C
C
CABLE
Broadband Internet access can be provided to homes and businesses over special lines dedicated to the purpose, or more cheaply over existing telephone or cable television lines, or wirelessly via cell phone or satellite networks. For home users, the cost of a dedicated broadband line other than a telephone or cable connection is almost always too high to be worthwhile. At present, though, telephone and cable television companies compete for the home broadband market. To date the cable television industry has proved more adept at reaching and exploiting this market.
Cable lines, like telephone lines, are owned by a relatively small number of companies. Typically, homes will have access to the lines of only one cable company and one telephone company; the use of these lines for broadband Internet access provides these companies with a potential monopoly, or at least a potential local duopoly, on the provision of broadband access. Telephone companies have been compelled to allow other broadband service providers access to their lines. Local governments have attempted to impose similar requirements on cable broadband providers as a condition of granting a cable franchise. However, in 2000, the Court of Appeals for the Ninth Circuit held, in AT&T Corporation v. City of Portland, that the Federal Communications Commission (FCC) acted properly in classifying cable broadband service as not a “cable service” within the meaning of the Communications Act, and thus not subject to regulation by local governments through their franchising authority (AT&T, 216 F.3d 871).
The FCC subsequently classified cable broadband services as information services and not cable services or telecommunications services. Three years later, a divided three-judge panel of the same court, in three separate opinions, vacated that part of the FCC’s ruling stating that cable modem services were not also telecommunications services; the court felt itself to be bound by its earlier decision (Brand X, 345 F.3d at 1132). Two years later, in 2005, the Supreme Court rejected the Ninth Circuit’s reasoning in Brand X, holding that “the Commission’s construction was reasonable” (National Cable & Telecommunications Association, 545 U.S. at 1000) and stating:
[T]he Federal Communications Commission concluded that cable companies that sell broadband Internet service do not provide ‘telecommunications servic[e]’ as the Communications Act defines that term, and hence are exempt from mandatory common-carrier regulation under Title II. We must decide whether that conclusion is a lawful construction of the Communications Act. . . . We hold that it is” (National Cable & Telecommunications Association, 545 U.S. at 973–74).
This leaves open the possibility of future rulemaking changes on the part of the FCC.
Statute
• Telecommunications Act of 1996, 47 U.S.C. §§ 151 et seq. (1996)
Cases
• AT&T Corp. v. City of Portland, 216 F.3d 871 (9th Cir. 2000)
• Brand X Internet Services v. FCC, 345 F.3d 1120 (9th Cir. 2003), reversed and remanded sub nom, National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005)
See also Broadband; Federal Communications Commission; Internet; Net Neutrality
Sources and Further Reading
Note, “How Chevron Step One Limits Permissible Agency Interpretations: Brand X and the FCC’s Broadband Reclassification,” 124 Harvard Law Review 1016 (2011)
Mark Robichaux, Cable Cowboy: John Malone and the Rise of the Modern Cable Business (New York: John Wiley & Sons, 2002)
Steven Semeraro, “The Antitrust-Telecom Connection,” 40 San Diego Law Review 555 (2003)
Roderick W. Smith, Broadband Internet Connections: A User’s Guide to DSL and Cable (Boston, MA: Addison-Wesley Publishing Company, 2002)
Phil Weiser, “Paradigm Changes in Telecommunications Regulation,” 71 University of Colorado Law Review 819 (2000)
Tim Wu, “Network Neutrality, Broadband Discrimination,” 2 Journal on Telecommunications & High Technology Law 141 (2003)
CAN-SPAM ACT
See Spam
CELL PHONE
See Mobile Device
CENSORSHIP
Censorship is the act or process of inspecting expressive content, such as books, movies, recorded music, or Web pages, and deleting or restricting access to material deemed offensive by the person or organization doing the inspection. The Internet provides new problems for censorship because of its international nature, the ease with which it provides children as well as adults with access to information, the widespread availability of encryption technology, and the quantity of information exchanged. The law of the United States and of the individual states, in accordance with the First and Fourteenth Amendments to the U.S. Constitution, severely restricts the censorship powers of governments.
State action
The First Amendment protects against censorship by the government and not ordinarily against censorship by private parties; state action, rather than private action, is the target of the Amendment. It is perfectly legal, for instance, for a private Internet Service Provider (ISP) such as America Online to block certain mass-mailed email messages even if it would be impermissible for the government to do so; America Online’s action is not state action (America Online, 948 F. Supp. 456).
Three distinct tests are used in determining whether acts by private parties can be classified as state action for First Amendment purposes: the exclusive public function test, the state-assisted action test, and the joint participant test. The exclusive public function test looks at whether the private entity has exercised powers that are traditionally the exclusive prerogative of the state. The state-assisted action test looks at whether the private entity has acted with the help of, or in concert with, state officials. The joint participant test looks at whether the state has insinuated itself so far into a position of interdependence with the private entity that the state must be recognized as a joint participant in the challenged activity. If the answer to any one of these three questions is “yes,” there is state action (America Online, 948 F. Supp. 456).
Strict scrutiny for broad content-based prohibitions
Governments or state actors may impose broad content-based restrictions upon expression only in certain narrowly defined situations; most such restrictions are subject to strict constitutional scrutiny. Governments may impose such restrictions when doing so is necessary to achieve a compelling state interest. This interest must be unrelated to the message being communicated; in other words, a government’s interest in preventing a message from being heard is not in itself a sufficient basis for restricting that message. The means chosen to restrict the expression must also be the least restrictive alternative available (Reno v. ACLU, 521 U.S. 844).
Less-scrutinized restrictions
Noncontent-based restrictions on the time, place, and manner in which expression is permitted must be narrowly tailored to further an important or significant government interest; such restrictions are generally constitutionally permissible unless they unduly constrict the flow of free speech.
Certain types of content-based restrictions are likely to be constitutionally permissible. Governments may prohibit expression such as shouting “Fire!” in a crowded theater, as well as speech that is intended to create a likelihood of imminent violence. Speech or expression may form an element of certain crimes—conspiracy and solicitation, for example—and thus may be prohibited. Defamation and invasion of privacy may be prohibited or made the basis for civil liability, although the scope of this exception is limited when public figures or public officials are involved. The right to duplicate and distribute the expressions of others may be limited by intellectual property rights, particularly copyright. And obscenity, discussed in more detail under the subheading “Pornography” later and in the section of this encyclopedia titled “Obscenity,” may be prohibited (Miller, 413 U.S. 15).
Broadcast media are traditionally entitled to a lower level of protection than print media, because of the government’s role in allocating broadcast frequencies and the limited number of such frequencies available. Courts have held, however, that the Internet is not a broadcast medium and is thus entitled to the highest level of First Amendment protection (Reno v. ACLU, 521 U.S. 844). Commercial speech (speech that proposes a commercial transaction) is afforded protection under the First Amendment, although it may be subject to time, place, and manner restrictions, and may be prohibited if it is untruthful, misleading, or deceptive, or if its subject matter or presentation is illegal.
Special problems for the Internet
The two categories of online speech that have been the subject of the greatest number of private and governmental attempts at censorship are pornography and mass email advertising. Free speech that may undermine copyright protections, such as the publishing of encryption/decryption code, is also an Internet-related problem.
Pornography
The term “pornography” covers a variety of sexually explicit material, some of it protected by the First Amendment and some, including child pornography and obscenity, not protected. Although the First Amendment’s protection does not extend to obscenity, the term “obscenity” is difficult to define. After wrestling with the problem for some time, the Supreme Court in Miller v. California set down the definition that is generally used in U.S. law. Under the Miller test, material is obscene if (1) “the average person, applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest”; (2) “the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and” (3) “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value” (413 U.S. 39).
Child pornography involving images of actual children is banned even if it does not meet all three prongs of the Miller test, because it is a record of the actual sexual abuse of children and the government has a compelling interest in preventing such abuse (Ferber, 458 U.S. 747).
Material that is not obscenity or child pornography may not be banned outright merely on the basis of indecency or offensiveness; much pornographic material is thus protected. The extent to which access to pornographic material may be restricted or controlled has been the subject of much Congressional activity and subsequent litigation.
Access by minors
It is permissible for governments to control minors’ access to some material that is permissible for adults. In the pre-Internet era, the access of minors to sexually explicit material could be controlled at the point of sale, by verifying the age of the purchaser. On the Internet it is impossible to determine the age of any user with certainty; any child who can read can access any portion of the Internet accessible to adults. The U.S. legal system has not yet found an effective way to deal with this problem. Statutes enacted by Congress to restrict the access of minors to some Internet content, such as the Child Online Protection Act and the Communications Decency Act of 1996, have been struck down by the Supreme Court on constitutional grounds. Among other flaws, they impermissibly restricted the access of adults to information (Reno v. ACLU, 521 U.S. 844).
Software solutions
In the absence of an effective legal solution to the problem of the accessibility of Internet pornography to minors, market-based solutions have emerged. Many filtering programs are available. While the constitutionality of the use of these programs by schools and public libraries has been heavily litigated and has not yet been resolved with any degree of finality, filtering programs can be and are used on home computers. However, such programs are a less than perfect solution for several reasons. They tend to miss some sites, especially foreign-language sites, containing content that the purchasers of the programs would undoubtedly deem offensive. They also err in the other direction, and screen many sites with innocuous content. Finally, they rely to a great degree on the willingness of the child using the computer to comply with the restrictions. Many children are more technologically adept than their parents and can circumvent the programs if they are determined to do so. Even if they are unable to do so, they have the option of using another computer.
