Media Law Essay, Research Paper
I. The Internet And Its Effects On Mass Media Law
In the 17th and 18th centuries, America went through what was known as the Industrial Revolution, where Western culture as a whole went from using hand-tools to using machines that mass-produced the same items. What once took a week to produce now took a day to produce.(Kitano, 1999) Now, as we cross over into the 21st century, we have entered what has been called The Information Revolution, or the Information Age. We live in a time where information is only a mouse-click away for a large portion of the country and the world. Up until ten years ago, people had to go to their local library or purchase an expensive encyclopedia set for their home just to obtain information. Now, information is free and easily accessible from the home. Why pay five hundred dollars for an encyclopedia set when you can get on the Internet and obtain even more information for free? Also, within the past year, Internet service to the home has become available free of charge through certain providers that subsidize their service through advertisements. But with all these advantages, there definitely has to be a flip side of the coin. An old adage says that everything comes with a price, and that is definitely true of the Internet. The purpose of this paper is to discuss how this new technology has affected Mass Media Law and society as well. For the sake of time and space, I will give only a brief overview of each act, bill, or case that is presented so that I can focus more on the effects and implications of each. With the Internet becoming more and more popular, the world now faces many new legal and moral questions raised by this emerging technology. I will address several of the more important of these questions, including the following: “How do we keep indecent material from minors?,” “How do we protect authors of original material from having their creation spread all over the world for everyone to copy?,” and “How do we create a system where people that libel other individuals anonymously on the Internet can be prosecuted for their crime?” It is questions like these that our world has had to face in the past two to three years since the Internet has come into the foreground. A work of this length would have a great difficulty trying to exhaustively address every angle and issue involved in media law and the effects that the internet has upon it, and instead must give a cursory overview of several main issues in the forefront of today’s legal news.
II. The Internet and Obscenity
A. Brief Overview Of The Communications Decency Act of 1996 and The Child Online Protection Act (CDA 2)
In 1996, Congress passed the Telecommunications Act of 1996.(Telecommunications Act, 1996) The purpose of this act was To promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies. (Telecommunications Act, 1996) In and of itself, the act was intended to create healthy competition in the new, fast-emerging, unregulated market that the Internet, cable television, and telephone companies had helped to create. It was also to help foster fair competition in this new market.
It is Section 5 of this act that gets the most attention, however. Section 5 is also known as The Communications Decency Act of 1996. The CDA attempted to restrict all people, regardless of age, from creating, viewing and transmitting indecent material via the Internet. Indecent speech is defined as material that may be sexually graphic but is protected by the First Amendment. Indecent material is also referred to as adult material or sexually explicit material. (Pember, 1999) This is a very vague description of the term “indecency,” but so far, it has yet to be challenged in the Supreme Court. As District Judge, Dalzell said in his response to the CDA, “The definition of indecency, like the definition of obscenity, is not a rigid formula. Rather it confers a large degree of autonomy to individual communities to set the bounds of decency for themselves.”(Dalzell, 1998)
The term “obscenity” also seems to attract attention in today s legal system. The definition of “obscenity” was agreed upon by a majority of the Supreme Court after the case Miller v. California in 1973. Chief Justice Warren Burger set the following standards for defining obscenity: “1) An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest. 2) The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law. 3) The work in question lacks serious literary, artistic, political or scientific value.”(Dalzell, 1998) Before the CDA, the law protected indecent speech, but not obscene speech. The Telecommunications Act was passed in 1996, but Section 5, otherwise known as the CDA, was later declared unconstitutional by the Supreme Court in Reno v. ACLU, not because it presented high barriers to entry for minors, but because it presented those same barriers to adults, thus infringing on their constitutional right to view indecent material.
Soon after the CDA was declared unconstitutional, Congress made another attempt to attack indecency on the internet by passing what was called The Child Online Protection Act or as it was so aptly named, “CDA 2″. The purpose of COPA was the same as the original CDA, but it applied to commercial sites on the Internet. “Whoever, in interstate or foreign commerce, by means of the World Wide Web, knowingly makes any communication for commercial purposes that includes any material that is harmful to minors without restricting access to such material by minors pursuant to subsection (c) shall be fined not more than $50,000, imprisoned not more than 6 months, or both.”(Stuckey, 1999) COPA was declared unconstitutional by the Supreme Court after the ACLU filed a suit against the Department of Justice immediately after the act was passed.(ACLU v. Reno, 1998) This ruling was due to the fact that COPA was almost identical to the CDA, and it still raised high barriers to entry for adults. One positive result of COPA was the fact that Congress clarified itself on how it officially defines indecent material: “Any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated normal or perverted sexual act or a lewd exhibition of the genitals or post pubescent female breast; and (C) taken as whole, lacks serious literary, artistic, political, or scientific value for minors.”(ACLU v. Reno, 1998) Basically, this definition was a combination of the Miller test resulting from the aforementioned case Miller v. California, and the definition of indecency given by the Supreme Court.
