SCN: Cyberlaw

[Steve]

x-no-archive: yes

========================== 

(Carl S. Kaplan, NY Times)---Continuing a venerable three-year-old 
holiday tradition, Cyber Law Journal asked a variety of Internet legal 
mavens to weigh in with their nominations for the most significant or 
interesting cyberlaw developments in the year almost past. Here are 
some of their edited responses.  

Jack Balkin, Knight Professor of Constitutional Law and the First 
Amendment and director of the Information Society Project at Yale 
Law School:  

There were many significant cyberlaw stories this year, but here are 
three with important consequences for free expression.  

1. Battles over intellectual property continued to rage. We saw court 
struggles over peer-to-peer file sharing technologies like Napster 
and reverse engineering as in the DeCSS litigation. The latter led to 
new controversies about whether courts can ban people from even 
linking to sites that might violate intellectual property law. 
Trademark battles proliferated and the patent space became 
increasingly clogged. It's becoming increasingly clear that freedom 
of speech and intellectual property are on a collision course.  

2. In France, a court ordered Yahoo to block access to Nazi 
paraphernalia from web sites available to French citizens. France's 
objections to the memorabilia were ideological, based on its 
longstanding hate-crime laws. The Yahoo controversy starkly raises 
important questions about freedom of speech and globalization: 
How will the Internet coexist with different countries' different 
standards of free expression? What, if anything, can or will 
countries do to block speech that they don't like?  

3. Finally, just as the year ended, Congress quietly tucked a First 
Amendment bomb inside an appropriations bill. It requires that 
public schools and libraries must install blocking software or lose 
federal funds. This looks like it will be one of the big First 
Amendment struggles of the next year.  

Lawrence Lessig, Professor of Law at Stanford Law School, 
columnist for The Industry Standard and author of "Code, and Other 
Laws of Cyberspace" (Basic Books):

1. The conditions imposed by the federal government on the 
America Online/Time Warner merger.  

2. The conclusions of law drawn by Judge Jackson in the Microsoft 
antitrust case.  

3. That Bill Gates saw that there was a reason for antitrust law to 
monitor the Internet economy (i.e., the telephone call from Bill Gates 
to the FCC to complain about the power of AOL's Instant Messaging 
service).  

Jessica Litman, Professor of Law at Wayne State University, editor 
of Web site "New Developments in Cyberspace Law" :

In my view, the most important development was probably the rise 
of Napster. In a little over a year, a huge number of people have 
downloaded Napster software and used Napster to download music 
files. The last running count I read put the worldwide total at 44 
million. When one considers that fewer than 49 million people voted 
for George W. Bush, that's a staggering number.  

In addition, the lawsuits filed by record companies, music 
publishers and artists against Napster drew almost unprecedented 
attention for what was, after all, a copyright infringement suit. With 
that many members of the public paying attention, the conversation 
about digital copyright law finally moved beyond a simplistic 
characterization of copyright as a vehicle protecting creative artists 
from pirates, and the mainstream press found ways to explain what 
had been considered esoteric concepts to a broad reading public.  

The year 2000 also saw the resolution (for now) of the dispute 
between the European Union and the United States over information 
privacy. The European Union favors strong personal data privacy 
rights, and had adopted a directive prohibiting member nations from 
transferring personal data to countries that don't offer comparable 
protection. The United States government, in contrast, favors a 
relatively unfettered market in personal data. Europe threatened to 
cut off the data stream to the U.S.; Congress refused to enact a data 
privacy law. Ultimately, Europe blinked and agreed to pretend that 
the U.S. proposal for industry self-regulation would offer adequate 
protection to Europeans' personal data.  

Barry Steinhardt, Associate Director and chair of the ACLU's cyber-
liberties task force:

One nominee has to be the decisions in Melvin v. Doe and Dendrite 
v. Doe, two ACLU cases brought on behalf of anonymous Internet 
speakers who were victims of "cyberslapp" suits -- the filing of 
defamation actions for the purpose of forcing the disclosure of the 
speaker's identity. In recognition of a right that goes back to the 
heroes of the American Revolution, two different courts protected the 
right to speak anonymously by ruling that a plaintiff can't force the 
disclosure of the identity of their online critic merely by filing a libel 
case. The courts held that before the unmasking process can be 
triggered, a plaintiff must show that there is a reasonable possibility 
he will prevail at trial.  

David G. Post, Associate Professor of Law at Temple University Law 
School, co-founder and co-director of the Cyberspace Law Institute 
and columnist for the American Lawyer:

1. I suppose United States v. Microsoft Corporation has to be on the 
list -- though I don't really have anything useful to say about that 
(other than noting that if the U.S. Court of Appeals for the D.C. Circuit 
can just manage to hold the case for another year or so without 
issuing a judgment, the controversy will be a lot closer to being 
irrelevant than it is today).  

2. A & M Records Inc. v. Napster Inc. The Napster controversy is 
extremely important and interesting on any number of levels. Peer-
to-peer is a perfect illustration of how powerful real "networking" 
technologies can be. No copyright law that is completely out of touch 
with what people feel is reasonable can survive for too long. Our 
kids ultimately do get to write copyright law, and something tells me 
they'll choose to live under a scheme that permits sharing.  

3. Universal City Studios Inc. et al. v. Reimerdes (part of the DeCSS 
litigation). Fascinating case. The first case showing how serious the 
anti-circumvention provisions of the Digital Millennium Copyright Act 
might be. Judge Kaplan's opinion also confirms some of the worst 
fears of the anti-DMCA crowd that the concept of fair use will not 
protect decrypters. Question: If software is speech, why isn't an 
injunction prohibiting the distribution of DeCSS code an 
unconstitutional prior restraint?  

Pamela Samuelson, Professor of Law and Information Management 
and director of the Center for Law and Technology at the University 
of California at Berkeley:

1. The Napster case (not even an imaginative law professor could 
have dreamed this one up). Not just for itself, but also on account of 
its potential impact on the ability of copyright owners to exercise 
control over information technologies and potentially the 
architecture of the Internet. Obviously much depends on what the 
Ninth Circuit does on the appeal -- which may be one of the most 
significant events of next year, if the court doesn't rule in the next 
week or so.  

2. The eBay v. Bidder's Edge case. Trespass to chattel is a very old 
legal doctrine that has gotten a whole new life in cyberspace. No 
one likes spam and so when this doctrine was used to challenge 
spam sent to Compuserve and AOL subscribers, there wasn't much 
of a fuss. But if the Ninth Circuit doesn't put some limits on this law, 
comparison pricing sites on the Internet may well become illegal.  

Eben Moglen, Professor of Law & Legal History at Columbia Law 
School and general counsel for the Free Software Foundation:

No question that this year's most important development was the 
breakup remedy in Microsoft.  

The next most important developments all concerned lawsuits 
posing conflicts between freedom of speech in the making of 
software vs. the intellectual property rights of content distributors. 
The MP3.com and Napster cases, for example, showed that 
proprietary distribution of music can only be sustained by the 
elimination of new distribution technologies. The settlements 
represent (far too little too late) the music industry's decision to try 
joining rather than beating a force they in fact cannot control at all.  

The third most important development was the DeCSS cases, which  
posed even more clearly, thanks to Judge Lewis Kaplan's 
unprecedented first amendment analysis, just how much free 
speech would have to go to the wall if the Disneyfication of the world 
were allowed to proceed to its desired technical end: a leak-proof 
pipe from production studio to consumer's eyeball, in which no 
computer is ever allowed to be under the control of its user, in case 
the user should decide to give some content away.  

Copyright 2000 The New York Times Company





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