Wednesday, September 27, 2006

The new (and growing) digital divide

A lot of work has been done about and a lot of attention has been given to the gap between those who have access and those who don't have access to information technologies, based on levels of income of the individuals and/or different levels of development of the countries they belong to. However, with the constant growth in broadband usage in developed countries and the resulting increase in the use of video-rich and flash or Macromedia based contents and the advent of the so-called Internet 2.0, a new digital divide is in the rise: the gap between those who can hear and see, and those who don't have that capacity. With the "original" text based Internet, most people who had access to it could see it, read it or have a software reading it for them, but with videos or even sound based content, the software that reads pages ignores the content and those with a hearing impairment cannot know what the video (or the person in the video) is talking about. In addition of the obvious social consequences of exclusion of those with different capacities, there are legal ones, since many countries have in place legislation to ensure that disabled people have access to most of the services that non-disabled people would have.
Having a flashy website could seem nice but...

Sunday, September 24, 2006

The problems (impossibility?) of surfing on two waves

The promotional website of Mylo, under communication, makes reference to the possibility of exploring your friend’s device and “view music play lists and stream selected music files on your device”, and to add even more controversy to the allegiance of Sony to the principles of copyright law, it is two links away from a Sony website that teaches how to rip music from “records, cassettes, eight-tracks, and other formats” so you can listen it on a portable device. So, isn’t Sony part of the RIAA that says that ripping music for your portable devices is not fair use?
It is not the first time that the dual capacity of Sony, as a producer of technology that enables copyright infringement and as media owner and producer, has make it to contradict its won goals, or pursue a line with one arm that the other arm is trying to stop. The storm of the already infamous rootkit circled around privacy and spyware issues, to then turn into a copyright violation one, but, probably because the consequences could have been far more dearer for Sony, the violation to the anti circumvention measures that the sneaking of the rootkit implied were mostly overlooked. The rootkit modified the CD driver so to not allow making illegal copies of Sony CDs but, if your CD driver already had a technological protection measure the Sony rootkit would be circumventing it, making DMCA to kick in (legislation that was promoted, between others, by RIAA).
In 1984, when it was only a technology company, Sony set the standard of what companies could do without being liable for secondary infringement (do you remember the Sony Betamax case?), but after becoming a content owner and producer has been participating in almost all actions against owner and promoters of new technologies that allow copyright infringement (as for example party in MGM Studios et al. v. Grokster et al; yes Sony was part of the first et al.). Now, the problem is that after MGM v Grokster, where the US Supreme Court ruled that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties", both the advertisement of Mylo and other Sony's websites would not pass the test and should be found liable of inducement...
So, the Sony dilemma is about what is the main market in the future: technology innovation or content ownership? If the later is the answer, Sony may well keep defending the extreme version of copyright protection with its pals of RIAA and MPAA, but if the future lies on being in the edge of technology development Sony will have to break ranks with the content owners by showing that the current IP system does not encourage innovation and, at least in the US, runs afoul with the constitutional requirement of promoting “the Progress of Science and useful Arts”...

Friday, September 22, 2006

Welcome to the future

Sony has presented its new gadget, Mylo (My Life Online), which is bound to make a big dent in iPods and many other portable devices that are around. But of course, every new device comes with a barrage of questions about the legality of some of its features. Mylo is supposed to allow other Mylo users to check what music you have in yours, but it is not clear if it will allow for sharing it. The advertisement makes a point about this last issue, so in case of sharing being possible the second part of the Grokster test may apply...
I don't have clear if you can also use it as a normal mobile phone...

Owning the world

The best quasi science fiction video of what may be coming!

