Information Technology and the Law

In the discussion of what is to be done with filtering web content on public library computers, our discussion took an almost inevitable turn that has been characteristic of many similar discussions throughout the semester. There is an tendency when discussing laws or decision to try and hypothesize a law ideally suited to handle all possible scenarios. We discussed all the eventualities and what if’s trying to come up with some scheme of filtering and access controll which the law could dictate and which would effectively protect minors from harmful material. While the intent of such discussion is correctly aimed at protecting minors, it’s method is misguided. No law could ever account for every possibility in which a minor might be exposed to obscene material so to try and create such a law is futile. This sort of law that aims to prevent rather than punish doesn’t do anything to deter a certain action, only challanges people to try and sneak through its loopholes. A better solution to problems like library computer filtering are laws that punish those who expose minors to obscene material rather than laws that just try and prevent it.

The major complaint about library computer filtering is the limitation of adults free speech. So the easy fix is to allow adults unlimited access while still restricting it to minors. Arrive at the point where we decied it was ok to have unlimited access for adults but filtered access for minors, we then focused on how to phrase the law so that the two were never mixed. This is the type of preventative law that would never work. There are almost countless ways in which some obscene material could be viewed by a minor and simply trying to make those ways impossible would be ineffective in controlling them. A better solution can be found in laws that promote personal accountability. Rather then just try and prevent people from doing something through technical means, hold them accountable for whatever they do. Simply make it clear what is considered acceptable for a public library and then impose strict penalties for those that can’t play by the rules. We often seem to neglect the element of personal responsibilty in our discussions which leads to the formulation of hypothetical laws that don’t blame wrongdoers and instead blame someone or something else for not preventing the wrongful act. When there is nothing of personal value at stake, there is little motivation to try and adhere to the letter of the law. The hypotheticals we discussed in class were all examples of just such a case. If however we had coupled a huge fine with inappropriate use of library resources, say printing obscene materials to the printers where it could be found by minors, then it would be much less likely to ever develop into a problem. As basic as it may seem, punishment and fear of personal loss are what will motivate people to behave. This isn’t to say the law has to be overbaring or enforced with an iron fist, but it is essential that there are consequences and accountability built into any law which one could hope to be effective, a fact that, at least in our own little circle, seemed to get ignored all to often.

So what’s to be done with ICANN? It’s pretty clear that in it’s current state, it won’t last forever, so it will eventually have to take on another form or be replaced. I’ll admit that I’m among those that fear that whatever comes next could be worse, so I’m in no desparate hurry to show ICANN the door, but I’ll also admit that ICANN is far from perfect. The main issue with ICANN as it is today is the combination emmense power and unaccountability. It’s a situation where absolute power corrupts absolutely. ICANN doesn’t have any motivation to do anything well since nothing is really going to happen to them if they don’t. To remedy the whole situation it’s obvious that we have to remove one of the two elements which create it.

Removing ICANN’s power would mean splitting it’s job into numerous smaller entities that would be forced to compete. This would create a survival of the fittest atmosphere that is great for business and has all sorts of built in accountability to keep things in check, but isn’t the best idea for governing the internet. Dividing the body that governs the distribution of DNS names is frought with possible problems of overlap and multiple internets that user have to choose from. Making each country responsible for it’s own DNS space has promise since it allows each country to apply it’s own laws, but it has problems with current .COM DNS owners being unwilling to give theirs up. While splitting up ICANN would also help make the DNS governing more fair than it is now by allowing more people to have a hand in how things are decided, this is also a drain on speed of action. I think that with the fast paced changes inheirent to the internet a central DNS governing body is vital to the efficiency needed to keep pace.