International communication
From a U.S. perspective, the international nature of the Internet presents two distinct censorship problems. One is that content that is illegal under U.S. law or the law of a state or local government within the United States may be legal in a foreign country. There is no practical way for a local government to restrict its inhabitants’ access to the illegal content (see Reno v. ACLU, 521 U.S. at 878 n. 45). It would be difficult for the national government to do so, and such restriction would probably require the blocking of all or most content from that foreign country; this in turn presents constitutional problems because it restricts the access of persons in the United States to nonprohibited information. In addition, other countries that have tried such draconian measures have found them to be of only limited effectiveness; clever users easily find ways to circumvent the controls. A second problem is that content that is legal in the United States—the advertising for sale of Nazi memorabilia, for example—might be illegal in another country, such as France. U.S. Web publishers may thus unwittingly violate the laws of other countries, risking civil sanctions and even criminal prosecution (Yahoo!, 169 F. Supp. 2d 1181). This possibility was demonstrated in 2012 when Google Brazil president Fabio Jose Silva Coelho was imprisoned for refusing to take down a YouTube video after a Brazilian court ruled that it slandered a political candidate; Mr. Coelho was released only after he agreed to take down the offending video (Google Brazil 2012). The video would most likely have been protected political speech under U.S. law, just as Mr. Silva Coelho argued, ultimately unsuccessfully, that it was under Brazilian law. Although in this case the defendant was a Brazilian living and working in Brazil (albeit for a U.S. employer), there is no reason to suspect the Brazilian court’s decision would have been different had he been a U.S. citizen, or a citizen of any other country, residing outside Brazil. (The eventual outcome, of course, might have been different, as the court would then have had less leverage to force Google to take down the video.) The actual criminal convictions (even though later overturned on appeal) of three non-Italian-resident Google executives in Italy in 2010, based on the content of a YouTube video posted in Italy by Italian citizens, demonstrates the potential for laws controlling content to cross national borders (Hill 2012).
Encryption
The widespread availability of encryption technology poses additional problems. Users can exchange encrypted files over the Internet; even if the communication is being monitored, those monitoring it will have no means to determine whether the encrypted file contains illegal obscene materials, legal but highly confidential corporate secrets, or a collection of recipes. Although breaking the encryption is usually possible, it is time consuming and thus expensive.
Too much information
Finally, the sheer volume of information exchanged on the Internet makes universal monitoring impossible, and thus censorship is a hit-or-miss affair. To some extent this also is being addressed with software, which can be instructed to search for particular types of content. But any time savings gained through the use of such software is offset by the use of encryption.
The state of Internet censorship today
At this point, serious attempts to censor the Internet are focused on a few areas: governments aggressively pursue and prosecute child pornographers and consumers of child pornography (see 18 U.S.C. §§ 2251–2260); the wider campaign against pornography as a whole, though, must be regarded as lost, or at least abandoned for the time being. In response to consumer outrage, governments are now, as Internet service providers have been doing for some time, taking actions to restrict the activities of spammers (bulk email advertisers). And speech that creates a private right of action, such as defamation, invasion of privacy, the commercial appropriation of one’s name or likeness, or infringement of an intellectual property right, may be the subject of lawsuits brought by the individuals affected.
Statutes
• Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003, 15 U.S.C. §§ 7701–7713
• Child Online Protection Act, 47 U.S.C. § 231
• Child Pornography Prevention Act of 1996, 18 U.S.C. §§ 2251–2260
• Children’s Internet Protection Act, 47 U.S.C. § 254(h)
• Communications Decency Act of 1996, 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)
Cases
Supreme Court
• Ashcroft v. American Civil Liberties Union, 524 U.S. 656 (2004)
• Brandenburg v. Ohio, 395 U.S. 444 (1969)
• Miller v. California, 413 U.S. 15 (1973)
• New York v. Ferber, 458 U.S. 747 (1982)
• 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
• Yahoo!, Inc. v. La Ligue Contre le Racisme et L’Antisemitisme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001), reversed and remanded, Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 379 F.3d 1120 (9th Cir. 2004), rehearing, 433 F.3d 1199 (9th Cir. 2006)
Federal Trial Courts
• America Online v. Cyber Promotions, 948 F. Supp. 456 (E.D. Pa. 1996)
• Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 2 F. Supp. 2d 783 (E.D. Va. 1998)
See also Activism and Advocacy Groups; App; Child Online Protection Act; Child Pornography; Children’s Internet Protection Act; Communications Decency Act; Data Haven; Declaration of Independence of Cyberspace; DeCSS; Defamation; Encryption; First Amendment; French Yahoo! Case; Indecency; Jurisdiction; Obscenity; Pornography; Spam; .xxx
Sources and Further Reading
Jessica E. Bauml, “It’s a Mad, Mad Internet: Globalization and the Challenges Presented by Internet Censorship,” 63 Federal Communications Law Journal 697 (2011)
Giles Castonguay, “Court Quashes Convictions in Google Video Case,” Wall Street Journal (December 21, 2012), available at http://online.wsj.com/article/SB10001424127887324461604578193093685872724
.html
“Google Brazil to Take Down Controversial Brazil Video,” BBC News (September 28, 2012), available at http://www.bbc.co.uk/news/world-latin-america-19753158
Terry Gillespie, “Virtual Violence? Pornography and Violence against Women on the Internet,” in Women, Violence and Strategies for Action, edited by Jill Radford et al. (Buckingham, UK: Open University Press, 2000)
Mike Godwin, Cyber Rights: Defending Free Speech in the Digital Age (Cambridge, MA: MIT Press, 2003)
Kashmir Hill, “The Downside of Being a Google Executive,” Forbes (September 27, 2012), available at http://www.forbes.com/sites/kashmirhill/2012/09/27/the-downside-of-being-a-google-executive/
“Internet Freedom: Free to Choose,” The Economist, October 6, 2012, at 70
Tim Jordan, Cyberpower: The Culture and Politics of Cyberspace and the Internet (New York: Routledge, 1999)
Kathryn Kolbert & Zak Mettger, eds., Justice Talking: Censoring the Web: Leading Advocates Debate Today’s Most Controversial Issues (New York: The New Press, 2002)
Lawrence Lessig, The Future of Ideas (New York: Random House, 2001)
Saul Levmore & Martha C. Nussbaum, eds., The Offensive Internet: Speech, Privacy, and Reputation (Cambridge, MA: Harvard University Press, 2012)
Jeremy Lipschultz, Broadcast and Internet Indecency: Defining Free Speech (New York: Routledge, 2007)
Eli Pariser, The Filter Bubble: What the Internet Is Hiding from You (New York: Penguin Press, 2011)
Kevin W. Saunders, Saving Our Children from the First Amendment (New York: New York University Press, 2003)
Madeleine Schachter, Law of Internet Speech (Durham, NC: Carolina Academic Press, 3d ed. 2008)
Bob Sullivan, “Do-Not-Spam List Won’t Work, FTC Says,” MSNBC (June 15, 2004) available at http://www.msnbc.msn.com/id/5216554/ns/technology_and_science-security/t/do-not-spam-list-wont-work-ftc-says/#.UAecOpF2r08
“National Differences: The World Is What You Make It—Every Country Has Its Own Internet,” The Economist, Special Report: Technology and Geography, October 27, 2012, at 20
CERTIFICATE
Digital certificates can be used to establish the identity of persons doing business over the Internet. The certificate is issued by a trusted third party known as a certification authority, and includes the name of the party to whom it is issued along with a serial number, an expiration date, and the party’s public encryption key and digital signature. Digital certificates commonly use some form of the X.509 standard; because the standard is informal rather than formally defined and approved, different implementations of the standard may differ. The simplest way for companies to avoid difficulties in verifying certificates is to use a third-party verification authority such as VeriSign, Inc. (Mosuch & Hillson 2004, § 3.13).
Digital certificates can be used for a variety of purposes. They can enable secured communications through a virtual private network by identifying persons eligible to use the network. They can verify the identity of buyers and sellers in a transaction in which the parties never meet face to face. They can be used to determine eligibility to view particular content on a Web site, in order to screen the content from certain persons or to ensure that access is limited to authorized persons; these might be persons who have paid a subscription fee, or who work for a particular company, or who are working on a particular project. The Child Online Protection Act of 1998 envisioned the use of digital certificates verifying a user’s age as one means to shield children from online pornography (47 U.S.C. § 231(c)(1)(B)).
Statute
• Child Online Protection Act, 47 U.S.C. § 231(c)(1)(B)
See also Child Online Protection Act; Encryption
Sources and Further Reading
Richard Adhikari, “Hacker Exploits a Loophole to Score Free App Goodies,” MacNewsWorld (July 14, 2012), available at http://www.macnewsworld.com/story/75637.html
Andrew Couts, “U.S. Gov’t Seizes 70 More Websites for Copyright Infringement—Not the Digital Kind,” Digital Trends (July 12, 2012), available at http://www.digitaltrends.com/web/u-s-govt-seizes-70-more-websites-for-copyright-infringement-not-the-digital-kind/
Frank Mosuch & Susan B. Hillson, “Technical Security Measures,” in Data Security and Privacy Law: Combating Cyberthreats, edited by Kevin P. Cronin & Ronald N. Weikers (St. Paul, MN: West, 2004)
Robert Westervelt, “Microsoft Revokes Additional Digital Certificates due to Encryption Weakness,” SearchSecurity (July 11, 2012), available at http://searchsecurity.techtarget.com/news/2240159440/Microsoft-revokes-additional-digital-certificates-due-to-encryption-weakness
CHILD ONLINE PROTECTION ACT
Following the Supreme Court’s 1997 decision striking down the Communications Decency Act (CDA), Congress made a second attempt to regulate the availability of indecent material to minors with the 1998 Child Online Protection Act (COPA). COPA attempted to address the specific constitutional concerns raised by the Supreme Court when it struck down the CDA. COPA imposed penalties on anyone who “knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, ma[de] any communication for commercial purposes that [was] available to any minor and that include[d] any material that [was] harmful to minors” (47 U.S.C. § 231(a)(1)). COPA included a three-part test for determining whether the material was harmful to minors. Material was harmful if and only if all three of the following requirements were met:
(a) The “average person, applying contemporary community standards, would find” that the material taken as a whole, with respect to minors, was designed to appeal or pander to the prurient interest;
(b) The material depicted, described, or represented, “in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and”
(c) The material, taken as a whole, lacked “serious literary, artistic, political, or scientific value for minors” (47 U.S.C. § 231(e)(6)).
Unlike the CDA’s definition, struck down in Reno v. American Civil Liberties Union, COPA’s definition closely tracked the definition of obscenity set out by the Supreme Court in the 1973 case of Miller v. California. Under the Miller test, determining whether material is obscene requires the trier of fact to determine:
(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest . . . ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (413 U.S. at 39).
The first prong of the COPA definition was essentially identical to the first prong of the Miller test, with the exceptions of the addition of the words “with respect to minors” and the qualification that the average person must find that the work is designed to appeal or pander to the prurient interest, rather than merely that it does appeal to the prurient interest.