Working for who pays the bills

The recent speech by Thomas Barnett, Assistant Attorney General for the Antitrust Division of the U.S. Department of Justice, shows once again who the people in Washington are working for. There are plenty of places that show how the whole business of government has been prostituted to serve a handful of business groups that finance the election campaigns of both parties, but that a member of the U.S. Department of Justice, which has as stated purpose "[t]o enforce the law and defend the interests of the United States according to the law;... and to ensure fair and impartial administration of justice for all Americans", uses a public forum to defend the not easily defensible position of a company that he should be investigating might become the poster-child of promiscuos relations between corporations and government.
In that talk, given at the George Mason University School of Law Symposium Managing Antitrust Issues in a Global Marketplace, Mr Barnett used different arguments to attack certain legal developments outside the US that seek to curtail Apple's abuse of its dominant position in the mobile music and video market. It first laid out the economic theoretical background by using Schumpeter's characterisation of static and dynamic efficiency (efficiency based on doing the same thing but better and efficiency based on doing something new that takes the place of the old thing) and mixing it with competition and innovation to say that protecting innovation is protecting competion, to then conclude that stronger IP protection helps competition (have you heard that before. Is like encouraging sexual relations to promote virginity!). Then, the talk used examples of industries where IP and innovation helped to create excellence in the US: telephone, phonograph, light bulbs, lasers, computers, television, and pharmaceutical; it is interesting but some of these industries are between the most regulated in the world and US has not been consistent in respecting other countries' IP on them. But the substance of the speech was to defend Apple (or attack any pretension of regulating it).
It is not the first time that happens, but it is interesting to hear (actually read) again, from the mouth of a member of the US Government, the fallacious argument that the music industry lost billions due to "piracy". There is no evidence that every download displaced a legitimate purchase and the facts speak by themselvesf: in September of 2003 the RIAA filled 261 lawsuits against egregious file swappers, and one of them was Brianna LaHara, a a 12-year-old honors student who lives in a New York City Housing Authority apartment. Can anyone in its right mind think that that girl could afford to buy legally the more than 1,000 songs that she downloaded? Well, those thounsands of songs are counted as part of the music industry losses and the American government is repeating it! But the real issue was not about the music industry (but it served to show how serious and unbiased the US government analysis was): it was about the wrong-guided that the attacks on Apple were.
Apple seems to need protection from the “assault in a number of jurisdictions on the ground that iTunes is too dominant and does not “interoperate” with devices other than iPods”. The assault, Mr Barnett goes on, are based on four theories, which are rebutted by the government representative.

Theory one: consumers are locked into buying songs only from the iTunes service and they would have to pay too high a price for iTunes songs.
Mr Barnett’s rebuttal: “consumers can upload other formats to (CD-Roms and MP3 files)” to iPods (is he suggesting that is OK to infringe copyright by downloading into iPods your CD’s music?) and “while it is true that Apple’s DRM software ensures that the first recording of a song downloaded from iTunes can only play on an Apple device, consumers can re-record an iTunes song in an MP3 format and play it on other devices”. (What about the anti circumvention provisions of the DMCA?) Finally, Apple has fended off music industry’s attempt to raise prices, so that’s good for consumers…is it? The current price of 79p in UK, 99c in Ireland and 99c in the US does not reflect either the cost of delivering nor the taxation schemes of different countries. They just represent a profiteering scheme where Apple gets an alleged more than 50% of what consumers pay (so after deducting what the music industry gets you can imagine how much the actual artist receives, but that is for the third theory)

Theory two: “Apple is selling songs on the cheap but devices on the dear and consumers […] are locked into buying the same expensive devices in the future”. DOJ’s man rebuttal: “Apple’s model is the opposite: consumers buy the expensive iPod device first, then have the option- not the obligation- to use the free iTunes software and buy cheap iTunes songs”. The problem with that line of reasoning is that if you want to follow the law, buying from iTunes is not an option (the famous interoperability we were talking about before), and the songs are not cheap.

Theory three: “information wants to be free”. Mr Barnett’s rebuttal: “creators want to be paid”. But again, if artists usually get 4.5p per song, which are sold at 79p, clearly the overused line about the poor creator that needs to be paid has become more an insult to intelligence and good taste than an argument for defending stringent IP laws. It seems that the law doesn’t need to protect the creators AND Apple+music industry; it needs to protect creators FROM Apple+music industry.

Theory four: “Apple may not be hurting consumers, but it is hurting competitors”. Mr Barnett’s rebuttal: “Antitrust law protects competition, not competitors”. The first problem with this rebuttal is that Apple might well be hurting consumers, and it is more than suspicious that a member of the Antitrust Division of the US Department of Justice has chosen to “misinterpret” and misuse Brooke Group Ltd. v Brown & Williamson Tobacco Corp., where the US Supreme Court was dealing with a “conscious parallelism among oligopolists” and not with a company like Apple that has more than 80% of market share.