If ICANN or it’s replacement is to remain as a single entity responsible for all of the web, than it will still have the same power ICANN does now and will need an added layer of accountability to make sure it’s run right and efficiently. There are alot of possible ways of imposing the necessary accountability. Making the whole operation and it’s inner workings much more public is one way. If the public can more easily scrutinize the organization than it’s more likely to change, especially if the positions within this new ICANN are elected. Perhaps the easiest way to do this fairly would be to just have the UN select a certain group of people which would in turn give the people some avenue by which they could influence who was in charge of ICANN, since a international general election is pretty unfeasible. I think this solution adds enough accountability to be effective, but not so much as to hinder progress and adds an element of fairness. I think with any solution for the ICANN situation fairness is a nice addition, but should be seconday to efficiency. I’m not about to advocate an entirely unfair system, quite the contrary I think it should be as fair as possible, but only to the point that it doesn’t unduely sacrifice ICANN’s ability to function. Changes to ICANN that include huge international contingents and world treaties are nice, and certainly the most fair, but would gridlock the whole system and are unreasonable. The key to a working and ICANN is keeping it small, decently international, and very public in it’s workings. These qualities could take many forms but are necessary for a working internet governing body.

Through the course of the year our discussions of the internet and the legal issue that have come to light as a result of it’s spread, it’s become more and more obvious that the internet seems to have a power of the will of men. There is something about it that drives, or inspires, or taunts people into doing things they might never have done outside the context of the web. The speed, ease, low cost, and anonyminity is what lures people to the web. Given a few examples I’ll demonstarte my point.

We’ll start with file sharing. I have enough faith in the common man to think that the vast majority of people will agree that stealing is wrong. This is evinced by the lack of a massive shoplifting problem all across the country. I also think that the majority would agree, that to at least some degree, sharing copyrighted music is essential wrong as well since it too constitues some type of stealing. However in the case of file sharing, there is a widespread issue, and though it’s not a majority of people sharing copyright files, there is a pretty large number, far larger than I would think there to be shoplifters. So what is it that makes people who would never consider shoplifting rationalize stealing music? It’s the lure of the internet. It’s cheap, fast, easy, and anonymous (to a point). People could easily share music if there were no internet, though it would require alittle more effort, a slightly higher cost and lower speed, but it could certainly be done via ripped CD’s and the postal service. But would never do such a thing, because it’s missing those key advantages the internet provides, even though it still would give them an avenue for getting free (practically) music.

Take internet dating as another example. People are willing to talk to a total stranger they know nothing about and try and forge a relationship. Think about this in terms of life outside the internet and it’s seems very odd. Very few people would be comfortable enough with them selves to call a random stranger on the phone and strike up a relationship. This is a case where the anonyminity of the internet has an effect on people, letting them feel like they can be whoever they want to be since the person on the other end has no idea outside of what they send them. The popularity of a game like the Sims that lets people take the role playing even further into an interactive 3d environment is poignant evidence of what I’m talking about. The internet has a profound effect on people, and regardless of what one wants to do with it, we should all be wary and conscious of how it might effect our thinking and judgement so that we don’t find ourselves morally corrupted by it’s flashy technology.

The internet is certainly an interesting place. Partly because I can refer to it as a place, and just about everyone will know what I’m getting at, even though it would be impossible to get in a car and drive to the Internet. This is of course a result of the lexicon which we use to describe cyberspace, which is typified by mostly geographical descriptions. The human conception of the internet is essentially one that confirms this sort of spatial description, at least for those unfamiliar with the underlying architechture. Even for someone who understands the acutal working of the net, it’s quite easy to fall into the trap of abstracting the concept of the internet into having some physical dimension in which we can move about. In order to make important distinctions regarding trespass, copryright and the like with regard to the internet we must separate the common notions about the internet from what it actually is.