The second prong still differed in one major respect: While Miller refers to applicable state law for its definitions of the types of conduct whose depiction is prohibited, COPA attempted to establish its own definition, and this definition extended beyond the depiction of sexual conduct.
The third prong of the COPA definition, other than the addition of the words “for minors,” was identical to the third prong of the Miller test.
Like the CDA, COPA provided safe harbors for Web publishers and Internet service providers (ISPs). Under COPA, ISPs were not liable for material merely passing through their systems. And Web publishers were not liable under COPA if they restricted access by minors through the use of a “credit card, debit account, adult access code, adult personal identification number, . . . a digital certificate that verifies age, . . . or by any other reasonable measures that are feasible under available technology” (47 U.S.C. § 231(c)(1)). Inevitably, some minors would be able to circumvent these measures, but COPA insulated complying Web publishers from liability nonetheless.
COPA was immediately challenged by First Amendment advocates; the American Civil Liberties Union (ACLU) and others brought suit in the federal district court for the Eastern District of Pennsylvania to enjoin (prevent) enforcement of COPA. The district court granted the request for an injunction, reasoning that the ACLU had shown that their attack on the constitutionality of COPA was likely to succeed on the merits; in other words, the District Court ordered that COPA not be enforced pending a decision on its constitutionality.
After the grant of the injunction, the government appealed the case to the U.S. Court of Appeals for the Third Circuit, which decided in June 2000 that the District Court had acted correctly in issuing the preliminary injunction. In its opinion, the Circuit Court focused on the problem of applying “community standards” to the World Wide Web, as it existed at that time. In 2000, the architecture of the Web rendered it impossible for a Web publisher to know where, in the real world, the viewer of the published material was located. In contrast, providers of printed pornographic material, pornographic cable television programs, and sexually explicit telephone messages knew where the materials were being sent; they could choose not to send or transmit them to certain communities if the content would violate the standards of those communities. At the time it was difficult or impossible for Web publishers to restrict access to their published content on the basis of geography; the content was published to the whole world or not at all.
Thus, to apply “community standards” to Web content would have required each Web publisher to tailor the content to the standards of the least broad-minded community. The parties conceded that the “contemporary community standards” prong was inapplicable to communities outside the United States, so that there was no need to consider, as the Circuit Court put it, “the more liberal community standards of Amsterdam or the more restrictive community standards of Tehran.” Even within the United States, however, there is a wide range of community standards; enforcement of COPA would have had the effect of allowing America’s most puritanical community to determine what was the acceptable Web content for the entire population of the United States. (This anomalous result was also produced by the current law governing obscenity generally, but in an Internet context, when every person connected to the Internet was potentially connected to all communities simultaneously, the problem became even more pronounced.)
As so often happens when courts and lawmakers address the Internet, technological developments may render this reasoning obsolete. It is already commonplace for Web site owners to restrict content based on the country in which the recipient is located. While such geographic filtering is imperfect—some users will not be screened and sophisticated users can fool the screening software or otherwise gain access to the content—it successfully blocks most users in a given country. Restricting by state or city within a country might be somewhat more difficult, but the technical problem is not insurmountable. The more difficult problem would lie in determining the standards of each of these communities, and constantly updating filtering software to take these no doubt everchanging standards into account.
The Third Circuit’s decision had the interesting effect of granting a higher degree of First Amendment protection to Web content than is enjoyed by print content. It also raised, by implication, an obvious problem with Congressional attempts to censor the Web: It is as easy to publish content outside the United States as within its borders, and as easy to access foreign content from within the borders of the United States as to access domestic content. There is little Congress can do to regulate what is published outside the United States, and little it can do to regulate the access of persons within the United States to foreign Web sites, short of unconstitutionally heavy-handed intervention.
The Third Circuit’s decision was not the last word on COPA. In May 2001, the U.S. Supreme Court granted certiorari (a writ directing a lower court to deliver the record in a case for review by a higher court, and the mechanism by which a majority of cases come to the Supreme Court) to review the Third Circuit’s decision (ACLU v. Reno, 217 F.3d 162).
In 2002, the Supreme Court, in Ashcroft v. American Civil Liberties Union, vacated (nullified) the decisions of the Third Circuit and the Eastern District of Pennsylvania enjoining enforcement of COPA. The Court held that the reference to “contemporary community standards” did not in and of itself render COPA facially unconstitutional. A three-justice plurality, with five justices concurring in the result, stated “community standards need not be defined by reference to a precise geographic area,” adding that a
publisher’s burden does not change simply because it decides to distribute its material to every community in the Nation. . . . Nor does it change because the publisher may wish to speak only to those in a ‘community where avant garde culture is the norm,’ . . . but nonetheless utilizes a medium that transmits its speech from coast to coast. If a publisher wishes for its material to be judged only by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities (Ashcroft v. ACLU, 535 U.S. at 583).
In other words, COPA might well have the effect of limiting expression on the Web in accordance with the standard of the most puritanical community, but to do so was not unconstitutional.
The Supreme Court remanded (sent back) the case to the Third Circuit for further proceedings. On remand, the Third Circuit held that the plaintiffs had established a substantial likelihood of prevailing on their claim that COPA was not narrowly tailored to achieve a compelling government interest, and that they had also established a substantial likelihood of prevailing on their claim that COPA was unconstitutionally overbroad.
As a restraint on expression in a unique nonbroadcast medium, COPA is subject to strict scrutiny, the highest level of constitutional scrutiny. In order to withstand strict scrutiny, a law or other government action must
(1) serve a compelling governmental interest;
(2) be narrowly tailored to achieve that interest; and
(3) be the least restrictive means of advancing that interest.
It had been agreed by the parties throughout the litigation that the protection of minors from harmful online content was a compelling state interest. However, the Third Circuit found that the statute was not narrowly tailored both because holding all communities to the standard of one would mean that much material that was acceptable in some or all communities would nonetheless be banned in those communities, and because of the difficulty of ascertaining the meaning of the term “as a whole” in the statute “when everything on the Web is connected to everything else” (ACLU v. Ashcroft, 322 F.3d at 252). And blocking and filtering software provided a less restrictive means than COPA to achieve the same result; indeed, such software might be more effective, because it could block foreign Web sites beyond the reach of COPA. The Third Circuit once again affirmed the issuance of the injunction.
The matter did not end there. The Supreme Court once again granted certiorari to consider the matter. On June 29, 2004, a three-justice plurality, with two justices concurring in the result, issued a decision affirming the preliminary injunction and remanding the case for trial. The Court reasoned that the preliminary injunction should stand because the government had not shown that it would be likely to rebut the ACLU’s contention that filtering software, a less restrictive alternative to COPA, can protect children from online pornography without infringing the First Amendment rights of adults. A trial was necessary to determine the present-day effectiveness of filtering technology, five years after the grant of the initial injunction.
The Court also reasoned that COPA’s “effectiveness is likely to diminish even further if COPA is upheld, because the providers of the materials that would be covered by the statute simply can move their operations overseas” (Ashcroft v. ACLU, 544 U.S. 656). Filtering software can block content originating outside the United States; COPA cannot.
In 2007, the ACLU again challenged the constitutionality of COPA. The district court permanently enjoined the Attorney General from enforcing or prosecuting under COPA “at any time for any conduct” (ACLU v. Gonzales, 478 F. Supp. 2d at 821). The court reasoned that COPA did not pass the strict scrutiny requirements of the First and Fifth Amendments. On appeal, the Third Circuit affirmed, agreeing that COPA was unconstitutional under the First Amendment. Although COPA served a compelling interest, it was neither narrowly tailored to achieve that interest, nor was it the least restrictive means. In addition, the Court found that COPA was facially unconstitutional: it was both vague and overbroad. The Third Circuit issued a permanent injunction barring enforcement of COPA. The Attorney General appealed to the Supreme Court; however, the Court denied certiorari, effectively putting an end to COPA. Support for COPA eventually diminished. Perhaps, as well-known Internet commentator Declan McCullagh observed, COPA was too limited: “It applies only to material delivered ‘by means of the World Wide Web’—meaning that it doesn’t cover peer-to-peer file sharing, videos watched via a third-party iPhone application, or streaming porn viewed through the VideoLAN Client, RealPlayer, or Windows Media Player desktop applications” (McCullagh 2009).
The Internet may ultimately bring the entire issue of “community standards,” the linchpin of the Miller definition of obscenity, into question. Even without the Internet, the increasing mobility of the U.S. populace and the fragmentation of society, especially in large cities, make “community standards” difficult to determine. On any street in any town in the United States, one may encounter values both more conservative than those in Tehran and more liberal than those in Amsterdam, to use the Third Circuit’s examples. Indeed, any person using a computer in any U.S. household may be virtually present in Tehran or in Amsterdam, or in both at once.
Statute
• Child Online Protection Act, 47 U.S.C. § 231
Cases
• American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007)
• American Civil Liberties Union v. Mukasey, 534 F.3d 181 (3d Cir. 2008), cert. denied sub nom Mukasey v. American Civil Liberties Union, 555 U.S. 1137 (2009)
• American Civil Liberties Union v. Reno, 217 F.3d 162 (3d Cir. 2000), reversed sub nom, Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), on remand, American Civil Liberties Union v. Ashcroft, 322 F.3d 240 (3d Cir. 2003), certiorari granted, Ashcroft v. American Civil Liberties Union, 540 U.S. 944 (2003), affirmed & remanded, 542 U.S. 656 (2004)
• Miller v. California, 413 U.S. 15 (1973)
See also Censorship; Children’s Internet Protection Act; Communications Decency Act; Constitutional Law; First Amendment; Indecency; Obscenity; Pornography
Sources and Further Reading
Mike Godwin, Cyber Rights: Defending Free Speech in the Digital Age (Cambridge, MA: MIT Press, 2003)
Kevin F. King, “Personal Jurisdiction, Internet Commerce, and Privacy: The Pervasive Legal Consequences of Modern Geolocation Technologies,” 21 Albany Law Journal of Science & Technology 61 (2011)
Lawrence Lessig, Code and Other Laws of Cyberspace, Version 2.0 (New York: Basic Books, 2006)
Saul Levmore & Martha C. Nussbaum, eds., The Offensive Internet: Speech, Privacy & Reputation (Cambridge, MA: Harvard University Press, 2012)
Declan McCullagh, “Supreme Court Deals Deathblow to Antiporn Law,” CNET (January 21, 2009), http://news.cnet.com/8301–13578_3–10147171–38.html
Joel R. Reidenberg, “Current Debates in the Conflict of Laws: Choice of Law and Jurisdiction on The Internet: Technology and Internet Jurisdiction,” 153 University of Pennsylvania Law Review 1951 (2005)
Kevin W. Saunders, Saving Our Children from the First Amendment (New York: New York University Press, 2003)
CHILD PORNOGRAPHY
The Supreme Court has long held that child pornography is not protected speech under the First Amendment, at least where actual children are involved (Ferber, 458 U.S. 747). In 1996, Congress enacted the Child Pornography Prevention Act, which prohibited the possession or distribution of any image that was, “or appeared to be, of a minor engaging in sexually explicit conduct.” This covered not only depictions of actual children, but computer-generated images in which no actual children were involved.