B. Children and the CDA: How Do We Keep Pornography From
Our Kids?
The question remains: if the government cannot keep indecent material on the Internet from minors, then who can legally take up that task? After having searched the internet for different methods of filtering internet sites, whether it be through the means of filtering software or through the use of a “family-friendly internet service provider (ISP),” I have come to the conclusion that it is up to the parents. No filtering software or ISP can block out all pornography successfully, because children are more knowledgeable about technology today than ever before. There are numerous ways to circumvent current filtering softwares and Family-Friendly ISPs through the use of certain websites that provide a cloak for the Internet user. One such site is known as The Anonymizer.(Anonymizer, 1999) This site allows the user to be anonymous to anyone that is monitoring their actions from a remote location. For instance, if I want to view a website that is not allowed by Web Sense on the Toccoa Falls College Internet server, I would simply surf over to www.anonymizer.com and enter the address that I want to visit anonymously. The frightening part is that this service is free of charge to anyone who has Internet access. However, if parents take up the task of monitoring what their children view on the internet, not only will they have control over what they see, but this will also force the parents to spend more time with their children, which is, to use an old clich , “Killing two birds with one stone.” This is a perfectly legal way to control minors’ access to pornography. On the internet today, all a minor needs to do in order to access pornography is to click on a disclaimer at the start of a pornographic web page, stating that they are 18 years of age or older, and that pornography is not illegal in their community. I liken this method to the current system that exists for keeping alcohol and tobacco from minors. It all rests upon the person that is selling the alcohol or tobacco: it is up to them if they ask for proper identification or not. A study done in 1997 by the University of Michigan found that “1 in 2 (46%) twelfth grade students report drinking monthly.”(Johnson, 1997) Granted, the government does attempt to stop underage drinking by cracking down on retailers of alcohol and tobacco, but the government has its own limitations and can only do so much. If we want to stop underage drinking and smoking, we need to talk to our children about the dangers involved and take an active role in their lives to assure that they make the right choices. The same concept applies to pornography on the web. However, there are two major differences between buying alcohol and viewing pornography on the internet: First, there is no one person “behind the counter” to check identification; second, it does not cost an adult anything to show identification for the purchase of alcohol or tobacco: A barrier that the CDA and COPA could not seem to conquer.
Some have suggested making legislation that would require web site owners to register their domain names with a “xxx” at the end of the domain name, such as “www.playboy.com.xxx” which would automatically inform filtering software or ISP’s that the site contains pornography as defined by the standards of the federal government. However, the biggest problem with this suggestion is that it would require web site owners to spend money on registering their domain name. Currently, most pornographic web sites do not cost anything because they are free due to the paid advertising that runs in the background or through what are known as “pop-up windows.” This would create a barrier to entry for any adults that wanted to create a pornographic web site, one of the main reasons that both the CDA and COPA were declared unconstitutional by the Supreme Court.
Again, the question remains: how do we keep pornography on the Internet from minors? The answer is simple: parents must be the gatekeepers because the job does not belong to the government. This solution is not talked about much because a good number of parents in America are too busy with work or other activities to take the time to monitor their children’s behavior. The secondary avenue for protecting minors from Internet pornography is using filtering software or “Family-friendly Internet Service Providers,” which should be used in conjunction with parental monitoring. There is a bottom line for this issue: If parents do not want their kids viewing pornographic or other material that they deem inappropriate for minors, then they must get involved. Involvement is a small price to pay for tomorrow’s future.
C. How Do We Respond As Christians to Obscenity, the CDA
And COPA?
