Internet Law
Drexel University, Odia Kagan, Spring 2012,
Raymond S. R Ku and Jacqueline D. Lipton, Cyberspace Law Cases and Materials, 3rd Edition
Differences between internet communication and regular communication:
– More control/filter on words before speaking
– Anonymity/ freer?
– Breaking and entering in real world involves broken glass, etc/hacking can be done in PJ’s
– Always be a record
– No human interaction
– More complicated/ More intermediaries
o (You > Pay Cashier vs. You > ISP > Google > Website > Pay > Shipper)
– Tracking / Usage of your data (ex. Recommendations/Advertising/Targeted Marketing)
The internet is at once a world-wide broadcasting capability, a mechanism for information dissemination, and a medium for collaboration and interaction between individuals and their computers without regard for geographic location
– Barry M. Leiner et. Al “A Brief History of the Internet”
Timeline:
1961 – Leonard Kleinrock
– First paper on packet-switching theory
1962 – JCR Licklider, DARPA
– The “Galactic Network”
1965 – First Wide Area Network
1967 – Plan for ARPANET published
1969 – First host to host message sent
1969 – Four computers connected to ARPANET
1972 – First public introduction of ARPANET
1972 – Introduction of e-mail
1972 – First version of TCP/IP introduced
1973 – Ethernet technology
– Bob Metcalfe at Xerox PARC
– DNS (Paul Mockapetris of USC/ISI) [Translates Amazon.com into IP address 111.111.1.1]
1983 – Transition of ARPANET to TCP/IP
1985 – Internet established and used in scientific community
Early 1980’s – internet opened to commercial activity
1990 – launch of HTTP and the World Wide Web (Tim Berners Lee)
1994 – Launch of Mosaic browser
1995 – definition of the term “internet”
Principles in the operation of the internet:
– Packets travel in the fastest route possible
– Communication is on a “best effort basis” (if it fails it tries again)
– Communication through “gateways”, “routers”, and “switches”
– Gateways transfer on “first come, first serve” basis
– No centralized control
– “open source”
Characteristics
Legal Significance
Origin in scientific collaboration
Rejection of legal enforcement; preference of self regulation
Open network structure
No central control; difficult to track/monitor content
Not designed for one application but rather as a general structure
Networked all over the world
Boundary less; no significance to jurisdictional borders; applicable law
Transmission in Packets, redundancy, and re-routing
Easier to copy existing works; collaborative spirit leads to creation of new works that transcend existing copyright laws
Allowing all users access to time sharing systems
Encouragement of sharing resources (copyright; file-sharing)
Free accessibility to documentation
Objection to limitation on access – links, access to information, DRM
Regulation:
· Why?
o Should the internet be regulated?
o Is it the “information superhighway” or the “electronic frontier”?
§ Information Superhighway = rules, police, laws, order, limits
§ Electronic Frontier = free, no rules, wild west
o Cyber Libertarians
§ Freedom of speech
§ No government interference in the operation of the net
§ The net will regulate itself
§ Maximize individual liberty
o Declaration of Independence in Cyberspace (John Perry Barlow)
§ Objection to Government Regulation:
· “Governments of the industrial world, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”
§ Traditional Government regulation inappropriate:
· “I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.”
§ The internet will self-regulate:
· “Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the contradictions of our world, not yours. Our world is different.”
§ Johnson & Post:
Out: Traditional Regulation
In: cyberlaw
In view of its unique structure the internet cannot be regulated by traditional regulation
Borders are computer screens and passwords
The internet disrupts traditional concepts of sovereignty
Cyberlaw developed in accordance with the market and internet users
Decentralized, develop
Power is asserted in accordance with location
Indifferent to physical location
– Speed of transmission
– Physical machine can move
Borders serve as signposts
Signpost function is irrelevant
Control flow of goods
Difficult to control flow (if you want to participate in global commerce)
o Cyber Paternalists
§ The internet can and should be regulated
§ The internet does not destroy existing state sovereignty
§ Joel Reidenberg: Regulation may be indirect, in a way that affects the structure of the internet
· Two tier structure: like the EU or the US Federal system
§ Lawrence Lessig: Law of the Horse
· External regulation is necessary to ensure the structure of the internet
o The Structure of the internet may serve to regulate it but it is not static and is subject to change.
o The structure of the internet may limit the effectiveness of existing laws (e.g. file sharing)
· How?
o Multi-lateral approach
§ Regulation through International bodies
§ E.g. WIPO, OECD, on e-commerce, EU directives
o Unilateral approach
§ Regulation by each state
§ E.g. CAN-SPAM
o Self-Regulation
§ Ground-up by the industry
§ E.g. Netiquette, DRM, initiative on advertising
o MISSING SLIDE
· What?
o “If the Internet stumbles, it will not be because we lack for technology, vision, or motivation. It will be because we cannot set a direction and march collectively into the future”
o Existing laws are sufficient
§ Internet law is the law of the Horse (Easterbrook)
· The internet is not such a singular phenomenon that it needs its own law. (e.g. law of torts vs. law of the car)
§ The technology may be different, but people are the same
§ Letting technology define the law will lead to “bad law”
o Sommer:
§ It doesn’t make sense to define law by technology
· Law is based on society
§
t change.
– Actions together constituted purposeful availment
o Encouraging users to add addresses to a mailing list for updates constitutes active solicitation
o Conscious choice to process PA residents’ applications and assign them passwords
o Could choose to sever connection to PA by not selling to PA residents
ALS Scan – tried to sue infringer but didn’t succeed so they sued the ISP because they enabled the infringement
– A state may not obtain general jurisdiction over out-of-state persons who regularly and systematically transmit electronic signals into the state via the internet
– Jurisdiction may be imposed over a person outside the state if the person:
o Directs electronic activity into the state
o With manifested intent of engaging in business/action within the state
o The activity creates, in a person within the state, a potential cause of action
– Applying Calder v. Jones (effects theory)
Purposeful Contacts Test:
– Interactivity of a website is only one relevant factor in determining online jurisdiction (Instabook v. Instapublisher.com)
– Some other factors:
o Website hits from forum residents
o Placement of cookies on computers in the forum
o Transmission of orders for products or services ordered over the internet by forum residents
o Acceptance or processing or payments from forum residents
o Number of participants in the forum
o Newsgroup or newsletter accessible in the forum
o Hyperlinks to other websites from the forum
o Where are the venders/tradeshows
Purposeful Contacts Test
– Interactivity of a website is only one relevant factor in determining online jurisdiction (Instabook v. Instapublisher.com)
– Some other factors:
o Website hits from forum residents
o Placement of cookies on computers in the forum
o Transmission of orders for products or services ordered over the internet by forum residents
o Acceptance or processing of payments from forum residents
Illinois v. Hemi Group
– Zippo’s sliding scale is just short-hand for determining whether a defendant had established sufficient minimum contacts with a forum
Torts: The Effects Theory (Bochan v. La Fontaine)
– Calder v. Jones tests:
o Defendant committed an intentional tort
o Which created harm in the forum
o The harm was expressly aimed at the forum
– Applying the test
o There was defamation
o Posts were accessed in VA
o Tabloid knew that the reputational harm would be primarily suffered in VA
Forum Selection and Choice of Law (Caspi)
– Forum selection clauses are prima facie valid and enforceable in NJ.
– Exceptions:
