SCN: Cyberlaw

[Steve]

x-no-archive: yes

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


(Carl S. Kaplan, NY Times)---Today's column is the final Cyber 
Law Journal. Of course, the legal puzzles created by the realm of 
cyberspace haven't ended. So it's appropriate that this last 
installment is about the future.  

What are the 2-3 major Internet law and policy issues that are 
likely to crop up in 2002? A group of legal mavens took up that 
challenge, and their edited predictions appear below.  

James Boyle 
Professor, Duke University Law School  

The year 2002 will see the first real chance for the Supreme Court 
to signal, through its consideration of a number of cert petitions, 
what kind of constitutional restraints, if any, it will impose on the 
new expansions of intellectual property law: the range wars of the 
Internet.  

While the most dangerous of these expansions -- the so-called 
database bill that gives property rights over unoriginal compilations 
of facts -- has not yet become law, there will be continued and 
intense pressure to pass it, with equally strong resistance from the 
science, research and civil liberties communities. If the Supreme 
Court signals some willingness to apply the First Amendment to 
intellectual property rules in a serious way, or to take seriously the 
restrictions of the Constitution's intellectual property clause, then 
the database bill will be in trouble. As a result it may be drafted in a 
less sweeping way. The converse is also true. Dismissive 
treatment from the Supreme Court will merely embolden the 
proponents of maximalist intellectual property protection. And in the 
long run, it is the property rules that will shape the Internet's future 
more thoroughly than the rules on censorship or filtering or 
taxation.  

Dan L. Burk 
Professor, University of Minnesota Law School  

First, I expect to see increasingly sophisticated attacks against the 
constitutionality of the Digital Millennium Copyright Act's anti-
circumvention provisions [which prohibit the use of, or trafficking in, 
a computer code the circumvents the encryption scheme protecting 
certain digital content]. The courts in 2001 addressed some First 
Amendment issues, but ducked the really hard question: whether 
Congress in passing the DMCA exceeded the constitutional power 
given to it under the Intellectual Property clause. The Supreme 
Court has held that Congress' power under the IP clause is limited -
- copyright cannot be extended to unoriginal or factual works, and 
patents cannot be extended to obvious inventions. But the DMCA's 
anti-circumvention rules make no differentiation between 
protectable and unprotectable material. This exceeds Congress' 
power under the IP clause.  

I expect to see lawsuits filed during the next year that put that 
question front and center, and since it is the kind of question that 
the Supreme Court has shown an interest in, I would expect that 
the Court would like to take that kind of case.  

Second, and perhaps ultimately more important to Internet law, will 
be the resolution to the negotiations on the Hague Convention on 
Jurisdiction and Foreign Judgments. This is a treaty negotiation 
that has been going on for several years; during 2000 and 2001 it 
became clear that it is likely to shape the future of international e-
commerce. The treaty deals with transborder enforcement of legal 
judgments. U.S. businesses initially pushed for this treaty, hoping 
to get more of their judgments enforced abroad, but apparently 
forgetting that it would work both ways judgments obtained in other 
countries could be enforced here. This has broad implications for, 
among other things, intellectual property, defamation, and the kind 
of situation Yahoo! got into regarding Nazi memorabilia in France.  

David Post 
Professor, Temple University Law School  

Predictions are too difficult . . . though I think you can bet on the 
following headline: "Music Iindustry Fails in Attempts to Get Users 
to Patronize Sponsored Music Services."  

Barry Steinhardt 
American Civil Liberties Union  

1. The upcoming decision of the U.S. Supreme Court in ACLU v. 
Ashcroft, which challenges the constitutionality of the Children's 
Online Protection Act -- Congress's second attempt to restrict all 
speech on the Internet to only that which is suitable for minors. 
The decision may test whether Internet speech continues to enjoy 
the highest constitutional protection.  

2. The inevitable abuses of the free speech and privacy rights of 
law-abiding Americans under the USA Patriot Act. These abuses 
will occur under a cloak of national security and it will be years 
before they come to light.  

3. The trial before a special U.S. Court in Philadelphia, which will 
test the constitutionality of the Children's Internet Protection Act, 
which forces libraries to install crude Internet filtering programs that 
will block lawful and valuable speech from their patrons -- children 
and adults alike.  

Marc Rotenberg 
Executive Director, Electronic Privacy Information Center  

1. The Hague Convention on Jurisdiction and Foreign Judgments 
will grind to a halt. The already beleaguered effort to establish 
international rules for enforcement of private judgments still faces 
strong opposition from ISPs and consumer groups.  

2. Consumer groups pressed the Federal Trade Commission in 
2001 to look closely at the privacy and security implications of 
Microsoft's Passport -- a universal log-on service. Now that the 
Department of Justice's "Let-Us-Trust" Division has taken a pass 
on the long-running lawsuit and the private litigants seem ready to 
settle, the focus could quickly shift back to the FTC. Will the FTC 
act?  

3. The copyright industry was on a roll in the past year, knocking 
out Napster and defending the Digital Millennium Copyright Act. 
Now the question is whether consumers are ready for digital 
products that track users, report to manufacturers and shut down 
when licenses expire.  

Jack Balkin 
Professor, Yale Law School  

Certainly one of the most important developments this year will be 
the continuing struggle between free speech and intellectual 
property in the courts. Civil libertarians will try to push for 
recognized First Amendment defenses against copyright and 
paracopyright. At the same time, businesses will continue to try to 
invoke the First Amendment as a defense against government 
regulation of the telecom industry.  

Although these two trends both invoke the First Amendment, they 
actually represent very different philosophies and, indeed, mutually 
opposed visions of what free speech is all about.  

Jessica Litman 
Professor, Wayne State University Law School  

Some things I'll be watching in 2002: (1) What sorts of Internet 
privacy measures, those to enhance and those to diminish or 
prevent privacy and anonymity, will be acceptable in the wake of 
the September 11 terrorist attacks, and what will fly under the 
radar using prevention of terrorism as an excuse? (2) Whether a 
variety of government and business initiatives to respond to threats 
of cyber-terrorism will advance or undermine the adoption of open 
source software as an alternative to popular and currently 
vulnerable commercial computer programs.  

Larry Lessig 
Professor, Stanford Law School  

Microsoft and Disney will become the most important allies in 
defending the core values of the Internet.  

Cass Sunstein 
Professor, University of Chicago Law School  

It's hard to predict the future. But let's look closely at (a) efforts to 
use to Internet to track terrorism and other crimes, (b) the possible 
diminution of privacy rights, and (c) efforts to censor apparently 
dangerous speech on the Internet.  

Ivan Fong 
Senior Counsel, E-Commerce and Information Technology, 
General Electric  

1. The USA Patriot Act [the anti-terrorism measure that, among 
other things, includes new rules about the government's access to 
information on the Internet] will largely survive constitutional 
challenges in the courts.  

2. The Supreme Court will strike down, on First Amendment 
grounds, those portions of the Child Pornography Prevention Act 
that effectively criminalize the generation of digital images of 
fictitious children engaged in imaginary but explicit sexual conduct. 
The high court will urge Congress to draft a narrower prohibition.  

3. Congress will pass legislation to encourage companies to share 
cyber-security data with the government, by exempting such data 
from disclosure under the Freedom of Information Act and by 
providing antitrust protection for companies that collaborate on 
cyber-security matters.  


Copyright 2002 The New York Times Company





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