From: Mustafa Akgul (akgul@Bilkent.EDU.TR)
Date: Tue 31 Jul 2007 - 19:20:15 EEST
The Internet and the Law: Work in Progress
http://ecommercetimes.com/story/58502.html
By Andrew K. Burger
E-Commerce Times
07/26/07 4:00 AM PT
So far, courtrooms have seen legal topics related the Internet
covering freedom of speech, fraud, censorship, intellectual property,
privacy rights, telecommunications, copyright and commercial law. It
seems technological innovation will provide more than enough to keep
Congress, the executive branch, attorneys, judges and others involved
in legal work busy until at least the next generation.
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New laws and regulations inevitably follow massive and profound
technological changes as societies come to grips with how new
technologies may be used.
Given the extent of changes the Internet has fostered across nearly
every aspect of modern life, it comes as no surprise that innovations
dealing with Internet-related technologies are proving very fertile
ground for innovation in the form of new laws, regulations, legal
precedents and interpretations of existing law.
So far, courtrooms have seen legal topics related to the Internet
covering freedom of speech, national security, terrorism, fraud,
censorship, intellectual property, patent law, privacy rights,
telecommunications, copyright, contract and commercial law. It seems
technological innovation will provide more than enough to keep
Congress, the executive branch, attorneys, judges and the wide range
of others involved in legal work busy until at least the next
generation.
Copyright Infringement Dominates
Whether it's bringing Internet service providers (ISPs), P2P
(peer-to-peer) services or individuals to court, the music and film
industries are perhaps the leading sources of legal actions dealing
with the Internet, much of it related to copyright infringement.
One of the most recent high-profile cases is the music industry's
effort through the Library of Congress's Copyright Royalty Board (CRB)
and its nonprofit agent SoundExchange to raise royalty rates to a
point that independent webcasters say threatens the viability of
Internet radio as we know it.
Urgent public and congressional appeals by independent webcasters
brought a temporary, last-minute reprieve earlier this month when U.S.
Rep. Edward D. Markey, D-Mass., brought the two sides to the
bargaining table in front of the House Committee on Energy and
Commerce. This set the stage for a deal in which SoundExchange agreed
not to enforce the new rate structure.
Instead, SoundExchange is proposing a new rate structure that would
cap an annual US$500 per channel minimum fee at $50,000 for webcasters
in exchange for them providing more detailed data on the music they
play and make efforts to stop unauthorized stream-ripping.
In addition, SoundExchange is considering allowing small webcasters to
continue paying royalties under the existing rate structure until
2010. SoundExchange is holding larger webcasters to the new rate
structure and its flat per-song, per-listener fees, but also capping
the annual per-channel charges.
Independent music webcasters would prefer having the blade hanging
above their heads removed completely. That could happen if the
Internet Radio Equality Act makes it through the legislative process.
The act, which now has more than 100 cosponsors, was introduced by
Rep. Jay Inslee, D-Wash., and Sen. Ron Wyden, D-Ore. Among its five
major provisions, the act would nullify CRB judges' recent decision
not to review the new royalty rate structure.
New Discovery
Copyright infringement involving digital film was also at the center
of a precedent-setting ruling in the 9th Circuit Court of Appeals in
May. In the case of Columbia Pictures Industries v. Justin Bunnell,
Central District of California Magistrate Judge Jacqueline Chooljian
ruled that data contained in a computer server's Manage remotely with
one interface -- the HP ProLiant DL360 G5 server. random access memory
(RAM) -- specifically, the TorrentSpy service -- is "electronically
stored information" for purposes of a rule -- included in the Federal
Rules of Civil Procedure -- that is part of a set of civil law
procedures governing discovery of electronically stored information
that was introduced last year.
The judge ruled that the defendant should begin logging the contents
of certain servers' RAM and producing their logs. Chooljian's ruling
"raises potentially endless legal and metaphysical questions by
opening the door to discovery of data in RAM," according to Clifford
Davidson, an associate in the Los Angeles office of Proskauer Rose.