As Christians, we are more inclined to look at the CDA and see it as a positive step in the right direction for our country and especially our children. However, what most people do not realize is that the CDA, had it been approved by the Supreme Court, would have taken away fundamental rights provided to every American. The right to view indecent material is protected by the same First Amendment that gives Christians the right to believe the way we do and to be vocal about those beliefs. In doing extensive research for the purpose of this paper, I was amazed at some of the outright ignorance on the part of Christian organizations concerning the issue of indecency on the Internet. The Family Research Council, in one of its numerous documents addressing the issue of indecency on the internet said,
“But computers may also bring into public libraries and the classroom not just novel ways to present or access academic facts and retrieve articles, but also character-corrupting images in the form of Internet obscenity as well as academic plagiarism on a previously unimaginable scale. The chief protagonists in this struggle for the hearts, minds and souls of America s children and citizens are the American Library Association (ALA) and the American Civil Liberties Union (ALCU) two groups that have had great success in cloaking their core agenda of moral and social nihilism in First Amendment garb.”(Marshall, 1999)
I do not understand how Christians seem to forget that organizations like the ACLU and the ALA have been crusaders for the First Amendment thereby protecting the right of free speech for Christians as much as for purveyors of pornography on the internet, even if their motives may have not been Christian in nature. With a name like “The Family Research Council,” one would be inclined to expect them to support the idea of parental supervision and involvement when it comes to indecency and minors. If we as Christians are not careful and we attempt to censor anything that does not agree with our doctrine and do not stand up for the First Amendment, the censurers may soon become the censored.
The question of what makes indecency and obscenity any worse than the depiction of violence must also be raised. Judge Sarokin best reflected this sentiment in E-Bru, Inc. v. Graves when he said “They [indecent materials] also seem to arouse passions of an entirely different sort. If a merchant announced his intention to open a store dedicated to murder mysteries, no matter how violent or bloody, nary a picket or protestor would appear. But should one announce that sex is to be the main theme, then organized opposition is inevitable.”(E-Bru v. Graves, 1983) How do we respond to this sentiment as Christians? First, we must look at what Jesus said in Matthew: “You have heard that it was said, ‘Do not commit adultery.’ But I tell you that anyone who looks at a woman lustfully has already committed adultery with her in his heart.”(NIV) When looking at this from a Christian perspective, we see that when it comes to lust, mere intent is sinful. This same admonition is not used to address intentions of anger and violence, rather only the actions resulting from those intentions. In Ephesians, Paul states, “In your anger do not sin: Do not let the sun go down while you are still angry “(NIV) These verses show a difference between indecency and violence from a Christian perspective. However, since we live in a non-Christian world, we must make our position known concerning not only indecency but violence as well, yet at the same time protecting the First Amendment and subsequently free speech.
III. The Internet and Libel Law
A. Brief Overview of Current Libel Law Involving The
Internet
Libel can be defined as “Published or broadcast communication that lowers the reputation of an individual by holding him or her up to contempt, ridicule, or scorn.”(Pember, 1999) In order for a plaintiff to win a libel suit, there are five conditions that must be proven to exist: (A) The libel was published. (B) The words were dealing with the plaintiff involved in the suit. (C) The material contained in the publication is defamatory. (D) The material contained in the publication is false. (E) The defendant in the suit is found to be at fault. All five of these conditions must exist for a plaintiff to win a libel suit. Libel is also referred to as “defamation,” which is more narrowly defined as “a communication which exposes a person to hatred, ridicule, or contempt, lowers him in the esteem of his fellows, causes him to be shunned, or injures him in his business or calling.”(Pember, 1999) The Internet is considered to be a mass medium the same as radio, television, or newspaper, in regards to libel law.
B. How Does Libel Affect On-Line Service Providers? (OSP)
Before the passage of the Telecommunications Act of 1996, On-Line Service Providers (OSP s) would have been held liable for any acts of libel or defamation committed using their services or equipment. According to 509 of the law, No provider or user of an interactive computer service shall be treated as the publisher or speaker of information provided by another information content provider. (Woody, 1996) This was ultimately put to the test in the recent case of Blumenthal v. Drudge. Matt Drudge is the author and publisher of The Drudge report which appears on the web at www.drudgereport.com It is a site that posts rumors and other types of gossip that take place primarily on Capitol Hill. Matt Drudge is the person who began circulating the story concerning the Monica Lewinsky and President Clinton sex scandal, leading to further investigation. Late at night on the evening of Sunday, August 10, 1997, defendant Drudge wrote and transmitted the edition of the Drudge Report that contained the alleged defamatory statement about the Blumenthals. Drudge transmitted the report from Los Angeles, California by email to his direct subscribers and by posting both a headline and the full text of the Blumenthal story on his world wide web site. (Blumenthal v. Drudge, 1998) The report contained defamatory speech aimed specifically at Mr. Blumenthal, stating that he had a history of spousal abuse. The banner on the web site read, Charge: New White House Recruit Sidney Blumenthal Has Spousal Abuse Past. Not only was Drudge putting himself in the way of litigation, but he also inadvertently brought his on-line service provider, America Online(AOL) into the legal picture. The Blumenthals filed suit against both Drudge and AOL, claiming that both were responsible for the defamatory statement. AOL asked for a summary judgment and was granted one by a district court in the District of Columbia. Judge Friedman in his summary judgment for AOL stated:
AOL is not a passive conduit like the telephone company, a
common carrier with no control and therefore no
responsibility for what is said over the telephone wires.