There is no cyber “space”. People can’t actually visit a web page in the same sense that they can visit someones property. If the real world worked like the internet, than rather than visiting someone else’s house, you would simply ask to see it and an exact copy of their house would be built at your location. The idea of someone looking around in a copy of your house certainly takes away from the homey intimate feeling that Hardy talks about. I think that this notion people have about a web page being their own and that others sufring the net actually go to it is part of what makes trespass seem applicable. If things actually worked that way, then it would seem that trespass would make sense. The fact that webpages deal with copies though is a strong argument for handling web page legal issues within the confines of copyright law. This was something mentioned in the Hardy paper, and it was agreed upon in class that the content of webpages is copyrightable, however there wasn’t any serious discussion of forgetting about trespass entirely when it comes to webpages. Trespass is much more strict than copyright. It’s far to strict to be applied to something as open and semi-public/semi-private as the internet. Trespass law makes it legal for someone to shoot at people who are on their property, which in terms of the internet would be akin to destroying someones computer for viewing a webpage without permission. This would clearly be over the line for something as small as visiting a webpage. Copyright would be a much better fit. Copyright is a better solution than trespass since it allows for fair use, while protecting the interests of the copyright holder. Anyone who violated a person’s wishes about the use of their webpage could be subject to a copyright lawsuit, but the provisions of fair use would most likely protect the average user from being sued as a result of casual or accidental infringement. At the same time, it would give webmasters a legal avenue through which they could try to stop unwanted transactions with their webpage. It certainly wouldn’t have the same legal strenght as trespass, which is too strong, but would be a good starting place for future legislation, aimed directly at the issue.

There was much discussion today in class about what right companies have to pair their products exclusively with accessories or neccessary components of the same brand. Though this wasn’t the focus of the Lexmark case, and there was some question as to it’s relevance to the topic, we devled into it pretty deeply anyway. It seemed to be the consensus in the end that Lexmark was in the wrong for their attempted pairing since they had tried to convolute copyright law and the DMCA to protect a monopoly. Aside form the Lexmark case though it was noted that trying to maintain a monopoly is an acceptable business practice, that is untill a monopoly is actually achieved, at which point it is no longer fair to continue to pair products so that they force consumers hands.

It’s acceptable for small companies with limited market share to use monopolistic business models since there are other options available to consumers. Marketplace options are vital to maintaining a competivitve environment which fosters innovation and keeps prices in check. So long as small companies compete and market share remains divided then monopolistic practices are nothing to be concerned with. However once consumer options are limited by one company holding a vast majority of market share than it’s time to bring monopolistic practices to an end. The Microsoft anti-trust suit serves as a perfect example of when it was time to stop. Microsoft commanded such an overwhelming market share that if they were to set up there software so that it was only interoprable with other Microsoft software, consumers would be left with no other viable options. This got me to thinking about textbooks, and the professors who write them.

When professors make their own text books required reading, they are setting up a monopoly even more dominating than Microsoft’s. While it certainly doesn’t have the same scope in terms of number of people affected, it does command control of the entire market share, something even Microsoft can’t claim. There’s no Linux-esque option in this text book example as required reading is just as the name implies. The only options that exist to students are to either not buy the text, which is surely going to hurt their performance in class, or possibly find it on reserve. Both are highly unfeasible if someone is serious about doing well, which leaves them stuck buying the book. This isn’t to say that professors using their own books is always a bad deal. It is often the case that a professor is unhappy with all the other options available so he writes his own. In this case it is certainly better to have a well written book than to avoid a monopoly. Where it becomes a bit devious is when professors are very keen on publishing new editions yearly, just in time to make the used copies obsolete. I think if a professor feels that a book needs to be updated yearly, limiting the supply of cheaper, used editions, than they should think to supply their texts for free to their students. Since students are already paying to attend the class, and there shouldn’t be any sort of copyright issues since the professors owns the copy right, this would seem like a very feasible option. While this is something that will not likely see the inside of a court room, I thought it was worth mentioning.

After a short search on the net I managed to find a website with a EULA so ridiculous that I can’t even mention the site here for fear that they might come after me. One of the conditions of this particular EULA requires that parties responsible for increased traffic flow to the site are finacially responsible for the new traffic they create. As unreasonable as this might sound, there were some other sections of the agreement that were even more far fetched. One required that damages of five million dollars be paid for any type of copyright infringment that violated said EULA. Another section set the price of a telelphone call to the site’s proprietor at $250 a call. After reading all that I could stand, I couldn’t help but think that there must be a better way. Depsite the outrageous nature of this particular EULA, its still had many of the same core conditions that are found in many others. It seems that the majority of EULAs that we encounter are mostly the same message, and this is probably a large part of why many people just skip over them. It seems that if you’ve read one then you’ve read them all. The fact that they seem to be growing in length as software makers try harder and harder to cover all the bases also defeats consumers motivation to read them. Establishing a industry standard EULA would solve both of these issues.

