Digital Law, Regulation, Copyright

1. Indecency & Obscenity
2. Libel
3. Privacy
4. Copyright
5. Trademark
6. Advertising

1. Indecency & Obscenity
   • Indecency is different from obscenity
   • In the U.S., true obscenity is illegal in any medium--including the 'Net
   • U.S. obscenity definition (Miller v. California, a 1973 Supreme Court case) is three part:
     1. The average person, using contemporary community standards, judges that the work as a whole appeals to the "prurient" (that is, "having a tendency to incite lustful thoughts ") interest; and
     2. The work depicts or describes sexual conduct prohibited in an applicable state law; and
     3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
   • 'Net does raise one new obscenity issue:
     • How is jurisdiction for obscenity decided?
     • Obscenity is determined by "community standards," but what about a sexually oriented Web site in San Francisco that is viewed by someone in Opp, Alabama?
     • The court can use the community standards of either Frisco or Opp.
• In contrast, indecency is prohibited in mass media (esp. radio and TV); but is protected as part of freedom of speech in magazines and books.
  • Broadcasting's ban on indecency established in FCC v. Pacifica in 1978 (full text online)
    • George Carlin's "Filthy Words" broadcast on a NY radio station (2:00 p.m. Tuesday, October 30, 1973)
      • A verbatim transcript of "Filthy Words" is online, included in the Supreme Court's opinion.
      • Illustrates continuing difference between broadcasting and the Internet.
    • Supreme Court sides with FCC and allows the regulation of broadcast speech
  • Communication Decency Act (signed into law Feb 8, 1996)
    • Attempted to legislate indecency on the Internet.
    • Defined indecency as:
      • "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." (1)
    • Challenged by the ACLU in ACLU vs. Reno (Justice Dept.)
    • Struck down due to vagueness (full text online)
      • That it would suppress adult speech in violation of the 1st Amendment
      • "Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects." (final ruling, June 12, 1996)
• Libraries and schools have become a new battleground
  • "Children's Internet Protection Act"
    • Separate versions in House and Senate: HR 896 by Rep. Bob Franks (R-NJ) and S 97 by Senator John McCain (R-AZ).
    • Both bills would require public elementary and secondary schools to install filtering software.
      • HR 896 would also force public libraries to install blocking software on one or more computer terminals with Internet access.
  • Filtering automatically blocks sites that use sensitive/indecent words.
    • E.g., CyberSitter, NetNanny, SurfWatch, The Internet Filter, and CyberPatrol
      
    • The problem? They also block valuable materials on medical and religious sites.
      • E.g., CyberPatrol blocks: (3)
        • Creature's Comfort Pet Care Service
        • The U.S. Army Corps of Engineers Construction Engineering Research Laboratories
        • Dept of Computer Science (http://www.cs.arizona.edu) at the University of Arizona (as containing FullNude SexActs!)
• Protecting minors from indecency and pedophiles
  • Also an ongoing issue
  • S. 1482 Child Online Protection Act (COPA), a bill to restrict minors' access to certain online materials (Sen. Dan Coats, R-IN), passed into law in 1998.
    • Would punish "commercial online distributors" of material deemed "harmful to minors" with up to six months in prison and up to $50,000 in fines.
      • Requires US commercial Web-site operators to keep children under 18 away from material deemed harmful to minors by employing credit-card registration or age-verification systems.
      • But, argue ACLU, EFF and others, "The government may not mandate the application of a legal standard to the Internet -- whether it be 'indecency' or speech that is 'harmful to minors' -- that requires speakers to distinguish between adults and minors when such a distinction cannot be made."
    • Federal district court in February 1999 ruled that COPA violated the First Amendment's guarantee of free speech and blocked Justice Department prosecutors from enforcing it.
      • Currently (July 1999) still in the court system.(9)
  • Being called "CDA II" by some
2. Libel
   • Is the republication of libel also libelous?
     • E.g., Cubby Inc. vs. CompuServe Information Service (summary online)
       • Cubby defamed on CIS
       • Court rules: CIS not responsible
         • CIS is like a library, newsstand or book store
     • E.g., Stratton Oakmont vs. Prodigy
       • Court rules: Prodigy is responsible, since it controls much of its content
       • CDA, ironically, would have protected Prodigy
3. Privacy
• Definition:
  • "Privacy is the power to control what other people know about you."
  • Better definition - it is the power to control the truths about you that other people know.
  • Falsehoods are controlled through the law of defamation and libel; privacy is concerned with your ability to hide the truth.
• Two kinds of truths that the law might try to protect:
1. Informational privacy: Truths about you that have revealed to the public, either by giving some information over to someone else, or by being observed in public; or
• E.g., purchased a pregnancy test at a pharmacy, by openly using my credit card when buying it; but I might still want to control how easily others have access to that information.
2. Truths about you that you have kept private." (3)
• Electronic Communication Privacy Act of 1986 (ECPA) (full text online)
• Protects personal information
• "ECPA makes it illegal . . . for an individual or the government to intercept or disclose private electronic communications." (2)
  • "Interception"
    • Real-time interception
    • E.g., a tap on a computer line, monitoring every thing that is passed across the network; a program that monitors every keystroke typed on a keyboard.
  • "Disclose"
    • Passing the contents of the message on to someone other than the one intended to receive the message.
    • E.g., passing the information on in an email, or publishing it in a newspaper.
• Significant exceptions to this protection
  1. If you are doing harm and there is reason to believe you are doing the harm, or if the system provider is protecting against harm, then you don't have a right not to have your message intercepted.
     • E.g., Bank Secrecy Act requires banks to report their customers as "suspects" to the Financial Crimes Enforcement Network (FinCEN) whenever the banker has "reason to suspect" that a large transaction is unusual for the customer and the "bank knows of no reasonable explanation for the transaction."(11)
       • FinCEN, which boasts the largest computerized financial database in the world, reportedly received almost 100,000 of these "Suspicious Activity Reports" from banks in 1998 alone.
  2. If you have agreed to have your message intercepted, whether explicitly (through the agreement you have with your provider), or implicitly (by posting to a public bulletin board, or because of an employment relationship), then you don't have a right not to have your message intercepted.
The "Cookie" Controversy
• Are Webmasters spying on you?
• Cookies contain information you've volunteered to a Website.
• Stored on your computer and retrieved by that particular Website.
  • E.g., last I checked, I had 380 cookies (individual text files) on my home machine.
    • E.g., www.insideneworleans.com
      • Apache
        63.10.79.233.19066.951057245.457
        www.insideneworleans.com/
        0
        1545055360
        29362465
        323443520
        9326255
  • Usually only the particular Website can access that cookie.
    • But DoubleClick changed this
      