Because it has the right to exercise editorial control over
those with whom it contracts and whose words it
disseminates, it would seem only fair to hold AOL to the
liability standards applied to a publisher or, at least,
like a book store owner or library, to the liability
standards applied to a distributor. But Congress has made a
different policy choice by providing immunity even where
the interactive service provider has an active, even
aggressive role in making available content prepared by
others. In some sort of tacit quid pro quo arrangement with
the service provider community, Congress has conferred
immunity from tort liability as an incentive to Internet
service providers to self-police the Internet for obscenity
and other offensive material, even where the self-policing
is unsuccessful or not even attempted. (Blumenthal v.
Drudge, 1998)
In speaking about Congress providing immunity, Judge Friedman was referring to the Telecommunications Act of 1996, which removes liability on the part of OSP s. Five years before the Telecommunications Act, CompuServe was sued for publishing libel, but was later found to not be liable for the offense. CompuServe was considered to be a distributor, not a publisher, and therefore was not responsible because it did not know and had no reason to know of the statements. (Cubby v. CompuServe, 1991) However, considering the increase in libel litigation involving the Internet, if the legal system keeps heading in the same direction that it is today this law could change. As for the OSP s, most of them, such as AOL, CompuServe, and Prodigy will only police web pages originating from their servers when they are alerted to an offense. Even considering the Terms of Use agreement forms created by AOL and CompuServe, these legal notices do not say much concerning obscenity, let alone libel and defamation. CompuServe, for example (which is owned by AOL and therefore has the same legal notice), states the following in its service agreement which every member who signs up for service must agree to and digitally sign:
Neither CompuServe nor any of its partners, agents,
affiliates, suppliers or content providers shall be liable
for any direct, indirect, incidental, special or
consequential damages arising out of or relating to any use
of compuserve.com (CompuServe, 1999)
While this legal notice may not specifically deal with obscenity or libel, other parts of it do seriously address the issue of copyright, which will be discussed in more detail in the next section.
Even if it is granted that we could hold OSP s and ISP s liable for any and every crime that is committed using their services, are we to ignore individual responsibility? It is not Prodigy s fault that someone posts a libelous statement in one of their public forums or uses web space provided by Prodigy to create an obscene website. The service provider should have a responsibility to remove the offensive materials and terminate the user s account. MindSpring, currently the country s largest ISP, does not address the issue of libel or defamation either. In their service agreement they state,
I understand that Mindspring reserves the right to
terminate my account at any time, for any reason,
including, but not limited to, my failure to abide by the
terms of this agreement I understand that violation of
certain generally accepted guidelines on Internet usage,
such as restrictions on mass e-mailings and mass
advertising, or posting to inappropriate newsgroups, may
cause severe operating difficulties for MindSpring, and
would be a likely cause for termination of my
account. (Mindspring, 1999)
After researching these service agreements that most OSP s and ISP s post on their websites, I noticed that none of them forbade the posting of obscenity or libelous speech. This omission is possibly due to the fact that if they do not make a disclaimer concerning libel, they will be able to claim ignorance if sued. If OSP s and ISP s were to make official claims that they prohibit certain actions such as libel, the courts could possibly find them liable for the offenses. But, if service providers want to keep their immunity that is granted to them by the Telecommunications Act, then they must successfully self-regulate and police their property without making themselves available to litigation. If service providers police libel as seriously as they police spamming (the sending of unsolicited email messages), they would be well on the way to effectively policing themselves. Spamming , however, is another subject which will be discussed later.
