PS2, but is in itself a wholly new product and allows a user to play PS2 games where a PS2 is not available. I do not think the courts would rule in the same manner if this theoretical situation arose.

In this week’s reading of the Computer Science Professors Brief, I thought they did a good job countering the Petitioner’s Brief and providing support for P2P technology. One thing this brief did that was possibly lacking in the Respondent’s Brief was the use of concrete and well-known examples outside of the music world. The Respondent’s Brief did well in mentioning bands like Phish, Dave Matthews Band, John Mayer, and Grateful Dead, among others, who were in favor of mp2 file sharing. This was probably done because music represents the biggest percentage of files shared using P2P software. This also let the Court know that it wasn’t only the small up-and-coming bands that supported P2P file sharing. In the Professor’s Brief, however, they go outside of the music world and point out that P2P software can be used to legally distribute software (Red Hat), and movies (Peter Jackson, tsunami videos), and also provide basis for research (IRIS project). This drives home the point that P2P technology can be beneficial to current and future generations. Bringing up big names like this and the issue of technological research will make the Court consider carefully their decision.

Obviously, because they are professors of computer science, this brief takes on a more technological tone. While the law and economics professor’s brief gave a lot of theoretical tests and alternatives, the CS professor’s brief gives us a more practical and applicable viewpoint. The law and economics professors suggest modifications or alternatives to existing software, but do not take into account how that would affect the advancement of technology. The alternative technology might be cheaper, but what if it is less efficient or inferior to other similar technology? Should developers stop trying to advance technology because there is a cheaper way to do something? I think that this idea would set a dangerous precedent for the future.

One thing that is not mentioned by the CS professors nor anyone else, but should be considered in advancing technology is the idea that if the recording industry goes on to win this case and P2P developers are required to use some sort of filter or other security device, wouldn’t this give incentives to create better filtering and/or security technology? Clearly this is nowhere near as big an issue as impeding future innovators for fear of litigation, but it is something to consider. Certainly security and filtering technology would quickly improve if future P2P developers were required by law to implement such technologies in their software.