and the Law

Advances in and increased use of computers and information technology raise a wide variety of political and legal issues. New activist and industry advocacy groups have sprung up to address these issues, while older groups have added new issues to their traditional concerns. Three areas that have given rise to a great deal of litigation and political activism are freedom of expression, privacy, and copyright. Many activist and advocacy groups address a wide range of issues, while others have a single-issue focus.

Freedom of expression is a concern of the American Civil Liberties Union (ACLU), and the ACLU has been a plaintiff in actions brought to determine the constitutionality of federal legislation attempting to regulate or restrict access to Internet content. The action brought by the ACLU challenging the first such Congressional attempt, the Communications Decency Act (CDA), resulted in a U.S. Supreme Court decision holding the content-restricting portions of the CDA unconstitutional (Reno v. ACLU, 521 U.S. 824). After the decision striking down the CDA, Congress enacted the Child Online Protection Act (COPA), a second attempt to regulate Internet content, which was also challenged in court by the ACLU. The Supreme Court also expressed doubts about the constitutionality of COPA, and remanded the case to a lower court for trial on the issue of whether blocking and filtering software could provide a less restrictive alternative (Ashcroft v. ACLU, 524 U.S. 656). The ACLU has also, although ultimately unsuccessfully, challenged the Children’s Internet Protection Act (American Library Association, 539 U.S. 194). In the legislative arena it has opposed the Stop Online Piracy Act (SOPA) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA), advocated net neutrality, and supported reforms to the Electronic Communications Privacy Act “to provide protection to communications such as email, private social network posts, and other information stored in ‘the cloud.’”

On copyright issues, groups can be loosely classified as either users’ rights or content owners’ rights groups. The division bears no relation to more general left-right political divisions. The division is complicated further by the ambivalent position of equipment and software manufacturers. Equipment manufacturers are naturally inclined toward the users’ rights side of the dispute; enhanced copyright controls make equipment more complicated to manufacture and thus either more expensive or less profitable, and also decrease consumer demand because of compatibility issues and because many users want to use the equipment they purchase to make copies, whether within the fair use exception or outside it. But many equipment manufacturers (e.g.,) are also content owners; there is thus an internal conflict.

Software companies suffer a similar conflict, but while the balance for most equipment makers tilts toward the users’ rights side, for software makers it tilts toward content owners’ rights. Software that allows duplication of copyrighted material will be easier to sell, but software itself is copyrighted content, and software makers have an interest in its protection.

While the ADP is a single-issue group, the Electronic Frontiers Foundation (EFF) is perhaps the best known of several advocacy groups addressing a wider array of computer and Internet law issues. Like the ADP, the EFF is alarmed by Congressional efforts to mandate copyright control mechanisms. On copyright and other intellectual property issues the EFF is a users’ rights group. Intellectual property is not the EFF’s only concern, however; its “list of issues” includes, among other topics, anonymity, biometrics, censorship, intellectual property, privacy, public records, spam, and the USA PATRIOT Act. On all of these issues the EFF takes a consistent individual rights stance. According to the EFF’s Web site, “From the Internet to the iPod, technologies are transforming our society and empowering us as speakers, citizens, creators, and consumers. When our freedoms in the networked world come under attack, the Electronic Frontier Foundation (EFF) is the first line of defense. . . . EFF fights for freedom primarily in the courts, bringing and defending lawsuits even when that means taking on the U.S. government or large corporations.” (About EFF). The EFF’s activities in pursuit of these freedoms include providing support for lawsuits, education, and reporting on proposed legislation and administrative regulations. Like many other pro-consumer and information-freedom groups, EFF was active in opposing SOPA and PIPA.

SOPA and PIPA brought back a level of public and online activism in opposition to proposed U.S. Internet-law legislation that had not been seen for several years. Among the many opponents of the proposed measures (which found few supporters outside the content industry) was the Center for Democracy and Technology (CDT). The CDT is often aligned with the EFF, although it is somewhat more moderate. The CDT’s four stated overarching goals are “preserving the unique nature of the Internet”; “enhancing freedom of expression”; “protecting privacy”; and “limiting government surveillance.” It pursues these goals through education, outreach, and legislative advice and advocacy; unlike the EFF, it does not seek to involve itself in litigation.

Public Knowledge is another users’ rights organization concerned with intellectual property law, especially copyright law. According to the organization’s mission statement, Public Knowledge has four broad goals:

(1) Ensuring that U.S. intellectual property law [provides] an incentive to creators and innovators while benefiting the public through the free flow of information and ideas.

(2) Preserving an Internet that is built upon open standards and protocols and “end-to-end” architecture, thereby fostering innovation and user control.

(3) Protecting consumers of digital technology from market practices designed to erode competition, choice and fairness.

(4) Ensuring that international intellectual property policies are adopted through democratic processes and with public interest participation (Public Knowledge Mission Statement).

Public Knowledge carries out its work through advocacy and reporting on legislation potentially affecting users’ rights. It also carries out special projects, including Empowering Creators in the Digital Age, which attempts to determine a workable balance between the need of content creators (rather than distributors) for content protection and the need of those same content creators to be able to make use of prior copyrighted works; and the Open Access Project, the goal of which is the “free and unrestricted world-wide electronic distribution of peer-reviewed journal literature coupled with free and unrestricted access to that literature by scientists, scholars, teachers, students and others” (Open Access Project).