C. How Does Libel Affect The Internet User?
The best case to discuss when talking about libel and the Internet user would be the case of Blumenthal v. Drudge, which I presented earlier. On his website, The Drudge Report, Drudge posted a clearly libelous statement concerning Sidney Blumenthal and an alleged history of spousal abuse. Two court cases were involved in this procedure. In the first, the Blumenthals sued both Drudge and AOL. AOL moved to get a summary judgment, and was granted one by Judge Friedman. During the course of the first case, Judge Friedman found that Drudge was guilty of libel. The only remaining question was:
whether defendant Drudge (1) regularly does or solicits
business in the District of Columbia, or (2) derives
substantial revenue from goods used or consumed or services
rendered in the District, or (3) engages in any other
persistent course of conduct (Blumenthal v. Drudge,
1998)
It was later revealed that Drudge regularly sent emails to residents of the District of Columbia, as well as received financial support from residents of D.C. In the first court case, AOL was also named as a defendant, but was later granted a summary judgment, not being found liable for Drudge s actions due to protection for OSP s under section 509 of the Telecommunications Act. Drudge had come face to face with what is commonly referred to as the long-arm statute of the District of Columbia, because
(1) of the interactivity of the web site between defendant
Drudge and District residents; (2) the regular distribution
of the Drudge Report via AOL, e-mail and the world wide web
to District residents; (3) Drudge s solicitation and
receipt of contributions from District residents; (4) the
availability of the web site to District residents 24 hours
a day; (5) defendant Drudge s interview with C-SPAN; and
(6) defendant Drudge s contacts with District residents who
provide gossip for the Drudge Report. The requirements of
subsection (a)(4) of the District of Columbia long-arm
statute have been satisfied. (Blumenthal v. Drudge, 1998)
So what does this mean for the everyday Internet user? Its primarily implication is this: even though the Internet is a global village, the arm of the law can still intervene. Many have hypothesized that because of the global nature of the Internet, jurisdiction as it is known in the real world, as opposed to cyberspace, will be thrown out. Apparently, this is not true, at least in the United States. However, the government runs into a wall when it tries to pursue offenders outside its borders. If each state wants to effectively prosecute Cyberspace offenders, they must adopt long-arm statues if they haven t already adopted them. According to the Due Process clause of the fourteenth amendment, states are allowed to enable a long-arm statute which allows local courts to obtain jurisdiction over nonresident defendants when the cause of action is generated locally and effects local plaintiffs. (Cummings, 1998) The Global Village may end up not being as global as we thought it was.
The one advantage that the every-day Internet user has is that unlike traditional media such as Television or Newspapers, the Internet allows the libellee to respond instantly without any barriers to entry.
If you put on the Internet something that is false and defamatory, anyone with access can instantly, in essence, broadcast a response. That ability to respond is what tremendously changes how the law of libel is going to evolve Old libel law treated people who were attacked as though they could not effectively respond and held that the only way to respond was a lawsuit seeking money damages. That s not needed now because the message can get out. (Christensen, 1998)
IV. The Internet and Copyright Law
A. Brief Overview of Copyright Law
Copyright is defined by Pember as that body of law which protects the works created by writers, painters, photographers, performing artists, inventors, and other persons who create intangible property. (1999) Not every item created may be copyrighted, however. Those that can be copyrighted include the following: ”
+ Literary works (including computer software)
+ Musical works, including any accompanying words
+ Dramatic works, including any accompanying music
+ Pantomimes and choreographic works
+ Pictorial, graphic, and sculptural works
+ Motion pictures and other audiovisual works
+ Sound recordings” (Pember, 1999)
Copyright was first created in Great Britain back in the 1500 s when the government was granting privileges to printers who gave their loyalty to helping the government get rid of anti-establishment writers. However, authors rights were not protected until the 18th century when the British government made the nation s first copyright law. Later, when the United States was officially formed and the Constitution was written, the founding fathers included the same Copyright law that had existed in Britain. In 1976, after almost 200 years, the government changed Copyright Law to protect music, writing, and the arts.
B. Internet Domain Names and Copyright
Did you ever wonder how places like Yahoo! get their own web space called www.yahoo.com ? This is known as domain name registration. The domain name in www.yahoo.com is yahoo.com. Getting a personalized domain name is a very simple process, and it is relatively the same price for everyone. The current running price is approximately $70 to register with InterNIC, the organization that registers all the domain names on the Internet, and this fee is renewed annually. Then a setup fee is paid to the ISP that will be hosting the web page. Finally a monthly charge is paid to the ISP for the ability to use their server on a monthly basis. Mindspring, for example, charges $50 for a setup fee, $70 for registration with InterNIC, and then $30 a month thereafter. However, if you are content with not having your own personalized domain name, you can sign up at one of the many places on the web that will provide free web space. These providers can offer free space because they run advertisements in the background whenever your web page appears on the screen. Basically, domain names are like license plates for cars: you can pay a nominal fee for a random license plate, or you can pay a large fee for a customized license plate, either of which must be renewed annually.
However, what happens when someone registers www.gwbush.com and then attempts to sell it to Republican presidential candidate George W. Bush for a large sum of money? This tactic is known as cyber squatting. As of the writing of this paper, the Senate had just introduced the Domain Name Piracy Prevention Act of 1999.(S. 1461, 1999)
The anti-cyber squatting legislation approved by the House and Senate conferees would give individuals, as well as trademark and service mark holders, the ability to recover statutory damages of up to $100,000 from those registering their names or marks as domain names in bad faith. (Sandburg, 1999)
The punishment does not stop there. The Senate bill also creates criminal penalties for repeat offenders of cyber squatting.
