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: