The Internet and the Law: Work in Progress

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.

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.
Apple will distribute Safari software as part of its iTunes online store that sells music, movies and other content for the company's globally popular iPod MP3 players, according to Jobs.

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.

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 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.

"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.

"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 (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 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.


By Andrew K. Burger
E-Commerce Times
07/26/07 4:00 AM PT