What happens when Domino s Pizza wants to start a web page located at www.dominos.com and Domino s Sugar wants to do the same? Who gets to keep the name? Currently, there is no legislation concerning this, but there are some possible solutions that can be implemented without having to enter into any type of litigation. For an example, we can look at what the Federal Communications Commission does when it has two radio stations in the same area vying for the same channel. When this kind of situation occurs, the FCC holds an auction and takes the highest bidder. This is one possible solution to the problem. It does cause a high barrier to entry, however, at least higher than normal. If some companies are willing to pay thousands of dollars for their personalized domain name, then it might be of value to them. As an alternative, Jonathan Bick, an Internet law professor at Rutgers University, has suggested that instead of selling domain names, the government or private institutions could begin to license, not sell, Internet domain names.
Internet domain name owners should be advised of the risk of allowing the value of an Internet domain name to wan because it is contractually tied to an obsolete e-enterprise. They should also be advised of the possible tax advantages licensing has over selling, such as income spreading. (Bick, 1999)
Income spreading, as mentioned in the previous quote, is a practice in which a person or company spreads their income out over a period of time. A good example of this was given to me by my father, Charles Scaglione, who worked for IBM throughout the 1980 s as one of their accountants.
Back in 1960 s and 1970 s, IBM flourished and profits were high along with a tremendous cash reserve. This was due to the rental base they developed from their mainframe computer sales. The rule in the industry was to lease your mainframe and pay a monthly/yearly lease fee and return the equipment for upgrades or new machines when available. IBM s rental sales were the envy of the industry as they had so much cash in the bank. The IRS threatened penalties if they did not pay additional dividends to their stockholders because they had such large cash reserves. Later, the industry changed, and people wanted to buy their own mainframes, not lease. Without its solid monthly rental base of income, it became ever increasingly vulnerable to the industry trends and ups and downs. (Scaglione, 1999)
The situation could be the same for Internet domain names. Instead of a company putting all its stock into a permanent name, they could license the name for a short period of time. With this solution, if they either go out of business or become obsolete, then they are not stuck with a domain name, and another company can be free to use that name. Currently, when two companies want to use the same domain name, InterNIC will suspend the user of that name until the dispute is resolved in court or by arbitration. While the domain name is on hold, it is unavailable for use by any person or entity. (Bick, 1999)
Although licensing may seem to be a viable alternative to selling domain names, one must consider whether or not this will invite government regulation. Before the Federal Radio Commission began regulating radio, radio was left to police itself. It was unsuccessful in this effort, resulting in the creation of the FRC and later the FCC. Could Internet domain name registration take the same path? I believe that if things get out of control, then the government will have no choice but to intervene.
C. Affect of Internet on Authors of Literary Works
Still another area that copyright law on the Internet will affect is the rights of the authors of literary works, scientific works, and musical works. What happens to the author that publishes one of his or her stories on their web page and someone else comes along and “cuts and pastes” the story to his web page claiming that he wrote the story? What happens when a professor at MIT publishes his findings on cold fusion, and a scientist at Los Alamos National Labs comes along and copies the findings and puts them in his report on cold fusion? This is more commonly known as the law of misappropriation, or unfair competition.(Pember, 1999) This is easily punishable here in the United States, but what about that Los Alamos scientist that just copied the MIT scientist s findings on cold fusion? One way to prevent this problem would be to follow the ASCAP(American Society of Composers, Authors and Publishers) licensing model. ASCAP is the organization that protects authors, composers and publishers from copyright infringement by selling and licensing the rights to copyrighted works. Rutner suggests applying this model to the Internet:
The way in which performance rights organizations regulate transmission of music over the radio and television provides a model solution to Internet copyright infringement. Similar organizations could license Internet Service Providers ( ISPs ), the companies that provide access to the Internet for individuals, to allow their users to transmit different types of digital information, such as music, documents, and computer programs over the Internet. Copyright holders could regulate the transmission of information through these licensing companies the same way music writers and publishers use performance rights organizations today. (Rutner, 1998)
This application would not only apply to literary works, but also to the new technology known as MP3. MP3 s are sound files that are easily transmitted over the Internet due to their smaller size. These are referred to as “smaller” because before MP3 s, the most comparable files were .WAV files. For a five minute song, these .WAV files could range in size from 40 megabytes to 70 megabytes. These .WAV files were of CD quality (44,100Khz, 16-bit depth) thus taking up large amounts of space. The MP3 came along and reduced that file size to approximately 3 megabytes through a new compression method. MP3 s are not CD quality, but they are close enough that most consumers will never know the difference. Currently, in the midst of the MP3 craze, consumers and authors alike have begun uploading and downloading their copyrighted works of music over the Internet in literally no time at all. The fact that the average bandwidth of the Internet is increasing at exponential rates will only serve to further compound this problem. Not too long ago, people were using 33.6Kbps modems at home. Now those same people are using at least a 56Kbps modem, or an ADSL (Asymmetric Digital Subscriber Line) connection, which is 50 times faster than a 56Kbps modem. This increase in speed means that MP3 s that used to take 30 minutes to download will now take 30 seconds. At first, the music industry was not concerned about this new trend. MP3 s, though they are smaller and are great for storing 200 songs on one compact disc, will not play in a regular CD player; they can only be read by a computer. Then a new little gadget came along. Its name is the Diamond Rio. It is the recording industry s newest and greatest fear. The reason: it can store up to 60 minutes of MP3 music downloaded from the Internet. It is a portable device that is much akin to the Walkman tape cassette player, only much smaller. Recently, the Recording Industry Association of America sued the makers of the Diamond Rio, Diamond Multimedia Systems, arguing that the device violated the Audio Home Recording Act(AHRA) because it did not contain a Serial Copyright Management System(SCMS) and because Diamond Multimedia had not paid the proper royalties. (Downing & Knight, 1999) However, the Ninth Circuit disagreed, and declared that the device is not a digital audio recording device as defined by the Act primarily because of a loophole that exempts computers. (Downing & Knight, 1999) I am sure that this is not the last that we will hear of this debate. Meanwhile, sales of devices like the Rio are predicted to reach 5.2 million cards for 1999.(Business Editors, 1999) Currently, Diamond Multimedia Systems is in the process of developing a SCMS so that the Diamond Rio cannot play music that is unauthorized by licensing agencies:
The Secure Digital Music Initiative(SDMI) specification currently provides a default usage rule that will restrict the copying of legacy content, that is, existing copies of CDs and digital music files. Each time content without usage rules, like an existing CD, is copied and stored in the local SDMI format, only four copies can be made of that copy. (Downing & Knight, 1999)
These are just a few of the solutions that could possibly reduce the amount of copyright infringement on the Internet. Only time will tell if the government will step in to regulate yet another commodity.
V. Unsolicited Email Messages (SPAM)
The final subject that I will address is that of junk email, more commonly known as Spam. Spam is unsolicited email on the Internet usually pertaining to commercial purposes. Its physical equivalent is the same junk-mail that people receive through the United States Postal Service. Currently, only three states have enacted legislation outlawing the act of Spamming: the State of Virginia, the State of Washington, and the State of California. Though only three states currently outlaw Spamming, the catch-22 is that most email and internet traffic passes through either Virginia or Washington State, thereby allowing Virginia to enact its long-arm statute.(S. 881, 1999) However, Church states that
even Virginia s law is significantly restricted in its scope and applicability. It covers only e-mail sent with the intent to forge or falsify routing data. Put another way, the sending of unsolicited bulk e-mail is unaffected by this law if there is not falsification of routing or point of origin. (Church, 1999)
Why have these three states taken such action? First, both Virginia and Washington have a large number of Internet-based businesses as well as ISP s located within their borders. Washington state is also the home of the software giant, Microsoft. America Online (AOL) is based in Herndon, Virginia as well. Even if a person in Florida Spams someone in Chicago, chances are that that email passes through servers located in Virginia, thereby giving Virginia the right to prosecute. Merely sending an unsolicited email message is not going to land someone in court. Officially, the Computer Crimes Act
makes it the crime of computer trespass to (a) falsify or forge e-mail message transmission information in connection with unsolicited bulk e-mail and (b) sell, give, distribute, or possess software whose principal purpose is to facilitate unsolicited bulk e-mail. (S. 881, 1999)
Basically, these two states are after people that use false email addresses full of false promises and false hope. As usual, the rest of the states are expected to follow. Certainly, no one enjoys getting Spam mail, let alone junk mail in the real world. Yet alternatively, how does this affect the privacy of the individual? If one does not want to read the Spam, he can simply delete the offending message and let that be the end of the issue. Personally, I receive approximately 30 Spam messages each day and I know exactly which ones to delete and which ones to save. It only requires a few extra seconds out of my day. Obviously, I am going to delete a message with the subject that reads Viagra 50% off at our Website! That is the type of message found in most Spams. Looking further into Washington s Spam legislation, some serious privacy issues are raised. Miller gives us a good example of how privacy can be invaded through these new legislations:
Samantha begins typing an electronic mail, or e-mail, to
her business partner, Roger, outlining her latest ideas
about their plan to found an Internet start up company that
would offer innovative new services over the World Wide
Web. She titles the message A few more thoughts about our
new company. At the end of the message, Samantha quickly
reminds Roger that she is in the market for a new computer
and that she would gladly sell her old computer to him for
a decent price. Samantha clicks the send button on her e-
mail browser and assumes that Roger will receive the
message without delay or inspection. The message travels
across the Internet to Roger s Internet Service
Provider (ISP), but unknown to Samantha or Roger, the ISP
saves a copy of the message for delivery. The ISP then
examines the contents of the saved message, including
Samantha s private statements about their new Internet
company. Based on Samantha s comment about selling her
computer, the ISP determines that the message constitutes
commercial e-mail containing a false or misleading subject
line. The ISP then directs the message into cyberspace
limbo. (Miller, 1999)
Though this scenario might seem far-fetched, it is not far in the future.