A major component of the underlying rationale for Supreme Court decisions on child pornography, particularly New York v. Ferber, had been that child pornography is intrinsically related to the sexual abuse of children. It is a record of sexual abuse; actual children are involved in its production and are harmed thereby; and it creates a market for the material, which in turn fuels the problem of sexual abuse of children. When no actual children are involved, the first two of these components are no longer present; the Child Pornography Prevention Act thus presented the Supreme Court with a new question of law. In Ashcroft v. Free Speech Coalition, the Court found that the prohibition was unconstitutionally overbroad because it could prohibit expression that was not intrinsically related to the sexual abuse of actual children and was not obscene under the test set out in Miller v. California (535 U.S. 234). The Court rejected other arguments offered by the government regarding the potential for harm from virtual child pornography on the grounds that they were speculative and did not justify curtailing First Amendment protections (Miller, 535 U.S. 234).
The Court’s decision in Ashcroft v. Free Speech Coalition does not mean that all images containing virtual child pornography are necessarily protected by the First Amendment, or even that any are. Such images may be, and probably are, obscene under the Miller test, and may thus be prohibited.
Shortly after the Court struck down the Child Pornography Protection Act in Ashcroft v. Free Speech Coalition, a new bill, the Prosecuting Remedies and Tools Against the Exploitation of Children Today (PROTECT) Act of 2003, was signed into law. Included in its various provisions was 18 U.S.C. § 1466A, which made illegal visual depictions of child pornography:
Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that—
(1)
(A) depicts a minor engaging in sexually explicit conduct; and
(B) is obscene; or
(2)
(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and
(B) lacks serious literary, artistic, political, or scientific value;
or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1) [18 USCS § 2252A(b)(1)], including the penalties provided for cases involving a prior conviction. (18 U.S.C. § 1466A(a)).
The U.S. Court of Appeals for the Fourth Circuit upheld the constitutionality of this provision in a 2008 case involving hentai—Japanese-style animated pornography. The defendant was convicted of receiving on his computer a number of hentai images depicting minors engaging in sexually explicit conduct. He challenged Section 1466A, claiming that it was “unconstitutional under the First Amendment, as applied to cartoons, because cartoons do not depict actual minors.” (Whorley, 550 F.3d at 330). This defense failed, however, because Section 1466A(a)(1) “prohibits visual depictions of minors only when they are obscene.” Obscenity, whether it involves child pornography or not, is not protected under the First Amendment (Miller, 535 U.S. 234). Whorley also challenged the constitutionality of Section 1466A(a)(2), which does not invoke the obscenity exception, although it does partially invoke the Miller factors. However, Whorley lacked standing to bring this challenge; in the Fourth Circuit’s words, “Because Whorley was not convicted of offenses under those provisions, we decline to address his challenges to them” (Whorley, 550 F.3d at 337 n.2).
Legislative proposals to strengthen child pornography laws continue to be made. The Protecting Children from Internet Pornographers Act of 2011 would ease the process of collecting information from Internet service providers whose users are viewing and distributing child pornography. Advocacy groups, including EFF and the ACLU, have objected to the proposed Act on the grounds that it is too invasive of the privacy rights of innocent users. Another recent bill is the Child Protection Act of 2012, which would increase funding for task forces dedicated to stopping child pornography.
Statutes and Proposed Legislation
• Child Pornography Prevention Act of 1996, 18 U.S.C. §§ 2251–2260
• Child Protection Act of 2012, S. 3456, 112th Cong. (2d Sess. 2011–2012)
• Prosecuting Remedies and Tools Against the Exploitation of Children Today (PROTECT) Act of 2003, 18 U.S.C. § 1466A
• Protecting Children from Internet Pornographers Act of 2011, H.R. 1981, 112th Cong. (1st Sess. 2011–2012)
Cases
• Miller v. California, 413 U.S. 15 (1973)
• New York v. Ferber, 458 U.S. 747 (1982)
• Osborne v. Ohio, 495 U.S. 103 (1990)
• Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)
• United States v. Whorley, 550 F.3d 326 (4th Cir. 2008)
See also Censorship; Child Online Protection Act; Children’s Internet Protection Act; Children’s Online Privacy Protection Act; Communications Decency Act; Constitutional Law; Encryption; First Amendment; Obscenity; Pornography
Sources and Further Reading
Rosalind E. Bell, “Reconciling the Protect Act with the First Amendment,” 87 New York University Law Review 1878 (2012)
Grant Gross, “Advocacy Group Takes Aim at Anti-Porn Bill,” PCWorld (February 27, 2012), available at http://www.pcworld.com/article/250803/advocacy_group_takes_aim_at_antiporn_
bill_requiring_isp_data_retention.html
CHILDREN’S INTERNET PROTECTION ACT
The Children’s Internet Protection Act (CIPA) of 1998 was a companion act to the Child Online Protection Act (COPA). While COPA attempts to control all access to certain types of material by certain persons, CIPA attempts to control access from certain computers by requiring schools and libraries receiving federally subsidized discounted Internet access to install filtering and blocking software.
The federally funded E-rate or School and Libraries Discount program enables qualifying schools and libraries to obtain access to the Internet at discounts of up to 90%, depending upon economic need. Under the Telecommunications Act, the E-rate is only available to schools and libraries if administrators certify that the school or library
(1) is enforcing a policy of Internet safety for minors that includes monitoring the online activities of minors and the operation of a technology protection measure with respect to any of its computers with Internet access that protects against access through such computers to visual depictions that are
(I) obscene;
(II) child pornography; or
(III) harmful to minors; and
(2) is enforcing the operation of such technology protection measure during any use of such computers by minors (47 U.S.C. § 254(h)(5)(B)).
With respect to adults, the school or library must make an identical certification, except that item III (protection against material harmful to minors) is not required. In addition, a school or library administrator or authorized person “may disable the technology protection measure concerned, during use by an adult, to enable access for bona fide research or other lawful purpose” (47 U.S.C. § 254(h)(5)(D)).
CIPA was signed into law in December 2000 by then president Clinton, who expressed disappointment with the statute. Clinton’s misgivings included concerns about the efficacy of filtering software and the conflict with First Amendment rights; he stated that he would have preferred locally developed and implemented alternatives.
CIPA required elementary and secondary schools and public libraries providing Internet access to meet two additional requirements for federal funding and benefits. First, schools and libraries were required to purchase and install “technology protection measures”—filtering programs—to filter or block Internet access to specified “visual depictions.” In addition, each institution was required to hold a minimum of one public meeting on Internet safety policies to gather input and feedback from community members.
The specified visual depictions to be blocked were those that were obscene or constituted child pornography; the First Amendment protects neither obscenity nor child pornography, and the requirement of one meeting was at least a nod to the “community standards” element of the Miller test for obscenity. “Harmful to minors” is defined in CIPA as meaning
any picture, image, graphic image file, or other visual depiction that—
(i) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion;
(ii) depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and
(iii) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors (47 U.S.C. § 254(h)(7)(G)).
Interestingly, this definition differs somewhat from the definition of “harmful to minors” in CIPA’s companion act, COPA (47 U.S.C. § 231(e)(6)).
CIPA also includes a subtitle, Neighborhood Children’s Internet Protection, that requires schools and libraries to adopt policies that address areas such as minors’ access to inappropriate matter on the Web, their safety when using email, chat rooms, and other direct electronic communications (such as instant messaging), and hacking. The term “inappropriate for minors” is to be determined by a “school board, local educational agency, library, or other authority,” rather than by an “agency or instrumentality of the United States Government,” nor are these locally adopted policies subject to review by these federal agencies or instrumentalities (47 U.S.C. § 254(l)(2)).
Not surprisingly, CIPA was immediately challenged by First Amendment advocates. Plaintiffs, including the ‘ACLU and the American Library Association (ALA), filed suit in the federal District Court for the Eastern District of Pennsylvania to enjoin enforcement of CIPA on the grounds that it was an unconstitutional abridgement of First Amendment rights, at least as far as libraries and their adult patrons were concerned. With regard to libraries, the plaintiffs argued that CIPA required the imposition of content-based restrictions on library patrons’ access to constitutionally protected speech. Although patrons could request that blocked content be unblocked, placing the burden on the library patron to make the request, which might be embarrassing, was likely to discourage many patrons from doing so. And because existing filtering and blocking programs are imperfect, much speech that Congress intended to permit is blocked, and much speech that Congress intended to restrict gets through. In addition, the plaintiffs claimed, the imposition of controls on freedom of expression as a prerequisite to the receipt of federal funds was an impermissible use of the spending power. The existence of an “unblocking” procedure was an insufficient safeguard, because library patrons might feel embarrassed to request the unblocking of certain sites, with a consequent chilling effect on free speech. The district court agreed (American Library Association, 201 F. Supp. 2d 401).
