SCN: Cyberlaw

[Steve]

x-no-archive: yes  

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


(Carl S. Kaplan, NY Times)---What happened in cyberlaw during 
the past year that was significant and enduring -- or at least 
interesting? That's the question Cyber Law Journal put to several 
well-regarded law professors and legal practitioners.   

Their answers ran the gamut from the government's legal response 
to the Sept. 11 attacks to Hollywood's impressive victory in the 
U.S. Court of Appeals for the Second Circuit in the DeCSS 
copyright case. As in years past, the common element in the 
experts' responses seemed to be a sense that Internet law -- and 
cyberspace itself -- is still unfolding and that new battle lines are 
forming even as old conflicts are settled.   

Following are edited excerpts from e-mails written by six legal 
experts about the year's most important developments in law and 
technology.   

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

Barry Steinhardt, American Civil Liberties Union, presides over the 
A.C.L.U.'s Privacy Task Force.  

1. The passage of the ironically named "USA Patriot Act," which 
has already dramatically increased the surveillance of the Internet 
and which, by and large, removes the check and balance of 
meaningful, judicial scrutiny from the government interception of 
electronic expression.   

2. The signing of the Council of Europe's "Cybercrime Convention" 
by the U.S. and dozens of other nations, which would force the 
signatory nations (ratification by the Senate is necessary in the 
U.S.) to use draconian means to spy on their own residents -- even 
when the action being "investigated" is perfectly legal in the 
country that is required to do the spying. The U.S., through which 
most of the world's Internet traffic flows, could be turned into the 
secret computer police for nations ranging from France to Bulgaria. 

 3. Counterbalancing the Council of Europe treaty is the decision 
by U.S. District Court Judge Jeremy Fogel of California in Yahoo v. 
LICRA. Judge Fogel ruled that a French court decision censoring 
speech hosted by an American ISP could not be enforced in the 
U.S., when the speech is protected under the First Amendment.   

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

Cass Sunstein, University of Chicago Law School, author of 
"Republic.com" (Oxford University Press, 2001).  

1. The non-breakup of Microsoft.   

2. The growing belief that copyright law and the First Amendment 
are on a collision course. When some people's copyright 
protections mean that other people can't say what they want to 
say, there is going to be a constitutional issue. The issue has been 
neglected for decades. It isn't being neglected anymore.   

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

Pamela Samuelson, UC Berkeley School of Law, co-authored a 
friend-of-the-court brief attacking the DMCA in the Corley case. 
She also is a member of the Board of Directors of the Electronic 
Frontier Foundation, which represented Corley on his appeal.   

1. The "USA Patriot Act" obviously had many dimensions, but it 
included some very important new rules about the government's 
access to information about individual users on the Internet. For 
example, in authorizing the government to gather information about 
electronic mail sent or received by individuals, Congress said that 
investigators don't need to prove probable cause that the targeted 
person has committed or is about to commit a crime. The law also 
lowered the standards for surveillance of foreign nationals and 
made some computer crimes into terrorism offenses. These rules 
are not only important in themselves, but they have implications for 
other government efforts to extend regulation to the Internet.   

2. The Microsoft decision was a very important ruling in 2001, not 
so much (as it turned out) because of its effect on Microsoft (which 
is trying to settle the litigation on terms very favorable to it), but 
because of its affirmation of the continued viability of antitrust law 
in the Internet and high technology environment. It was a very well-
reasoned decision.   

3. Less noticed by the press and the public were the two DeCSS 
cases, one a California trade secrecy case [DVD-CCA v. Bunner], 
and the other the first federal appellate court ruling on the Digital 
Millennium Copyright Act's anti-circumvention rules [Universal City 
v. Reimerdes].   

The California appellate court overturned on First Amendment 
grounds a lower court ruling that someone who posted DeCSS (a 
program that bypasses the content scrambling system software 
used on DVD movie disks) had misappropriated CSS as a trade 
secret. I would have been more skeptical than the court was about 
the viability of a trade secrecy claim even against the author of 
DeCSS, let alone against subsequent posters of the information. 
But I agree that there are serious First Amendment problems with 
saying that someone who did not misappropriate a trade secret 
can be enjoined from posting the information on the Internet once 
the information has been made available.   