Similar groups exist outside the United States, including the United Kingdom’s Campaign for Digital Rights (CDR). Like the EFF, the CDR is concerned with freedom of expression as well as users’ rights to fair use of copyrighted material. European Digital Rights (EDRi) focuses on copyright issues in the European Union. Other users’ rights advocacy groups in Europe include:

• Association Electronique Libre (Belgium)

• Associazione per la Liberta’ nella Comunicazione Elettronica Interattiva (Italy)

• Bits of Freedom (the Netherlands)

• Chaos Computer Club (Germany)

• Cyber-Rights & Cyber-Liberties (United Kingdom)

• Digital Rights (Denmark)

• Electronic Frontier Finland

• Elektronisk Forpost Norge (Norway)

• Förderverein Informationstechnik und Gesellschaft (Germany)

• Forum InformatikerInnen für Frieden und gesellschaftliche Verantwortung (Germany)

• Foundation for Information Policy Research (United Kingdom)

• Fronteras Electronicas España (Spain)

• Imaginons un Réseau Internet Solidaire (IRIS)(France)

• Internet Society Bulgaria

• Netzwerk Neue Medien (Germany)

• Privacy International (United Kingdom)

• Quintessenz (Austria)

• Swiss Internet User Group

• Verein für Internet-Benutzer Österreichs (Austria)

Other groups include Electronic Frontiers Australia and Electronic Frontier Canada.

Because there are many more users than there are content owners, users’ rights groups tend to be more numerous and attract a broader base of support than content owners’ rights groups. But because content is often worth money, the content owners’ rights groups tend to be much better funded. Two groups that have been particularly prominent both legislatively (proposing and lobbying for legislation to enhance copyright protection) and judicially (bringing lawsuits to enforce content owners’ rights) are the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA).

As the names imply, the MPAA is concerned with movies and the RIAA with music. While the interests of the two groups are similar, they are not identical. The MPAA’s members may currently be experiencing some lost profits due to piracy, but as long as a substantial portion of movie profits comes from box office receipts rather than video sales, the threat to their business model will remain less severe. The RIAA members’ old business model—distribution of bundled music recordings on CDs or other media through retail outlets—has been effectively undermined by technological change. Its new business model, largely based on the sale of individual songs through outlets such as iTunes and rental through subscription services such as Rhapsody, is somewhat less vulnerable, but not immune, to the effects of piracy.

Both the RIAA and the MPAA seek to protect content owners’ rights through drafting and supporting proposed legislation to enhance copyright protections, through lawsuits against copyright infringers, and through the pursuit of technological solutions.

Statutes

• Child Online Protection Act, 47 U.S.C. § 231

• Children’s Internet Protection Act, 47 U.S.C. § 254(h)

• Communications Decency Act, Pub. L. No. 104-104, § 502, 1996 U.S.S.C.A.N. (110 Stat.) 56, 133 (later codified at 47 U.S.C. § 223)

• Copyright Act of 1976, 17 U.S.C. § 101

• Digital Millennium Copyright Act, Title I, Pub. L. No. 105-304, codified at 17 U.S.C. §§ 1201-05

• Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, codified at 18 U.S.C. § 2703

• Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001, Pub. L. No. 107-56, 115 Stat. 272 (codified as amended in scattered sections of the U.S.C.)

Proposed Legislation

• Anti-Counterfeiting Trade Agreement, Oct. 1, 2011, 50 I.L.M. 243 (2011)

• Combating Online Infringement and Counterfeits Act, S. 3804, 111th Cong. (2d Sess. 2010)

• International Cyberspace and Cybersecurity Coordination Act of 2010, S. 3193, 111th Cong. (2d Sess. 2010)

• Internet Freedom Act, H.R. 96, 112th Cong. (1st Sess. 2011)

• Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property (PROTECT IP) Act (PIPA) of 2011, S. 968, 112th Cong. (1st Sess. 2011)

• Protect America Act of 2007, S. 1927, 110th Cong. (1st Sess. 2007)

• Stop Online Piracy Act, H.R. 3261, 112th Cong. (1st Sess. 2011)

Cases

Supreme Court

• Ashcroft v. American Civil Liberties Union, 524 U.S. 656 (2004)

• Brown v. Entertainment Merchants Association, 131 S. Ct. 2729 (2011)

• Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)

• United States v. American Library Association, Inc., 539 U.S. 194 (2003)

Federal Appellate Courts

• American Civil Liberties Union v. United States Department of Justice, 681 F.3d 61 (2d Cir. 2012)

• Bernstein v. United States, 176 F.3d 1132 (9th Cir. 1999); rehearing granted, opinion withdrawn, 192 F.3d 1308 (9th Cir. 1999)

• Steve Jackson Games v. United States Secret Service, 36 F.3d 457 (5th Cir. 1994)

Federal Trial Courts

• American Booksellers Foundation for Free Expression v. Coakley, No. 10-11165-RWZ, 2010 U.S. Dist. LEXIS 114750 (D. Mass. 2010)

• Gonzales v. Google, Inc., 234 F.R.D. 674 (N.D. Cal. 2006)

State Courts

• Bradburn v. North Central Regional Library District, 231 P.3d 166 (Wash. 2010)

• In re Appeal of Application for Search Warrant, No. 2010-479 (Vt. Dec. 14, 2012)

See also Budapest Open Access Initiative; Censorship; Child Online Protection Act; Children’s Internet Protection Act; Communications Decency Act; Constitutional law; Content industry; Copyright; Declaration of the Independence of Cyberspace; Digital Millennium Copyright Act; Digital Millennium Copyright Act, Title I; Fan Works; File-Sharing; First Amendment; Net Neutrality; Open Source; Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act; Privacy; Recording Industry Association of America; Stop Online Piracy Act; WikiLeaks

Sources and Further Reading