The case was appealed directly to the U.S. Supreme Court, which reversed the district court’s decision in June 2003. A four-justice plurality of the Supreme Court, with two justices concurring in the result, stated that CIPA was not unconstitutional either as a violation of First Amendment rights or as an impermissible condition attached to Congressional exercise of the spending power. Writing for the plurality, Chief Justice Rehnquist pointed out that “a library reviews and affirmatively chooses to acquire every book in its collection,” and that most libraries choose not to acquire pornographic books. The nature of the Web renders it impossible for a library to engage in a similar selection process with the Web content, but the purpose of a library is not to provide a First Amendment forum for Web content publishers. It is to facilitate learning and cultural enrichment, and this process of facilitation invariably involves the making of choices about what material the library will provide to its patrons (American Library Association, 539 U.S. 194).
While CIPA’s constitutionality has been upheld, its usefulness has been limited by subsequent technological and social developments. Chief among the technological advances have been the advent of local wireless routing and of netbooks, tablets, smartphones, and other ultraportable Internet-capable devices. Where a library provides wireless access but places filtering software only on its own computers, library patrons may be able to use the library’s wireless Internet access while bypassing the filtering software. The social changes are harder to track or predict, but it seems likely that the now-universal availability of digital image and video recording devices, combined with a wide variety of options via which recordings can be made with those devices can be communicated, mean that “peer-to-peer” objectionable content may be replacing the traditional distributor-to-audience model of distribution. The ease with which content can be uploaded to a variety of sites, or sent through a variety of means of messaging, makes it impossible to update Web filters quickly enough to block such content (see Spurlin & Garry 2009). Here again, though, technology may race ahead, with image-recognition technology providing the ability to block objectionable content as quickly as it appears.
Statutes
• Children’s Internet Protection Act, 47 U.S.C. § 254(h)
• Neighborhood Children’s Internet Protection Act, 47 U.S.C. § 254(l)
Case
• American Library Association v. United States, 201 F. Supp. 2d 401 (E.D. Pa. 2002); reversed sub nom, U.S. v. American Library Association, Inc., 539 U.S. 194 (2003)
See also Censorship; Child Online Protection Act; Communications Decency Act; Constitutional Law; First Amendment; Indecency; Obscenity; Pornography
Sources and Further Reading
Kathryn Kolbert & Zak Mettger, eds., Justice Talking: Censoring the Web—Leading Advocates Debate Today’s Most Controversial Issues (New York: The New Press, 2002)
Eli Pariser, The Filter Bubble: What the Internet is Hiding from You (New York: Penguin Press, 2011)
Kevin W. Saunders, Saving Our Children from the First Amendment (New York: New York University Press, 2003)
Madeleine Schachter, Law of Internet Speech (Durham, NC: Carolina Academic Press, 3d ed. 2008)
Candice J. Spurlin & Patrick M. Garry, “Does Filtering Stop the Flow of Valuable Information?: A Case Study of the Children’s Internet Protection Act (CIPA) in South Dakota,” 54 South Dakota Law Review 89 (2009)
Heidi Wachs, “Permissive Pornography: The Selective Censorship of the Internet under CIPA,” 11 Cardozo Women’s Law Journal 441 (2005)
CHILDREN’S ONLINE PRIVACY PROTECTION ACT
The Children’s Online Privacy Protection Act (COPPA) was enacted in 1998; the FTC initially promulgated implementing regulations that took effect in April 2001 (16 C.F.R. § 312), and has engaged in an ongoing rulemaking process since then (see Borges 2011). COPPA was enacted in response to concerns that information about children’s use of the Web, routinely gathered by the Web sites the children visited, could be misused. COPPA sets guidelines for operators of commercial Web sites that target children under the age of 13 and for operators of other Web sites who know that they collect information from children under the age of 13.
COPPA requires such operators to provide notice of what information they collect from children, how they use the information, and their practices regarding disclosure of the information. Operators may not collect, use, or disclose personal information obtained from a child without the verifiable consent of the child’s parents. Information that will trigger COPPA, if gathered, includes information that may identify or permit communication with the child, such as a first or last name, address, email address, telephone number, or social security number. The parents must be provided with a reasonable means to review the information and to refuse to permit its further use or maintenance. A child’s participation in a game, promotional sweepstakes or contest, or any other activity may not be conditioned upon the collection of any information other than that which is reasonably necessary to enable the child to participate in the activity. Web site operators must establish privacy policies that adopt reasonable procedures to protect the confidentiality, security, and integrity of any personal information collected from children (15 U.S.C. § 6502).
COPPA contains a safe harbor provision for certain organizations, but it must be affirmatively applied for; if not previously applied for and granted, it cannot be raised as a defense (15 U.S.C. § 6503). Only four organizations, so far, have been granted exceptions from COPPA under the safe harbor provision: the Children’s Advertising Review Unit of the Better Business Bureau (CARU), the Entertainment Software Ratings Board, TRUSTe, and Privo, Inc. The safe harbor provision, along with the rest of the Rule, continues to be amended and strengthened. A review of the Rule was initiated in 2010 to ensure it was remaining effective with the evolving technological landscape. A series of final amendments will go into effect in 2013, including closing a loophole that currently allows third parties to collect personal information from child-directed apps and Web sites. The amendments will also require safe harbor programs to audit members and report their findings annually to the FTC. Overt opposition to COPPA has been limited, with one rare exception provided by Facebook founder Mark Zuckerberg. Zuckerberg has criticized COPPA as limiting children’s educational opportunities, stating “My philosophy is that for education you need to start at a really, really young age,” adding “We’d take a lot of precautions to make sure that [the children] are safe” (Lev-Ram 2011). This idea has been greeted with concern from some and cautious approval, mingled with a call for stronger protections, from others (Facebook and Children 2012).
The FTC, aided by independent watchdogs such as CARU, has actively pursued COPPA violators, often imposing significant fines. In 2003, Hershey’s Foods and Mrs. Field’s Cookies agreed to settle COPPA charges brought by the FTC for $85,000 and $100,000, respectively (FTC 2003). In 2006, Xanga.com, a then-popular social networking site, was fined $1,000,000 for violating COPPA. Bonzi Software, Inc. was fined $75,000, while UMG Recordings agreed to pay $400,000 for violating COPPA while operating music fan sites targeting children. Similarly, in 2008, Sony BMG Music Entertainment, which then operated over 1000 fan sites for musicians and labels, agreed to settle charges for a $1,000,000 penalty; Imbee.com, a social networking site targeting “tweens,” paid a $130,000 penalty. In 2009, Iconix Brand Group, an apparel brand geared toward children, paid $250,000 in 2009. In 2011, Playdom, an online gaming company owned by Disney Enterprises, agreed to settle COPPA charges for $3,000,000 (Khurana 2011). Also in 2011, a mobile apps developer paid $50,000 in fines, and a social networking site for kids, skidekids.com, paid $100,000. In 2012 Artist Arena, the operator of fan Web sites for celebrities, including Justin Bieber and Rihanna, agreed to settlement charges for $1,000,000 and RockYou, a social game site, paid $250,000.
Statute
• Children’s Online Privacy Protection Act, 15 U.S.C. §§ 6501–6506
Regulation
• Children’s Online Privacy Protection Rule, 64 Fed. Reg. 59,888 (November 3, 1999) (codified at 16 C.F.R. § 312 (2001))
See also Advertising; Adware and Spyware; Anonymity; App; Privacy; Social Networking Service
Sources and Further Reading
Tsan Abrahamson, “Coping with COPPA: The Practical Aspects of Children’s Privacy,” Practical Lawyer, January 2002, at 49
Rebecca Borges, “In re The Federal Trade Commission’s Proposed Revisions to the Children’s Online Privacy Protection Rule, Notice of Proposed Rulemaking, 76 Fed. Reg. 59804 (September 27, 2011),” 20 CommLaw Conspectus 293 (2011)
Julie Cromer Young, “From the Mouths of Babes: Protecting Child Authors from Themselves,” 112 West Virginia Law Review 431 (2010)
“Facebook and Children: Let the Nippers Network,” The Economist, June 9, 2012, at 18
“FTC Charges That Security Flaws in Rock You Game Exposed 32 Million Email Addresses and Passwords,” Federal Trade Commission (March 27, 2012), available at http://ftc.gov/opa/2012/03/rockyou.shtm
“FTC Receives Largest COPPA Civil Penalties to Date in Settlements with Mrs. Fields Cookies and Hershey Foods,” Federal Trade Commission (February 27, 2003), available at http://www.ftc.gov/opa/2003/02/hersheyfield.shtm
Melanie L. Hersh, “Is COPPA a Cop-Out? The Child Online Privacy Protection Act as Proof that Parents, Not Government, Should Be Protecting Children’s Interests on the Internet,” 28 Fordham Urban Law Journal 1831 (2001)
“Iconix Brand Group Settles Charges Its Apparel Web Sites Violated Children’s Online Privacy Protection Act,” Federal Trade Commission (October 20, 2009), available at http://www.ftc.gov/opa/2009/10/iconix.shtm
“Imbee.com Settles FTC Charges Social Networking Site for Kids Violated the Children’s Online Privacy Protection Act; Settlement Includes $130,000 Civil Penalty,” Federal Trade Commission (January. 30, 2008) available at http://www.ftc.gov/opa/2008/01/imbee.shtm
Kevin Khurana, “COPPA Violations? Cop a Settlement for $3 Million,” Proskauer Privacy Law Blog (May 18, 2011), available at http://privacylaw.proskauer.com/2011/05/articles/childrens-online-privacy-prote/coppa-violations-cop-a-settlement-for-3-million/
Frederick Lane, Cybertraps for the Young (Chicago: NTI Upstream, 2011)
Michal Lev-Ram, “Zuckerberg: Kids under 13 Should Be Allowed on Facebook,” CNNMoney (May 20, 2011) available at http://tech.fortune.cnn.com/2011/05/20/zuckerberg-kids-under-13-should-be-allowed-on-facebook/
Lauren A. Matecki, “COPPA is Ineffective Legislation! Next Steps for Protecting Youth Privacy Rights in the Social Networking Era,” 5 Northwestern Journal of Law and Social Policy 369 (2010)
“Mobile Apps Developer Settles FTC Charges It Violated Children’s Privacy Rule,” Federal Trade Commission (August 15, 2011), available at http://www.ftc.gov/opa/2011/08/w3mobileapps.shtm
“Operator of Celebrity Fan Websites to Pay $1 Million to Settle FTC Charges That It Illegally Collected Children’s Information without Their Parent’s Consent,” Federal Trade Commission (October 4, 2012), available at http://www.ftc.gov/opa/2012/10/artistarena.shtm
“Operator of Social Networking Website for Kids Settle Charges Site Collected Kids’ Personal Information without Parental Consent,” Federal Trade Commission (November 8, 2011), available at http://www.ftc.gov/opa/2011/11/skidekids.shtm
Cheryl B. Preston, “CyberInfants,” 39 Pepperdine Law Review 225 (2012)
“Sony BMG Music Settles Charges Its Music Fan Websites Violated the Children’s Online Privacy Protection Act,” Federal Trade Commission (December 11, 2008), http://www.ftc.gov/opa/2008/12/sonymusic.shtm
“Xanga.com to Pay $1 Million for Violating Children’s Online Privacy Protection Rule,” Federal Trade Commission (September 7, 2006), available at http://www.ftc.gov/opa/2006/09/xanga.shtm
CHOICE OF LAW
A choice-of-law problem arises when the law of more than one jurisdiction may be applicable to a particular situation. Choice-of-law problems arise even in the absence of the Internet. If, for example, a California employee of a California corporation travels to Nevada on business and is injured there by a resident of Arizona, it is not instantly apparent whether California, Nevada, or Arizona tort and workers’ compensation laws should apply to a suit for damages brought by the injured employee. The answer might depend on where the suit was brought; courts in California, Arizona, and Nevada, each employing their own choice-of law-rules, might reach three different results.