And then, to put the cherry on the top of the cake (was that the expression?) Mr Barnett said “if government is too willing to step in as a regulator, rivals will devote their resources to legal challenges rather than business innovation”. Was he joking? The whole IP system has been modified to benefit IP owners so they don’t care anymore about innovation and instead use a lot of resources to use their IP rights strategically in courts of law; and Apple represents some of the most egregious examples (do you remember the lawsuits of Apple against creative Labs?)
The funny side is that if an official of the equivalent of the Department of Justice of any developing country says something that goes half the way that Mr Barnett has gone, the US Deparment of State would be calling for an end of corruption, stopping the intervention in judicial matters and respect for the rule of law...

Do no evil?

There is no much discussion about the good thing that Google is for everyday's life and it is very difficult to imagine our modern life without Google. So, lets start making something very clear: Google is a great thing (this blog is provided and hosted for free by Google and most of the links are normally found using Google). But, is it still the case that the company believes the number 6 of the 10 things that has found to be true? It seems that after going public the pressures of keeping its market value rising have make a dent on Google's philosophy of doing no evil. Regardless how much spin is put around it, to try to justify censoring China's Google by saying that by doing that you are actually allowing many Chinese people to access more information is simple difficult to sustain (it looks like the market was too big for not doing some evil, what could be confirmed by the way Google snatched Dr Lee from Microsoft and offered him an unprecedented extremely generous compensation package). Then, the issue of Google library project, in which it seemed that the original ideal was to engage in a massive exercise of copyright infringement; the copyright infringement of the thumbnails of Perfect 10; the copyright infringement lawsuit from AFP; the strange arrangement with AP (which had everyone guessing due to its confidentiality); and now the problems with the Belgian court. But again, it is possible to argue that for being so innovative Google is forcing the discussion about a clear definition of fair use (although that is a concept foreign to most continental European copyright laws). Can be argued that reproducing a part of a work that could lead to the original one is not copyright infringement (as Google does and claims)? Or, on the contrary, the function of a search engine is to point to the information without showing it and, by displaying part (in the case of images it could be a substantial part) of the information there is a clear copyright violation (in some instances the information provided in the Google summary is more than the user is looking for so there is no need to go to the original? Courts are not being consistent, again, but it would be good to imagine Google as the champion of the fair use and freedom of use of information...until you remember that is the same company that threatens people who use its name as a verb...
Probaly -do no evil- sounded nice for a couple of grad students who created the most amazing tool for finding and retrieving information but has no place in the world of a mega corporation willing to own the world...

Friday, September 15, 2006

GikII 2.04

The workshop finalised with a session on Cultural Property & IT Law (2): My Game, My Rules. The fire was opened by Nicholas Gervassis with “When James T. Kirk met Buffy: Legal Facts and Fan Fiction”, where he explored what happens when devoted fans of movies, TV series or comic books go beyond the realm of exchanging views and opinions about their sphere of liking and start modifying the original work to create something that might be categorized as derivative work. Some of these fans take extreme liberties over the limits where they can push the engaged themes to, and usually without the original creator’s consent, which opens the flanks to attacks on fan-fiction due to lack of respect of the artistic integrity of legally protected materials, among others copyright violations.
Jordan Hatcher followed with “Law, Anime and Fansubs” and examined the anime industry in depth to see how the fansubs might help to achieve ripeness, broad the consumer base and increase the value of the anime’s market in certain societies, resulting in a situation where the potential damage that the anime industry could suffer due to translation and distribution of works by fans is outweighed by far by the benefits that the industry gets out of the copyright violation. It went further into analysing different instances where the industry engaged and dealt with the phenomenon, not always in the same manner (click here for Jordan's full paper).
The presentations ended in a not very glorious manner with my “The Moral Rights of the Morally Wrong: International Issues on the Commercialisation and Protection of Pornographic Japanese Manga”. The presentation first tried to explain the relation of Japanese culture and Japanese people with nudity and erotism and the historic origins of Japanese pornographic manga. It then went into how Western influence helped to shape the current Japanese manga scenario and output and the problems presented when through the posting of pornographic materials in Internet issues of copyright and obscenity arise. The problem becomes particularly acute in some regions of United States where due to the criminalisation of copyright infringement (proposed and imposed around the world by the same United States) the public resources of communities that abhor the idea of pornography of any kind might need to be used to defend the interests of those that produce pornography with a great degree of perversion (which because of being “virtual” with no real persons involved it was deemed to be protected free speech even in the case of “virtual” teen pornography).

GikII ended with a plenary session where the idea of making it an annual event was made explicit and Lilian also talked about the possibility of publishing the papers as a book. Then, to clarify what Internet is about, everyone enjoyed an example of what we were talking about.

And here is the octopus (which is an old piece of Japanese erotic art, not pornography)

GikII 2.03

After lunch, the scholars/lawyers/geeks took again their places around the table in the moot court room and then Caroline Wilson opened the session on Privacy, Identity and Code with “Online and Offline Identity: Introducing the Janus Hypothesis”. There Caroline went into using scientific and social evidence from an array of fields of knowledge to show that the online/offline context of socialization during a person’s formative years determines personal concepts of identity and the delineation of the private and public self, giving to some people greater propensity in sharing what we might call their private information. Should the law intervene to protect the privacy of a generation accustomed to be exposed? Should the self regulation be allowed knowing that we might be in front of a generation that will allow invasion to its privacy, in some cases guaranteed by law, because cannot distinguish between private/public or appreciate the importance of be left alone?
David Vaile, not showing signs of the sure tiredness due to his long trip from Australia, followed comparing the current proposal for a new Australian identity card with the previous one. The analysis was quite detailed into different aspects of both schemes and it left in the air the sensation that regardless the change of name and some minor modifications we (today we are all Australians) were facing the same old wine in a new bottle or as the Latin American (or was Spanish?) saying says, “aunque la mona se vista de seda, mona queda” (Even if the monkey dresses in silk, stays a monkey).
That part of the workshop finished with Thomas Otter and the not-fairy tale “Data Protection: The Cinderella of the software industry. The explanation revolved around the issue of software makers incorporating into code regulations decided (or to be decided) by law. In a probably reverse situation (or following its natural consequence) to regulation by code in absence of regulation by law (yes, I am talking about Lessig), Thomas analysed how industries, especially the software industry, sometimes imbed into the technology they produce the existing regulations so their product or service only delivers results that are compliant with the law. However, he observed that the software industry has failed to incorporate into code data protection principles, which make data protection the battered sister of the issues that could/should be regulated by code. As others said that day, I also think that Thomas PhD idea has a lot of potential...

Thursday, September 14, 2006

GikII 2.02

The second part of the second day started with Burkhard Shafer talk on whether the "“de minimis"” principle stands in the way of effective regulation, through his "“De minima non cura lex - an obstacle for Internet governance?" There the issue of what happens when a difference in degree within a certain class is so big that might give place to a new class, as it would be an innumerable quantity of legal acts becoming illegal due to the excessive number of them been performed at the same time. When those type of situations may seem only theoretical, the existence of Internet as a large number of interconnected networks with an always increasing number of computers connected to them create the conditions for such situations become reality. For example, the argument was made that the idea of having a server connected to an open network is to be accessed by as many people/users as possible and there is a whole science dedicated to study how to increase the number of hits on a given website. However, when a substantial number of connections is made at the same time, and usually coordinated, we might face a situation where the server stops responding to the access requests, or Denial of Service, DoS. Is a DoS attack really a misuse of a computer? Or defenseence of being doing what the server was designed for, accessing it, can/should work?
Richard Jones made a presentation on "“Spies, Slaves and Cyborgs: the technologies, architectures and cultural meanings of electronic 'tags'"”, in which criminology seemed to meet Blade Runner at the highest academic level. The talk was both entertaining and insightful, and showed to many of us that there are far many more things in the interaction of technology, law and regulation to human behavior that electronic commerce and IP.
The session ended with the thoughtful presentation of Ray Corrigan who using the application of the second law of thermodynamics to economic processes explained that the widely accepted assumption that information is non-rivalrous might not be necessary correct. His talk "“The Second Law and Rivalrous Digital Information (Or Maxwell'’s Demon in an Information Age)"” focused on the fact that once it is digitised the storage and/or transmission of information needs access to energy, and with the current and future energy situation the information's non-rivalry might well be a myth.

Thursday, September 07, 2006

GikII 2.01

After the first day and a nice dinner, GikII entered into its second and last day, and the sense that GikII was becoming a future reference point for the edges of Cyberlaw and a likely annual event was in the ambient.
The morning started with Judith Rauhofer’s “Defence against the Dark Arts: How the British Response to the Terrorist Threat is Parodied in J K Rowling’s “Harry Potter and the Half Blood Prince”. Not being a Harry Potter specialist (I’ve seen the movies but never read a book!), but having followed the comments about the books on the press, I found more than very interesting her analysis and I was nicely surprised by her study, which walks on the boundaries of socio-legal studies and literature and law. She put forward the idea that one of the reasons for the success of Harry Potter within the adult readers is the similarities between his fantastic world and recent historical and political developments. Then, she moved into explaining with very precise detail the analogies to be found in Rowling’s book 6 and the UK’s situation involving the threat of terrorism and the government activities in surveillance, detention without trial and national identity cards, to finish with the question made within the book (in different words) about whether the measure taken to protect society’s values don’t actually threat to destroy the same values they were designed to protect.
The second participant/speaker/geek was Andrew Adams, who considered the likehood of society becoming more prone to be surveillance-states as in dystopian science fiction works “From 1984 to V for Vendetta via Minority Report”. Societies are becoming more and more risk intolerant to certain kind of risk, which can lead to the expansion of actuarial approaches to justice. Can we, will we tolerate a “Big Brother” state? As in the previous talk, aren’t we/they putting forward a system that would/is/will destroy(ing) the same society that purports to defend? How we avoid it? More regulation? Self regulation? Technological resistance?
To end that session Andres Guadamuz spoke about “Killer Robots, Evil Scientists and Other Tales of Woe: How Technophobia in Culture Affects the Law”. There Andres suggested that the wrong way in which law and policy deal with technology can be informed by the fact that we live in a technofobic society and that technophobia has been created and/or reinforced by science fiction. What probably is more interesting is that those who write or make films encouraging technofobic views associate state control/bad with technology, and non-technology or more mechanical-based technology with freedom/good. The issue/contradiction is that those software or IT producers that could lead to the worst case scenario of IT controlled control-state are those who claim that lack of regulation makes us freer when it can be argued that the opposite is true and the way to avoid a control-state is by controlling the technology first, via regulation.

GikII 1.02

The coffee break was followed by the session on Copyright and the Openness Ethic in the Information Society, where Adriaan de Groot frightened the masses with his "“Open Source Killer Robots". His talk was illustrated with examples of robots, in science fiction, that due to some malfunction transformed into killer robots. The extrapolation of that to real reality and having a parallel with software in general resulted in the conclusion that having access to the source of the computer program running the robot and the source of software in general, should/would minimize the possibility of bugs that will transform a house-helper robot into a killer one. What will be the responsibility of the software programmer in case that the robot becomes a killer robot? What if the robot is using open source software? The possibility of placing liability on the software programmer/software producer (commercial ones, especially M$) was almost discarded by the subsequent discussion, mainly due to the complex nature of software, but today, looking for a parallel with an airplane (very complex machine too), where in case of failure due to a mistake in the manufacturing process the manufacturer will have at least shared liability, I am not sure that the complexity argument should be allowed to survive much longer. Clearly there is a need for further studies on the emergence of airplane industry, its liability and insurance issue compared to the situation of the software.
The session finished with Roger Burton-West explaining the work, functioning and future developments in BAILII. The idea of BAILII of reversing the trend towards the assassination of deep-linking was clearly presented and the means of doing it too. The possibility of sharing the platform to create others LII looks more than very important and we will engage in some conversations with them and AustLII, who started it all, to create LatinLII or LatLIII or LALII.