With an industry standard, all the various EULAs that are 99% the same could be replaced with a simple message that informs consumers that the software conforms to the known standard. This would mean that consumers would only have to be familiar with the standard and would no longer have to read the same pages of boring legal jargon everytime they installed some new software. If a company wished to include something in addition to the standard than they could easily do so. With 99% of the EULA consolidated into a simple statement of conformity, then any extra conditions would be easily identified. Condensed EULAs also make it harder for malicous software developers to hide conditions of ill will in the fine print on the thirtieth page of the EULA. While it would still be possible to make an exceptionally long EULA for just such a purpose, if a standard was available, then the presence of such a long winded EULA would flag the possibility of harmful conditions.

Creating a standard EULA would be good for developers as well as users. It simplifies the process for both sides, and only causes real problems for people trying to take advantage of the EULA. Consumers would have a better understanding of what they were getting into with their purchaes and developers would have more confidence that their customers were better versed in the conditions that came with their product.

The issue of file sharing is one that I believe is too complex for the courts to handle on their own. Their best decision in the matter would be to hand it to Congress for a legislative solution rather than a judicial one. File sharing raises issues that if not decided upon carefully could set precedents that reach far beyond the confines of the music indusrtry and P2P. The potential harm of such precedents puts the court in a dangerous position. It’s the courts duty to uphold and interperet the law but in this case I think it would be better to seek new laws rather than try and confrom old ones to a new problem. If the court were to hand down a decision in favor of either party in this case, the precdent set would have potentially devestating effects.

If the court were to decide in favor of the plantiffs, thus shuting down Grokster and probably outlawing P2P, the effect on the technological inovation would be catasrophic. As noted in the CS professors breif, this would create an environment that necessitated that all new technologies are safe guarded against possible infringing uses. This would effect both the cost, and development time hurting both, and resulting in products that are watered down and which lack functionality for the sake of safety from lawsuits. The fear of legal action against new technologies would stunt investment and slow the advance of technology to a crawl. There is also the issue of what this does to the Betamax precedent. To rule against Grokster would require at least a clarification of Betamax and would create a grey area between Betamax which is legal, and Grokster which is not in which CD burners, iPods, and Tivo would lie. Without the protection of Betamax these grey technologies could potentially all be brought to court for their infringing uses, which would continually redraw the line for legality in recording equipment. This would be an economic nightmare that I don’t think the court is eager to bring about. So what happens if they instead decide for Grokster?

A decision in Groksters favor could have equally damaging effects. Since it is hardly disputable that illegal infringment does occur via the Grokster software, ruling it legal because of it’s non infringing qualities would say that it’s ok to break the law as long as you’re inovative. The Sony Betamax may have been similar in that it was found to be ok by the court under the substantial noninfringing use test, but in the case of Betamax the main use (time shifting) was noninfringing which isn’t the case for Grokster for which the vast majority of it’s use is for illegal purposes. Because Grokster is so widely used to violate copyright it’s validation by the court would set the limit for allowable illegal activity in inovative products at much too high a level. This would certainly be abused by future technologies, desiged for purposefully illegal activities but innovative so that they are immune to liability. This too is a situation that the court would probably like to avoid. So what are they to do?

The best solution to the situation is a compromise that protects copyright owners rights as well as fosters an environment hospitable to innovation. This type of solution would be easiest to get from Congress where laws could be tailored to the issues that file sharing poses rather than in the courts where existing laws would have to be contorted and shaped to make sense in the context of a technology they may never have forseen. The court tried to hand Betamax to congress but nothing ever happened in Congress about it. I think that this is the right course of action here too, but the court should be careful to insure that Congress is more interested in dealing with it than they were for Betamax.