The Universal City Studios case was the first suit to pose a 
constitutional challenge to the DMCA anti-circumvention rules. Eric 
Corley, a journalist, posted DeCSS on his magazine's Web site as 
part of his coverage of the controversy about the program and later 
linked to sites where the code was posted. The trial and appellate 
courts both ruled that posting and linking to DeCSS were illegal 
under the DMCA. The motion picture industry won this round of the 
constitutional fight over the DMCA, but there will be other rounds, 
and I believe courts will come to appreciate the constitutional 
deficiencies of the DMCA, even if they didn't in the Corley case.   

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

Charles S. Sims, Proskauer Rose, successfully represented eight 
Hollywood studios in their lawsuit against Web publisher Eric 
Corley for his posting of (and linking to) a DVD-cracking code 
prohibited under the Digital Millennium Copyright Act.   

You won't be surprised that, in my view, one of the most notable 
copyright developments was the firm rejection by the judicial 
branch, the executive branch, and the Copyright Office of the 
endlessly repeated arguments against the Digital Millennium 
Copyright Act by the Electronic Frontier Foundation and its allies.   

The Second Circuit's recent refutation of those arguments in the 
University City Studios case, the Justice Department's strong 
defense of the law in the DMCA and Sklyarov cases, Skylarov's 
agreement to testify against his employer in a DMCA criminal 
prosecution, Judge Garrett Brown's recognition that Princeton 
Professor Ed Felton had not been stifled by the DMCA, the 
Register of Copyright's announcement that the EFF had failed to 
back up its arguments with any evidence whatever and [Second 
Circuit] Judge Jon. O. Newman's characterization of the EFF's 
position as "extravagant" -- all those mean that the DMCA is safe, 
a recognized and stable part of U.S. intellectual property law, and 
a fact of life that hackers and pirates will have to contend with.   

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

Ivan Fong, senior counsel at General Electric Corporation, the 
company's chief e-commerce and privacy lawyer.   

Into the obvious category I would put (1) the refusal of a California 
federal district court to enforce a French court order requiring 
Yahoo to prevent French residents from viewing Nazi memorabilia 
from its auction site, thereby stemming (for now at least) an 
unfortunate trend in which several countries are attempting to 
assert extraterritorial jurisdiction over Internet content; (2) the 
decision by the U.S. Court of Appeals for the Ninth Circuit to enjoin 
Napster's online music-swapping functionality which perhaps 
marked one of those rare moments when the public (apart from 
lawyers) suddenly realized that intellectual property rights 
sometimes do matter; and (3) Barnesand Noble.com's victory over 
Amazon.com in an appeal of Amazon's claim that Barnes & Noble 
infringed on Amazon's one-click shopping patent, thereby bringing 
a ray of commonsense into the otherwise murky world of business-
method patents.   

Into the not-so-obvious category, I would place the increasing 
number of cases addressing electronic privacy issues in the 
workplace. This is an important issue that affects nearly everyone 
who works, and it erupted in an unusual way this summer when a 
contingent of federal judges refused to implement a proposal by 
the policy-making arm of the federal judiciary to monitor workplace 
electronic communications.   

Also worth noting were the cases that dismissed claims brought 
against companies such as DoubleClick and others for their use of 
"cookies," small files that a Web site operator can use to (among 
other things) recognize users when they return to the site. Last 
year around this time, many businesses were concerned that these 
cases would lead to a wave of litigation over the use of cookies -- 
those fears now appear to have dissipated (though in Europe strict 
restrictions on the use of cookies have been proposed).   

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

Ian Ballon Manatt, Phelps & Phillips, the author of "E-Commerce 
and Internet Law" (Glasser LegalWorks 2001).  

1. The Ninth Circuit's Napster decision and the reassertion of 
traditional copyright law in cyberspace (the moment the lights 
came back on after the power failure).   

2. I was struck by news reports that Osama bin Laden was using 
steganography to encode messages to terrorists on publicly-
accessible Web sites.   

3. First Amendment issues arise much more frequently in the area 
of e-commerce than in the traditional commercial world because a 
Web site, in addition to constituting a storefront, is a form of 
publication and a forum for speech. The decision by the U.S. Court 
of Appeals for the Second Circuit in the Corley DeCSS case was 
one of the most significant opinions of the year.   

In two weeks, a similar group of experts will look into their crystal 
balls for 2002.   


Copyright 2001 The New York Times Company  






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