GikII 1.01

The GikII Workshop started with a session on Virtual Property and Virtual Governance, where the first shot was fired by Lilian Edwards and her "Constructing Virtual Properties: What Do Avatars, Feedback and Exploits Have in Common?". There she made a very insightful analysis of the increasing use of virtual realities for entertainment, interaction and also trade. Taking into account that there are more and more people that spend more and more time having part of their life in a world created solely by digital interaction and within those virtual worlds these people get some type of reputation, which allows them to increase the level of participation, is that reputation a property that can be traded or defended? Can you sell your eBay feedback to somebody that just arrived into the "community"? Can you transfer your reputation to other platform? What about your reputation when the owner of the platform decides to take you out of the game/virtual world/auction site? The topic is not ripe yet, but clearly will represent one of those that will give to cyberlawyers a lot to think about in the near future.
Lilian was followed by Gillian Black, who spoke about "“The Evolution of Property"”, and analyzed the question of -what is property? - from a quasi-utilitarian point of view, by saying that the concept should be understood as a social and legal instrument to protect society'’s interests and needs. The scrutinized the commercial exploitation of the persona, especially in Cyberspace, to look for the answer to the question of the ontology and law of property, and she made very valid points about taking property as a dynamic concept that evolves (or should evolve) with society and technology.
The third speaker of the day was Abbe Brown, who presented a paper titled "“Must Worlds Collide? Real and Virtual Property Worlds", where she explained the changes brought by Internet and the legal implications of the creation of virtual worlds. She addressed several questions mainly related to the interaction of real and virtual property and the relation between the possible virtual legal world and the current existing legal systems tied to geographical boundaries. Will the future bring agreements between virtual and real legal systems? Will we be able to enforce in the real world's courts what we, or our identities in avatars, have agreed in Cyberspace?
The first session finished with the presentation by Nic Suzor, who used his not very strong Australian accent to talk about "Governance in Virtual Worlds"”. Nic considered the theoretical basis for legitimate domination in virtual worlds. Since virtual worlds are based on commercial platforms, through their user agreements these companies exercise their domination as some sort of "“benign dictators". Can consensual governance be achieved in virtual worlds? Will they be feasible or legal? The other issue relevant to this topic is the interaction between real-world governments with the above-mentioned potential virtual ones. The issue of legitimacy, legality and enforcement permeates all these on-the-edge questions.
The first session ended and the sensation that something different and unique had started was in the air...

Wednesday, September 06, 2006

GikII Worshop

We are already in the first day of the VI World Computer Law Conference and we can have some reflections on the GikII that took place Monday and Tuesday, also here in Edinburgh.
It was a delighting experience to have such an impressive group of geek/lawyers and geek/computer specialists discussing about the frontiers of the law applied to cyberspace. In the words of Professor Lilian Edwards, "GikII proposes to be the place where these worlds, institutions and players will come together for the first time at a major law and technology conference. We want to discuss whether geek law exists. If you have a paper burning for the oxygen of publicity on any aspect of law AND technology, science, geek culture, blogs, popular culture, wikis, science fiction or fantasy, computer games, digital culture, gender on-line, MMORPGS, virtual property or online human personae, then this is the workshop for you. The more blue skies, the more wacky races, the more ragged bleeding edge, the less clichéd, the more challenging and contra-intuitive, the more we want it."
I hope that tonight I finally will have time to write a summary about it!

Tuesday, September 05, 2006

On the edge of Cyberlaw

We are in the second day of the GikII Workshop, held at the University of Edinburgh Law School's moot court room, and the presentations have been at the very edge of cyberlaw. The quality of the presenters have been excellent and the topics more than current (or future) and entertaining. Tonight I will try to make a summary about the whole workshop, but I really wish you were here

Monday, September 04, 2006

VI Computer Law World Conference

From tomorrow (actually today in few hours) I will be attending the VI Computer Law World Conference in Edinburgh, organized by Alfa-Redi and the AHRC Research Centre for studies in Intellectual Property and Technology Law, located in the School of Law at the University of Edinburgh. So my next postings will be with a kilt, some single malt and no cigars...