While states tend, either through stated policy or through their practice over a period of time, to prefer their own law, the preference is not absolute. A Nevada court might well decide that California workers’ compensation law should apply and that, if the California workers’ compensation law did not bar the tort suit, that Nevada’s own tort law should apply.
The Internet increases the possibility of choice-of-law problems. On the Internet, most transactions and interactions involve multiple jurisdictions. With a single click, and without consulting an attorney or reviewing the law of the various jurisdictions involved, a surfer sitting at home in Vermont may purchase and download music from an Australian company with its principal place of business in the Netherlands. The download might take place via a server located in Virginia; the server might belong to an Internet service provider incorporated in the Cayman Islands but with its principal place of business in Louisiana. The order might be paid for with a credit card issued by a bank in Delaware. Without the knowledge of the purchaser, the music downloads might have been illegally copied in Switzerland from disks purchased in Spain by a Norwegian citizen; the copyright owner might be a Mexican corporation with its principal place of business in Florida, which in turn has authorized a California organization to enforce its rights. If the organization in California sues the Norwegian copier, the Dutch/Australian seller, and the Vermont purchaser, and the purchaser in turn sues the seller, the various disputes might conceivably be governed by Vermont, Australian, Dutch, Virginia, Cayman Islands, Louisiana, Delaware, Swiss, Spanish, or Norwegian, Mexican, Florida, or California law. (Although the latter three are the places where the plaintiff, rather than any of the defendants, is located, choice-of-law clauses in the music licensing agreements might dictate the application of the laws of one of these places against the purchaser of the disks. Such clauses might also dictate the application of the law of some other jurisdiction.)
The question of choice of law is separate from, although related to, the question of jurisdiction. The fact that a court in, say, California has jurisdiction over the case does not necessarily mean that the case will be decided under California law. The California court might apply the laws of Vermont, Australian, the Netherlands, Virginia, the Cayman Islands, Louisiana, Delaware, Switzerland, Spain, Norway, Mexico, or Florida, instead. Which state’s or nation’s law is to be applied will be determined under the forum state’s choice-of-law rules; these vary widely among states. Special problems occurring in the resolution of conflicts-of-laws problems include problems of characterization, renvoi, ordre public, and depéçage, and the difficulty of proving the content and meaning of foreign law (Richman & Reynolds 2002, 165–172).
Characterization
In any choice-of-law problem, the issues of characterization of the subject matter, characterization of the problem as substantive or procedural, and characterization of the applicable law must be addressed. The forum state’s law is generally applied to problems of characterization.
Characterization of the subject matter and applicable law can affect the outcome because a state’s choice-of-law rules may end up dictating that one state’s law is applicable if the problem is characterized as a tort problem, and another’s is applicable if the problem is characterized as a contract problem. This result may be indirect; for instance, even though a state’s law may apply superficially similar rules to torts and contracts conflicts, it may define the locus of a tort as the place where the injury was suffered and the locus of a contract as the place where performance was to take place. If these two loci are not in the same state, the focus of the litigation may be on whether the case is more properly characterized as one in tort or in contract, with each litigant urging the characterization that results in the application of the law most favorable to that litigant’s position.
Characterization of the problem as substantive or procedural may also affect the outcome. When a forum’s choice-of-law rule refers to the law of another state, it will apply the substantive law of that state but will still use its own procedural law. Thus, in a case in which the law of another state or country may be applied to some issues, the court must characterize each issue as substantive or procedural (Richman & Reynolds 2002, 160–165).
Renvoi
Occasionally, a court will be directed by statute or prior case law to apply the “whole law” of another jurisdiction, meaning that other state’s substantive law and its choice-of-law rules. This is renvoi, so called because it may result in a “sending back” to the law of the original state: The second state’s choice-of-law rules may refer the case back to the law of the first state, whose own choice-of-law rules originally referred the case to the law of the second state. Applying the second state’s choice-of-law rules may also result in a “sending on” to the law of some third state. Even in the absence of a statutory or other directive to apply the whole law of some other state, the question may arise whether a court should consider the other state’s conflicts law, either in circumstances where the other state’s law would refer back to the forum (remission) or to yet another state (transmission). Renvoi is rare in the United States; when it does occur, the original state must either accept or reject the renvoi to avoid an endless loop in which each state’s law dictates the application of the other state’s law rather than its own.
Public policy/Ordre public
A state will not apply another state’s law if that law offends its local public policy. However, through the process of depéçage (“dismemberment,” or applying the laws of different states to different issues in a case) the state’s court may apply that part of the law that does not offend the state’s public policy, eliminating only the part that offends.
Proof of foreign law
At common law, foreign law (including the law of other U.S. states) had to be pleaded/and proved as fact, and the determination of the foreign law was therefore not ordinarily subject to review on appeal. (Appellate courts ordinarily review only a trial court’s conclusions of law, not its findings of fact.) Statutory changes now provide for judicial notice of the law of other states of the United States, although not of the law of foreign countries. A uniform act and a federal rule provide that the court, with the assistance of the parties, is to determine foreign law and that its decision is subject to review. When proof fails or the foreign law cannot be determined, a court may presume that the foreign law is the same as the forum’s law (Richman & Reynolds 2002, 173–176).
Cases
Supreme Court
• Alabama Great Southern Railroad Company v. Carroll, 97 Ala. 126 (1892)
State Courts
• In re Schneider’s Estate, 96 N.Y.S. 2d 652 (N.Y. Sup. Ct. 1950)
• Kilberg v. Northwest Airlines, Inc., 172 N.E.2d 34 (N.Y. App. Ct. 1961)
• University of Chicago v. Dater, 270 N.W. 175 (Mich. 1936)
Restatement
• American Law Institute, Restatement of the Law Second: Conflict of Laws (Philadelphia, Pennsylvania: American Law Institute 1971)
See also Cloud; Jurisdiction
Sources and Further Reading
Joel R. Reidenberg, “Current Debates in the Conflict of Laws: Choice of Law and Jurisdiction on the Internet: Technology and Internet Jurisdiction,” 153 University of Pennsylvania Law Review 1951 (2005)
William M. Richman & William L. Reynolds, Understanding Conflict of Laws (New York: Matthew Bender, 3d ed. 2002)
David D. Siegel, Conflicts in a Nutshell (St. Paul, MN: West, 2d ed. 2005)
Russell J. Weintraub, Commentary on the Conflict of Laws (New York: Foundation Press, 6th ed. 2010)
CIPHER AND CIPHERTEXT
See Encryption
CIRCUMVENTION OF TECHNOLOGICAL MEASURES
See DeCSS
CLASS ACTION
A class action lawsuit is one in which a small number of named parties—possibly as few as one—represents the interest of a large class. In order for a class action to be brought under rule 23 of the Federal Rules of Civil Procedure, the class must be “so numerous that joinder of all members is impracticable,” there must be “questions of law or fact common to the class,” “the claims or defenses of the representative parties” must be “typical of the claims or defenses of the class,” and the representative parties must “fairly and adequately protect the interests of the class” (Fed. R. Civ. P. 23(a)). In addition to these four basic elements, certain additional elements are necessary to maintain a class action. There are three ways in which these additional elements may be met: A class action may be maintained if the first four elements are met and
(1) Separate actions by or against the class members would create a risk of inconsistent results or would dispose of or impair the interests of other class members, or
(2) “The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole,” or
(3) There are questions of law or fact common to the members of the class that predominate over any questions affecting only individual members so that a class action is the fairest and most efficient means of adjudication available (Fed. R. Civ. P. 23(b)).
The information technology revolution has brought about no fundamental change in the law of class actions, but class actions have been used as a tool to ensure fairness to consumers. The settlement of a class action brought on behalf of users of Toshiba laptop computers on the grounds that a flaw in the computers could cause incorrect recording of data has been particularly influential (see 91 F. Supp. 2d 942). The settlement, for over $2 billion, led to the immediate filing of class action suits against NEC, Compaq, Hewlett-Packard, and other computer manufacturers. It has also encouraged the use of class actions as a tool for the litigation of mass torts: If the number of plaintiffs in the class is large, lawyers can earn substantial fees even when the amount of damage suffered by each individual plaintiff is very, very small. The legal fees for the lawyers representing the class in the Toshiba case, for example, came to $147.5 million.
For this reason, class actions have been criticized as being more valuable in providing employment for lawyers than in protecting consumer rights. A class action plaintiff, who receives an eight-page notice of class action in the mail, spends 15 minutes filling out the enclosed form, mails it back, and finally receives a check for 3 cents may feel that the reward was not justified by the amount of effort involved.