    • Tracks Web use across many sites, using the same cookie and a Globally Unique Identifier (GUID)
      • On my home computer: jbutler@doubleclick[2].txt
      • This GUID is not, currently, linked to your real world identity, but DoubleClick tried to do that in fall 1999--combining its records of people's Web-surfing habits with Abacus Direct's consumer database (names, addresses and other personal information). (18)
        • Resulting in several civil lawsuits against it.
    • Its privacy policy.
• Children's Online Privacy Protection Act (COPPA)
  • Became effective April 21, 2000.
  • According to Electronic Frontier Fondation's summary:
    1. "Post their privacy policy;
    2. get parental consent;
    3. get new consent when information practices change in a material way;
    4. allow parents to review personal information collected from their children;
    5. and allow parents to revoke their consent, and delete information collected from their children at the parent's request." (15)
• Video Privacy Protection Act of 1988
  • A crime to release individualized data about the videos any individual may rent or buy.
  • Because of the outrage over the publication of Judge Robert Bork's video rentals when he was nominated for a seat on the Supreme Court
• How to protect your privacy online
  • Use Mail Expire or nobody@127.0.0.1 when registering.
    • Mail Expire offers auto-expiring email alias.
    • 127.0.0.1 is local machine.
  • See PC World's Privacy Special Report: Stealth Surfing for details.
• Developing legal situation (May 2000)
  • Federal Trade Commission Study finds only 20% of 'Net companies had "adequate standards" for protecting privacy.
  • New federal laws being considered to bolster privacy. (19)
4. Copyright
• Digital Millennium Copyright Act.
  • Updates intellectual property law for the digital age.
  • Signed into law by President Clinton on October 28, 1998.
  • Full text of the Digital Millennium Copyright Act
• Copyrighted image and music material on Websites.
  • Some is permitted under the notion of "fair use"
  1. Is your use noncommercial?
  2. Is your use for purposes of criticism, comment, parody, news reporting, teaching, scholarship, or research?
  3. Is the original work mostly fact (as opposed to mostly fiction or opinion)?
  4. Has the original work been published (as opposed to sent out only to one or a few people)?
  5. Are you copying only a small part of the original work?
  6. Are you copying only a relatively insignificant part of the original work (as opposed to the most important part)?
  7. Are you adding a lot new to the work (as opposed to just quoting parts of the original)?
  8. Does your conduct leave unaffected any profits that the copyright owner can make (as opposed to displacing some potential sales OR potential licenses of reprint rights)?
  • Motion Picture Association of America (MPAA--Jack Valenti) and Recording Industry Association of America (RIAA) cracking down
    • In addition to individual copyright holders
      • E.g., Disney, Playboy
• MP3 furor(12)
  • MPEG-1, Layer 3 codec (compression/decompression algorithm)
    • The latest technology to facilitate easy copying and distribution of music.
    • Difference: almost CD-quality music in reasonably small files (one MB is equal to one minute)
    • E.g., "Butler Barrel Polka"
  • RIAA detests it.(13)
    • "The Internet culture of unlicensed use means that theft of intellectual property is rampant, and the music business and its artists are the biggest victims. Unauthorized Internet music archive sites using compression technology such as MP3 provide illegal sound recordings online to anyone with a personal computer. They can be downloaded and played indefinitely, without authorization of or compensation to the artists."
    • RIAA represents music publishers more than artists.
    • Sued MP3.com on January 21, 2000:
      • RIAA "seeks relief against an ongoing infringement of the copyrights in the sound recordings on some 45,000 audio CDs, most of which copyrights are owned by the plaintiff recording companies." (16)
      • Specifically: Instant Listening and Beam-it--parts of MyMP3.com (20)
        • Instant Listening
          • When a user buys a CD from an online retailer partnered with MP3.com, that user can choose to have the album immediately put into his or her MP3.com "locker" for immediate listening.
        • Beam-it
          • When a user puts a copy of a CD into his or her CD-ROM drive, MP3.com will put that album into that user's MP3.com locker.
          • Users are not actually copying their CDs into their MP3.com lockers. Instead, MP3.com is giving those users access to a digital music library of over 45,000 albums that MP3.com had previously created.
      • On April 28, 2000, a federal judge ruled MP3.com had violated copyright law.
  • Napster is latest target.
    • Software that allows sharing of MP3 files among its users.
    • Won Webby award for Best Music site (May 2000).
    • Sued by RIAA, Metallica and Dr. Dre (May 2000)--based on the Digital Millennium Copyright Act.
      • 317,377 Napster user names alleged to be infringing Metallica's copyrights.
        • "Metallica has requested that, in compliance with the notice and takedown policies outlined in the DMCA, Napster act expeditiously to disable all of these users." (22)
      • Irony: Metallica encourages bootleg tape trading among its fans.
      • 'Net ridicule of Metallica
        • E.g., Metallicasucks.com and auction of "Metallica's integrity" on eBay.
    • Currently (as of May 8, 2000), case is in court.
• EFF's Campaign for Audio Visual Free Expression (CAFE) opposes RIAA.
  