"It is important to note that Judge Chooljian limited her ruling to
the facts of the case before her. The Federal Rules require all
companies that reasonably anticipate litigation to preserve
potentially relevant documents and electronically stored information,"
Davidson told the E-Commerce Times.
TorrentSpy's motion to review Chooljian's ruling is due to be heard
Aug. 23 in district court.
"Among other things, TorrentSpy contends that the ruling requires
TorrentSpy to create records for purposes of responding to discovery
that would not exist but for the order to create them -- something the
Federal Rules ordinarily do not require; that the ruling requires
TorrentSpy to violate the law of the Netherlands, which is where
TorrentSpy's servers are located; and that the ruling violates the
First Amendment rights of TorrentSpy's visitors," Davidson summarized.
The Electronic Frontier Foundation Latest News about Electronic
Frontier Foundation (EFF) has submitted an amicus brief in support of
TorrentSpy's motion, he added.
"If the district court judge affirms Magistrate Judge Chooljian's
ruling that RAM is electronically stored information and therefore a
'document' for purposes of the Federal Rules, a P2P or Web service
provider that anticipates litigation and that has potentially relevant
materials stored in RAM will be required to preserve those materials.
The question of whether logging is required is a separate issue that
also must be addressed by the District Court," Davidson explained.
Searching for Clarity
Earlier this month, the EFF filed another amicus brief in another
precedent-setting ruling in the 9th U.S. Circuit Court of Appeals
requesting it to review a ruling in a housing discrimination lawsuit
brought against Roommates.com by the Fair Housing Council of
California's San Fernando Valley and the Fair Housing Council of San
Diego.
A three-judge panel ruled that Roommate.com could be held liable for
the activity of its users because it "suggested, encouraged or
solicited" and then sorted and categorized content that may have
violated fair housing law, according to the EFF.
"Section 230 has been uniformly interpreted as a firm decision by
Congress to adopt a non-regulatory approach regarding online
information intermediaries. The language of the statute and the
legislative history supports those determinations," EFF staff attorney
Matthew Zimmerman told the E-Commerce Times.
"As we state in our brief, the 9th Circuit ultimately expressed a
different policy preference than the one articulated in the statute by
Congress, and that's simply not a legitimate basis to deviate from the
statute," he said.
The ambiguity of the ruling in terms of the ramifications for other
search engines and customized search service providers is the problem,
according to Zimmerman.
"The statute of the language is clear, and the court's decision throws
that clarity in doubt. Specifically, the court's finding that
'channeling' and 'limiting the distribution' of information could open
providers of Web services to liability seriously jeopardizes the
ability of these providers to improve the accuracy and customization
of their services, not to mention puts their current offerings into
jeopardy," he said.
Jurisdiction Over Internet Telephony
The Federal Communications Commission Latest News about Federal
Communications Commission (FCC) has taken a go-lightly approach to
extending its jurisdiction over Internet telephony. However, that is
likely to change with accelerating adoption.
"I think the FCC seems to be leaning toward asserting jurisdiction on
Internet telephony. The FCC, in its report to Congress on universal
service, concluded that full regulation of Internet phone service as
telecommunication common carrier was not advisable, but a full
examination of Internet telephony is needed to establish a regulatory
framework for this industry," attorney Martha L. Arias, director and
senior editor of IBLS (Internet Business Legal Services), told the
E-Commerce Times.
The FCC has given an indication of the services they may consider
falling within their jurisdiction over telecommunications, Arias
explained.
"For instance, the backbone services provided to ISPs appear to be
telecommunication services according to some news releases from the
FCC; they also stated that the phone-to-phone Internet telephony
service (not computer-to-computer service) appears to be a
telecommunications service as well," she said.
The FCC last year was considering requiring Internet phone companies
and wireless service providers to contribute to the Universal Service
Fund, which subsidizes phone service for low-income and high-cost
consumers, she added.
"As you may see, these may be baby-steps, but they are undoubtedly
pressing forward," Arias said.
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