Saturday, September 02, 2006

Still no light in Internet jurisdiction

The recent US Court of Appeals for the Ninth Circuit’s ruling in Pebble Beach v. Caddy, holding that the U.S. District Court lacks personal jurisdiction over a citizen and resident of the United Kingdom (UK) who operates a passive website that a U.S. claimant (plaintiff in US terminology) asserts infringes and dilutes its trademark rights, is a new development that might seem to follow the sliding scale established in Zippo v. Zippo and further clarify the issue of assertion of personal jurisdiction over a defendant using a website, but when coupled with other recent cases reaffirms the need for the US Supreme Court to intervene in the matter. The case, where the Court of Appeal concluded that the defendant did not satisfy the test established in Calder v Jones (expressly aiming the conduct at the forum) seems to contradict Luv N' Care v. Insta Mix, an also very recent case where the US Court of Appeals for the Fifth Circuit borrowed the stream commerce theory from product liability law to find that a district court of Louisiana had personal jurisdiction over a Colorado defendant who also did not expressly aim his conduct at the forum. It might be argued that this later case does not relate to Internet (it was a copyright infringement, trademark dilution and unfair competition under the Lanham Act suit over a bottle cap) but if the stream of commerce theory can be borrowed in that case, nothing would pre-empt the use in Internet personal jurisdiction situations, and the issue is whether expressly aiming the conduct at the forum is relevant or not. Needless to say that there is no contradiction with the same court (9th Circuit) ruling in Panavision v Toeppen, where the defendant was cyber squatting with the express intent to extract money from the claimant by selling its domain name for which the claimant had a valid trademark.
The 9th Circuit Court said that it had no doubt that there was a requirement “that 'something more' than just a foreseeable effect to conclude that personal jurisdiction is proper” and that “an internet domain name and passive website alone are not 'something more' and, therefore, alone are not enough to subject a party to jurisdiction,” to then conclude that the defendant did not purposefully aim his actions at California. This seems in accordance with ALS Scan v. Digital Services Consultants but contradicts Gorman v. Ameritrade, where the US Court of Appeal for the District of Columbia Circuit found that personal jurisdiction based on a website could exist and said that cyberspace "is not some mystical incantation capable of warding off the jurisdiction of courts built from bricks and mortar."
The uncertainty seems to extend to defamation cases, where the 9th Circuit court held in Northwest Healthcare Alliance v. (unpublished) that the District Court has personal jurisdiction over an out-of-state defendant in a defamation case, based solely upon its publication of the allegedly defamatory statements in its "passive" internet web site, situation that seems to mirror the High Court of Australia’s decision in Dow Jones v. Gutnick, saying that because of publication on the Internet, the Australian courts have jurisdiction, that Australian law applies, and that the case should proceed in the trial court in the Australian state of Victoria. However, these decisions don’t suit very well with the US Court of Appeals for the Fourth Circuit opinion in Young v. New Haven Advocate, where it said that that a court in Virginia did not have jurisdiction over defendants located in Connecticut, who wrote allegedly defamatory stories about a Virginia claimant and published them on the Internet.
In Carefirst Maryland v. CPC the 4th Circuit court found that the district court did not have personal jurisdiction based on the operation of a website, but in v. L.L.Bean the 9th Circuit court found that it did have based on the same operation of a website, which added to MGM v Grokster where the US District Court of the Central District of California found that making software available for download justified personal jurisdiction

We could actually have a blog specialized in jurisdiction cases and probably most of them will contradict each other even when the opinion is given by the same court. The only way to stop this madness and the creativity of Court of Appeal’s judges when they have to justify their own contradictions will be for the US Supreme Court to finally give certiorari for one of these cases and tell us what is the law of the land.

Friday, September 01, 2006

Privacy and free speech concerns of the Convention on Cybercrime

In the beginning of August 2006 the US Senate ratified unanimously and without amendment the "Council of Europe Convention on Cybercrime", which obliges the countries that are parties to it to enact laws related to computer related crimes. The treaty also requires the parties to pass various laws related to criminal procedure, search and seizure, electronic intercepts, and data retention, that will largely add to governmental powers, which are not limited to investigation and prosecution in cybercrime cases and will apply to other criminal offences performed by the use of computers and to the collection of digital evidence, regardless the type of crime, according to its article 14.2 b and c.
But probably the most contentious features of the convention are that it requires almost automatic mutual assistance, and has no dual criminality provision, which means that a party will be obligated to compel search and seizure, data retention, and intercept assistance from a domestic service provider, at the demand of a foreign government, when the related activity is a crime in that foreign country, but legal in the requested party. For example, it will be interesting to see the reaction of the courts when a European party requests compliance with the treaty by the US when prosecuting a person accused of using a computer to disseminate hate speech that is constitutionally protected free speech in the U.S.
If the Convention is to be properly enforced, it seems that the U.S. government assertion that the convention is in full accord with all U.S. constitutional protections, such as free speech and other civil liberties and will not require the U.S. to change any of its laws does not stand the minimum analysis. However, there were some groups that found the passage of the law an occasion to celebrate. Both the Business Software Alliance and the Information Technology Association of America rejoiced and praised the SenateÂ’s approval, and probably it had a lot to do with article 10 of the Convention, which includes protection to intellectual property rights.
Parts of the treaty have been criticized by the Center for Democracy and Technology, the Electronic Privacy Information Center, and the American Civil Liberties Union for its language regarding data retention, intercepts, search and seizure and government surveillance, arguing that the treaty harms privacy rights by creating invasive investigative techniques withoutt providing privacy and civil liberties safeguards, and specifically lacking judicial review and probable cause determinations required under the US Constitution Fourth Amendment. This becomes of crucial importance after the ACLU v NSA decision of a couple of weeks ago.