• Are ISPs liable?
• Church of Scientology alleging copyright infringement against NETCOM (1995)
  • For posting of secret Church documents
  • Netcom cleared as it had no knowledge of what a user had posted through it.
• Copyright FAQ
5. Trademark
• Definition (4)
  1. It must be in actual *use* as an identifier of particular goods or services: you can't get a trademark in some great new name you've come up with for your new product until you actually start using that name to identify that product.
  2. It has to be in some way distinctive, not what courts call "ordinary" or "merely descriptive" or "generic": you can't use trademark to protect the common name of your product -- say, the name "Modems" for the modems you are selling (because that is a generic term) nor the phrase "Tasty donuts" (which merely describes the donuts).
  3. Finally, the mark must not be "confusingly similar" to anyone else's trademark that is already in use.
• DNS Theft
  • Court sides with trademark holder
  • E.g., Candyland.com porn site
• Trademark often becomes a question of who has the most aggressive lawyers.
  • E.g., "World Cinema Review" at www.tcf.ua.edu
    • "World cinema" seems like an "ordinary," "generic" term, right?
    • However, Bravo cable channel has a film series it's trademarked as "World Cinema."
    • Its lawyers contacted the University of Alabama and demanded WCR cease and desist its trademark infringement.
      • Threatened "an injunction, damages, attorneys' fees and costs and other penalties and fees."
    • So, of course, WCR and UA caved in and changed the name.
6. Advertising/SPAM issue
• CIS and others attack SPAM king, Sanford Wallace (CyberPromotions)
• Eventually drove him out of business

Bibliography

1. Mark P. White, Sex in Cyberspace: A Legal View.
2. Electronic Frontier Foundation. Especially its materials on the CDA.
3. Copyright Guidelines, Resources and Interpretations, University of Virginia.
4. Cyberspace Law for Non-Lawyers (1996).
5. The Censorware Project (watchdog for filtering software). Esp. listing of CyberPatrol's blocked sites.
6. Yahoo! listing of filtering software.
7. Yahoo! information on Communications Decency Act.
8. The FCC perspective on the CDA, with its full text
9. Declan McCullagh, "GOP: Save the Net Smut Law," Wired News, July 19, 1999.
10. ACLU, "Congress Tries to Force the Use of Clumsy Filtering Software," February 18, 1999.
11. ACLU, "Fight for Financial Privacy!," April 20, 1999.
12. mp3.com FAQ
13. RIAA, "Online Piracy"
14. UCLA Online Institute for Cyberspace Law and Policy, "The Digital Millennium Copyright Act," October 5, 1999.
15. Electronic Frontier Fondation, "Frequently Asked Questions (and Answers)About the Children's Online Privacy Protection Act (COPPA)," April 20, 2000.
16. Text of the RIAA lawsuit filed against MP3.com, January 21, 2000.
17. Matt Lake, "Privacy Special Report: Stealth Surfing," PC World, June 2000.
18. Nick Wingfield, "DoubleClick Reviewing Its Privacy Practices," Wall Street Journal Interactive Edition, May 17, 2000.
19. Stephen Labaton, "U.S. Is Said to Seek New Law to Bolster Internet Privacy," New York Times, May 19, 2000.
20. RIAA, "FAQ About RIAA's Lawsuit Against MP3.com."
21. RIAA, "FAQ About RIAA’s Lawsuit Against Napster."
22. Napster, "Information About Metallica's Request To Disable Napster Users."