Against this argument is balanced the argument that some harms may be too small to motivate individual plaintiffs and thus go unchecked in the absence of class action litigation. For example, an ISP with 10 million subscribers might, either through a deliberate intent to mislead the subscribers or through sheer inefficiency, overbill each subscriber by 10 cents per month. It would not be worth any subscriber’s time to take the effort to correct the error, and most would probably not even notice. Yet the ISP would receive a substantial benefit: a million dollars a month in unearned revenue. This hardly seems fair, yet the government lacks the resources to pursue all cases of such minor injustice. Rule 23 has the effect of enabling private parties—in this case class action lawyers—to enforce public rights where the government is unable or unwilling to do so.
The Internet may also affect class actions by reducing some of the costs involved: defendants and plaintiff/class lawyers may use Web sites as a means of communicating with class members; in the Toshiba case, for example, Toshiba Corporation used a Web site to communicate with the plaintiffs, presumably reducing printing and mailing costs.
Rule
• Rule 23 of the Federal Rules of Civil Procedure
Cases
• Lance’s Gifts & Collectibles, LLC v. Yahoo!, Inc., No. 05–8011, 2005 U.S. App. LEXIS 19378 (8th Cir. 2005)
• Shaw v. Toshiba America Information Systems, Inc., 91 F. Supp. 2d 942 (E.D. Tex. 2000)
See also Activism and Advocacy Groups; Enforcement
Sources and Further Reading
Robert H. Klonoff, Class Actions and Other Multi-Party Litigations in a Nutshell (St. Paul, MN: West, 2d ed. 2004)
CLICKWRAP AGREEMENT
When software is downloaded over the Internet or when an Internet user registers for an online service, it is generally necessary for the user to click a box indicating that he or she accepts the terms of a licensing agreement. The first few lines of the licensing agreement generally appear in the scroll window of a dialog box. The agreements are almost never read in their entirety by the users, and are rarely read at all. Nonetheless, they purport to affect the rights of the users of the software or the service. The extent to which they actually do so depends on general principles of contract law and law regarding end-user license agreements in particular.
Clickwrap agreements may be adhesion contracts: contracts prepared by one party in which the other party has no opportunity to negotiate and has no option but to take the contract as written or forgo the transaction. The Uniform Commercial Code, the body of contract law adopted, with slight modifications, by the legislatures of all 50 states, looks upon adhesion contracts without favor. While adhesion contracts are not prohibited by the Code, they are not enforceable if they defeat the reasonable expectations of the adhering party or are oppressive or unconscionable (Stone 2008).
Clickwrap and shrinkwrap agreements have been the subject of intensive lobbying by the software industry, which would like them to be free of the restrictions placed on adhesion contracts. This approach is embodied in the Uniform Computer Information Transactions Act, which like the Uniform Commercial Code is a body of law proposed for adoption by all 50 states, but unlike the Code has been adopted by only two (Maryland and Virginia). Consumer advocates and several state governments have united to oppose the adoption of the Act on the grounds that it would unfairly tilt the balance of bargaining power in favor of software companies (Letter from Attorneys General 1999).
Uniform Act
• Uniform Computer Information Transactions Act (2002), available at http://www.uniformlaws.org/Act.aspx?title=Computer%20Information%20Transactions%20Act (visited July 21, 2012)
• Uniform Commercial Code (2001), available at http://www.law.cornell.edu/ucc/ucc.table.html (visited July 21, 2012)
See also App; Choice of Law; Cloud; Contracts; Copyright; Uniform Computer Information Transactions Act
Sources and Further Reading
Letter to NCCUSL from Attorneys General Opposing UCITA (July 23, 1999), available at available at http://www.badsoftware.com/aglet1.htm (visited July 21, 2012)
Lucille M. Ponte, “Getting a Bad Rap? Unconscionability in Clickwrap Dispute Resolution Clauses and a Proposal for Improving the Quality of These Online Consumer ‘Products’,” 26 Ohio State Journal on Dispute Resolution 119 (2011)
Bradford Stone, Uniform Commercial Code in a Nutshell (St. Paul, MN: West, 7th ed. 2008)
CLOUD
Cloud computing refers to computing services available over a network rather than on physical infrastructure at the user’s location. It may be the software which is offered as a service or the computing platform or the entire infrastructure. The user’s data will be stored and processed on infrastructure located elsewhere, and typically owned by someone else. Cloud computing offers advantages; it can lower costs, especially for businesses, because there is no need, or at least less need, to buy, maintain, and upgrade equipment. It also offers greater portability: information stored in the cloud can be accessed from anywhere in the world, without the need to transport stored data.
Cloud computing also presents a number of legal challenges. Because information stored at the direction of the user may infringe intellectual property rights, be defamatory, or be otherwise illegal, the cloud service provider can operate only if protected by a safe harbor. In the United States, safe harbors are provided by 17 U.S.C. § 512 and 47 U.S.C. § 230; § 512 protects providers against liability for copyright infringement, while § 230 protects against most liability for tortious content (see, e.g., Zeran, 129 F.3d 327).
Cloud service providers may also face liability for interruptions of service, damage to or destruction of data, and for providing inadequate security. The latter worry has slowed down the growth of cloud computing; many companies are reluctant to entrust their confidential data to a service provider even though, objectively, that service provider’s security is much better than the client company could provide for itself.
As with any Internet matter, there are problems of jurisdiction and choice of law. With cloud computing, these are magnified, though, because of the difficulty, for the client, of knowing exactly where its files are stored and where services are being provided. The location in the real world where the infrastructure is located may change frequently to suit the cloud service provider’s needs, and in the ordinary course of business there would be no need for the service provider to inform the client of the change, or for the client to keep track of such changes.
Matters of provider liability and, to some extent, of jurisdiction and choice of law can be addressed in the contract between the cloud service provider and the client. As with any relatively new business practice, such contracts may not anticipate all of the problems that can arise; in addition, they may be subject to the same concerns as other clickwrap agreements, especially when one party has greater bargaining power.
Statutes
• Communications Decency Act, 47 U.S.C. § 230
• Online Copyright Infringement Liability Limitation Act (Digital Millennium Copyright Act, Title II), 17 U.S.C. § 512
Case
• Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997)
See also Choice of Law; Clickwrap Agreement; Contracts; Digital Millennium Copyright Act, Title II; Hacking; Internet Service Provider; Jurisdiction; Open Source; Privacy
Sources and Further Reading
Amazon Web Services, Amazon Elastic Compute Cloud (EC2) User Guide (2012)
“Business Computing: The Cloud Crowd,” The Economist, October 6, 2012, at 76
“Data Centres: Not a Cloud in Sight,” The Economist Technology Quarterly, September 21, 2002
Horacio E. Gutierrez, “Peering through the Cloud: The Future of Intellectual Property and Computing,” 20 Federal Circuit Bar Journal 589 (2011)
Kris Jamsa, Cloud Computing (Burlington, MA: Jones & Bartlett Learning, 2012)
David S. Linthicum, Cloud Computing and SOA Convergence in Your Enterprise: A Step-by-Step Guide (Boston: Addison-Wesley Publishing Co., 2009)
Lars Nielsen, The Little Book of Cloud Computing, 2013 Edition: Including Coverage of Big Data Tools (Wickford, RI: New Street Communications, 2013)
George Reese, Cloud Application Architectures: Building Applications and Infrastructure in the Cloud (Sebastopol, CA: O’Reilly Media, 2009)
John Rhoton, Cloud Computing Explained: Implementation Handbook for Enterprises (Tunbridge Wells, UK: Recursive Press, 2009)
John Rhoton & Risto Haukioja, Cloud Computing Architected: Solution Design Handbook (Tunbridge Wells, UK: Recursive Press, 2011)
Barrie Sosinsky, Cloud Computing Bible (Indianapolis: Wiley Publishing, 2009)
Patrick Van Eecke, “Cloud Computing Legal Issues,” DLA Piper Brussels, available at http://www.isaca.org/Groups/Professional-English/cloud-computing/GroupDocuments/DLA_Cloud%20computing%20legal%20issues.pdf (visited March 29, 2013)
Vic (J.R.) Winkler, “Cloud Computing: Legal and Regulatory Issues,” TechNet Magazine (May 2012), available at http://technet.microsoft.com/en-us/magazine/hh994647.aspx
CODES AND CODE-BREAKING
See Encryption
.COM
“.com” is the most universally familiar of the top-level domains; it is intended to indicate the address of a commercial enterprise, but many noncommercial organizations and individuals use .com addresses as well. The phrase “dot-com” or “dot.com” is also used to refer to Internet-based businesses as a category, particularly in reference to the stock market bubble of the late 1990s.
The .com domain name was originally created in 1984–85 by Jon Postel and Joyce Reynolds of the Network Working Group, along with five other generic top-level domains: .edu, .gov, .mil, .net, and .org (Postel & Reynolds 1984). The .com domain name is now administered by VeriSign (VeriSign 2004).
As the best-known and most popular top-level domain, .com has been especially plagued by cybersquatting and domain name disputes. These disputes can be resolved under the Uniform Domain Name Dispute Resolution Policy of the Internet Corporation for Assigned Names and Numbers, or in court under the Anticybersquatting Consumer Protection Act of 1999 (15 U.S.C. § 1125(d)). The .com top-level domain is also experiencing resource depletion; all or nearly all of the desirable domain names within it have already been registered.
See also Cybersquatting; Domain Name Registration; Internet Corporation for Assigned Names and Numbers; .xxx
Sources and Further Reading
“About Verisign,” Verisign, available at http://www.verisigninc.com/en_US/company-information/about-verisign/index.xhtml (visited October 2, 2012)
Jon Postel & Joyce Reynolds, “Domain Requirements,” Network Working Group Request for Comments: 920 (October 1984), available at http://www.ietf.org/rfc/rfc920.txt
“Verisign’s Sale of Authentication Services Business to Symantec Closes,” Verisign (August 9, 2010), available at https://investor.verisign.com/releasedetail.cfm?releaseid=497643
COMMUNICATIONS DECENCY ACT
The Communications Decency Act of 1996 (CDA) was the first law passed by Congress attempting to address the availability of pornography and obscene materials to minors over the Internet. The CDA was unsuccessful; its censorship provisions were ultimately struck down by the Supreme Court as unconstitutional (although its safe harbor provision remained), and even had it been enforced would have been ineffective against pornography originating outside the United States.