When I use the Internet at home I use MindSpring Internet Services. I have been one of their customers for the past two years, and they offer what is called The Spaminator+.” This service blocks out Spam emails, and speaking from personal experience, this service works. I did not discover this service until after two months of being with MindSpring. Before turning on the Spaminator, I received Spam messages on a daily basis. But since I started using this service, I have not had a single Spam message come across my Mindspring inbox. Apparently, this method of email filtering works. Unlike the service mentioned in the article, the Spaminator filters email differently, without invading anyone s privacy. MindSpring s Spaminator page describes the process of how it filters out Spam:
A list of well known Spam creators determine which mail
should be filtered. This master document is created,
regularly updated, and monitored by MindSpring s Abuse
department. Unfortunately, we cannot customize Spam
filtering on an individual basis or account. The following
is an overview of the process in two main steps:
1. Email from certain known spammers addresses is not
delivered.
2. Email from known spamming programs is not delivered.
These are email programs which are designed to send
messages in bulk, while hiding the point of origin
(spoofing).
The specifics of our filtering procedures will remain
unpublished. (MindSpring, 1999)
What I found even more interesting is that later on the same web page, MindSpring even admitted that there is no fool-proof method of eliminating unsolicited email (MindSpring, 1999) I am forced to ask the question: How far will we go to stop Spam? Will the government enact legislation making it mandatory for ISP s to inspect every piece of mail, or at least filter them? This sort of inspection will eventually, if it has not already, invade each individual s right to privacy if a better way is not created. Personally, I believe that the Spaminator+ is a good idea and from experience, it has worked for me. Currently, the service is on a voluntary basis, but if ISP s want to fight Spam, they will follow MindSpring s lead and offer this service to all users. In the future, however, this filtering service may become mandatory due to extensive litigation involving unsolicited email.
VI. Conclusion
In this paper, I have attempted to discuss the most current and most prominent issues facing both lawyers and the average Internet user. Clearly, there are not enough pages or enough time to discuss every single issue that exists today. Rather I dealt with issues that either interested me or that were discussed in class. There is a new age upon us and it is the Information Revolution. What we do with it and how we choose to govern it is up to us. I can remember a time back before the Internet was at the popularity level that it is at today. There were no graphics, only text, and just a few hundred thousand users that were dedicated and brilliant. Unfortunately today, many Internet users are simply using it to “play around.” What was once a serious medium has now become a toy for millions of people. In order to understand the future of the Internet, we must understand its beginnings. The original intent of the Internet was to create a computer network that could communicate even after a nuclear attack on all major cities in the U.S.(Mayr, 1999) Instead, it grew to be a new technology that can deliver information to anyone, anywhere in the world that has access to a computer. What once took days now takes milliseconds. Is this a bad thing? Inherently, no it is not, but mankind does a wonderful job of perverting good things when they are created. Granted, I am not saying that only certain people should have access to the Internet. I just believe that people should respect the Internet because if we don t respect it, then chaos could erupt, and the government will have to step in. Sure, the Internet has many more pros than it does cons, but how long will that last? Of course, there is no one big solution that will solve all the ills created by the Internet, but that is what the legal system is for. I do not claim to have all the answers concerning the questions posed by the Internet, but I have attempted to at least offer some viable solutions and alternatives to the current methods and procedures.
On a personal note, this paper has brought me to a higher level of understanding concerning the Internet. I was one of those hundreds of thousands of people to use the Internet on a regular basis in the 1980 s, and I have learned that while technical information is a must, legal knowledge is not far behind. When I started out, it seemed like a daunting task, and I thought that I would have to answer every question out there. I later came to realize that answering all the questions was not my purpose. However, this was not only a learning experience, but an enjoyable learning experience.