The CDA attempted to restrict the access of minors to pornography in two ways, each of which raised First Amendment issues. The first restrictive provision imposed a penalty on any person who knowingly transmitted “obscene” or “indecent” material to recipients known to the sender to be under 18 years of age. The second imposed a penalty on any person who used an “interactive computer service” to transmit to specific persons under age 18, or to “display in a manner available to” persons under 18, “any comment, request, suggestion, proposal, image, or other communication that, in context, depict[ed] or describe[d], in terms patently offensive as measured by community standards, sexual or excretory activities or organs” (47 U.S.C. § 223(d); amended in 2003 to read “any comment, request, suggestion, proposal, image, or other communication that, is obscene or child pornography” in an attempt to conform to the Supreme Court’s holding discussed next; superfluous comma in original).
The constitutional problem posed by the first prohibition involved the definition of “indecent”; the Supreme Court had long since established that obscene material was not entitled to First Amendment protection. The Court had also, however, distinguished indecent speech from obscenity and stated that indecent speech among adults, even though offensive, was constitutionally protected.
The constitutional problem posed by the second prohibition involved the scope of “patently offensive” content covered by the statute. The test developed by the Supreme Court in 1973 in Miller v. California provides that material is obscene if
(a) “the average person, applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest;”
(b) “the work depicts or described, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and”
(c) “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value” (413 U.S. at 39).
The CDA’s prohibition incorporated portions of this test: the “community standards” prong and part of the “patently offensive” prong (although it omitted Miller’s reference to “applicable state law”). Nothing was said about works that might have “serious literary, artistic, political, or scientific value.”
The CDA provided a safe harbor for content providers and Internet service providers who took “good faith, reasonable, effective and appropriate actions under the circumstances to restrict or prevent access by minors . . . including any method which [was] feasible under available technology” (47 U.S.C. § 223(d)(5)).
The CDA was immediately challenged by First Amendment advocates, including the ACLU. In a lengthy (175 pages) opinion, a three-judge panel of the U.S. District Court for the Eastern District of Pennsylvania unanimously found the restrictive provisions of the CDA unconstitutional because it had the effect of banning constitutionally protected, albeit “indecent,” adult speech over the Internet. Two of the three judges also found that the CDA was unconstitutionally vague under the Fifth Amendment because it did not enable content providers to reasonably distinguish between permitted and prohibited speech (ACLU v. Reno, 929 F. Supp. 824).
On appeal, the U.S. Supreme Court affirmed. Seven justices joined in the majority opinion; two (O’Connor and Rehnquist) wrote separate opinions, concurring in part and dissenting in part. The Court affirmed the District Court’s finding that the Internet, as a unique communications medium that had never been subject to government regulation, was entitled to the highest level of constitutional protection.
The Court found that the terms “indecent” and “patently offensive” were unconstitutionally vague under the First Amendment. (The Court did not reach the Fifth Amendment vagueness issue addressed by the District Court because it struck down the provisions on First Amendment grounds.) As a result of this vagueness, the CDA functioned as a content-based blanket restraint and could not be analyzed as a time, place, and manner restriction. The CDA’s purpose was to regulate children’s access to “indecent” material; its effect, however, was to restrict constitutionally protected adult speech. The goal of regulating children’s access to indecent material could have been achieved by a less-restrictive alternative; the burden on adult speech thus was not justified by the goal of the CDA (Reno v. ACLU, 521 U.S. 844).
Statute
• Communications Decency Act of 1996, 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)
Case
• American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), affirmed sub nom, Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)
See also Censorship; Child Online Protection Act; Children’s Internet Protection Act; Constitutional Law; Declaration of the Independence of Cyberspace; First Amendment; Indecency; Obscenity; Pornography
Sources and Further Reading
Robert Cannon, “The Legislative History of Senator Exon’s Communications Decency Act: Regulating Barbarians on the Information Superhighway,” 49 Federal Communications Law Journal 51 (1996)
Kevin W. Saunders, Saving Our Children from the First Amendment (New York: New York University Press, 2003)
Madeleine Schachter, Law of Internet Speech (Durham, North Carolina: Carolina Academic Press, 3d ed. 2008)
Kristina M. Sesek, “Twitter or Tweeter: Who Should Be Liable for a Right of Publicity Violation under the CDA?” 15 Marquette Intellectual Property Law Review 237 (2011)
Cass R. Sunstein, Republic.Com 2.0 (Princeton, NJ: Princeton University Press 2009)
COMPUTER FRAUD AND ABUSE ACT
See Hacking
COMPUTER MAINTENANCE COMPETITION ASSURANCE ACT
See Digital Millennium Copyright Act, Title III
COMPUTER PROGRAM
The Copyright Act of 1976 (as amended in 1980) defines a computer program as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” The definition of copyrightable computer programs extends to operating systems as well as applications.
While computer programs are copyrightable as literary works, their patentability has been much less clear, and the approach of the U.S. and other governments has varied over time. In 1966, the President’s Commission on the Patent System issued a report opposing the grant of patents for computer programs. The President’s Commission was influenced by the United States Patent and Trademark Office (USPTO), which had been overwhelmed with computer hardware patents and opposed the idea of software patents. Although in 1969 the Court of Customs and Patent Appeals had held that software for an analog computer was patentable, in 1972, the U.S. Supreme Court, relying heavily on the President’s Commission report, held that a mathematical algorithm used in a computer program was not patentable (Gottschalk, 409 U.S. 63). This was widely, if incorrectly, understood in the United States and Europe as a statement that computer programs themselves were unpatentable, and the USPTO suspended all pending computer program patent applications. As a result, copyright rather than patent became the main mechanism for protecting intellectual property rights in software. This has had significant consequences: it is much easier to obtain a copyright than to obtain a patent, and once obtained a copyright lasts for far longer than a patent; in information technology industry terms copyright, which can easily endure for over a century, might as well be eternal.
It was not until 1981 that the Supreme Court backtracked from this position; the USPTO began to accept applications for, and issue, software patents (Diamond, 450 U.S. 175). But the USPTO remained, if not overtly hostile, at least skeptical toward the idea. Only after a 1994 decision of the Court of Appeals for the Federal Circuit did the USPTO publish guidelines recognizing the patentability of a wide range of computer programs and related inventions (In re Alappat, 33 F.3d 1526). In yet another reversal, however, the test used to establish patentability in Alappat was abrogated by the Federal Circuit’s decision in In re Bilski (545 F.3d 943), which established (or, arguably, returned to) the “machine or transformation” test. While In re Bilski dealt with business methods patents, its logic is equally applicable to software patents. This was hinted at by the U.S. Supreme Court in its opinion affirming the decision of the Federal Circuit, when it approvingly cited Diamond v. Diehr, a case upholding the patentability of a procedure for molding rubber with an incorporated computer program (Bilski v. Kappos, 130 S. Ct. at 3227; Diamond, 450 U.S. 175).
The U.S. position regarding the patentability of computer programs has influenced the development of patent law elsewhere. Some of the changes in the U.S. position on this issue have been followed and some have not, leading to inconsistencies between U.S. law and the law of other countries. For example, the European Patent Convention provides that computer programs are not patentable subject matter (European Patent Convention, art. 52(2)(c)), although a decision of the European Patent Office (EPO) has held otherwise (International Business Machines, 1999), and the EPO continues to wrestle with this problem (Patentability of Programs for Computers, 2010). The patentability of computer programs remains a controversial issue in both the United States and the European Union (EU), and elsewhere as well; further changes in this area seem likely. The many changes and reversals in direction, continuing in recent years, indicate an area of law that is still in flux. The recent adoption of a unitary EU patent has added an extra layer of complexity.
Treaty
• Convention on the Grant of European Patents, 5 October 1973, 13 I.L.M. 276, text as amended through December 10, 1998, available at http://www.epo.org/law-practice/legal-texts/html/epc/2010/e/ma1.html (visited January 6, 2013) [European Patent Convention]
Statutes
• Copyright Act of 1976, 17 U.S.C. § 114
• Patent Act, 35 U.S.C. §§ 101 et seq.
Cases
Supreme Court
• Bilski v. Kappos, 130 S. Ct. 3218 (2010)
• Diamond v. Diehr, 450 U.S. 175 (1981)
• Ebay Inc. v. MercExhange, L.L.C., 547 U.S. 388 (2006)
• Gottschalk v. Benson, 409 U.S. 63 (1972)
Federal Appellate Courts
• Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983)
• AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999)
• In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994)
• In re Bilski, 545 F.3d 943 (Fed. Cir. 2008)
• State Street Bank & Trust v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1999), certiorari denied, 525 U.S. 1093
European Patent Office, Technical Board of Appeal
• Case T 0935/97–3.5.1., International Business Machines Corp., Technical Board of Appeal of the European Patent Office, (February 4, 1999)
• Case G 0003/08, Patentability of Programs for Computers, Enlarged Board of Appeal of the European Patent Office pursuant to Article 112(1)(b) EPC (November 12, 2010)
See also App; Copyright; Copyright Infringement; Digital Millennium Copyright Act, Title III; International Patent Protection; Patent
Sources and Further Reading
Press Release, European Parliament, Parliament Approves EU Unitary Patent Rules (December 11, 2012), available at http://www.europarl.europa.eu/news/en/pressroom/content/20121210IPR04506/
html/Parliament-approves-EU-unitary-patent-rules
Stephen Fishman, Copyright Your Software (Berkeley, CA: Nolo Press, 3d ed. 2001)
Pamela Samuelson et al., “A Manifesto concerning the Legal Protection of Computer Programs,” 94 Columbia Law Review 2308 (1994)
Pamela Samuelson, “Benson Revisited: The Case against Patent Protection for Algorithms and Other Computer-Related Inventions,” 39 Emory Law Journal 1025 (1990)
CONSTITUTIONAL LAW
Several areas of the U.S. Constitution touch upon problems arising in computer and Internet law. Two areas that have attracted a great deal of legislative activity and litigation are the Patent and Copyright Clause and the First Amendment. The Patent and Copyright Clause (Art. I, §8, clause 8) provides that Congress shall have the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”; this clause provides the basis for U.S. copyright and patent law.
The First Amendment provides a guarantee of freedom of expression that is at the heart of the ongoing debate over a variety of unpopular uses of the Internet, ranging from spam to pornography and racist hate Web sites. Other areas of constitutional law may also be affected by technological advances. For example, the scope of the Fourth Amendment’s protection against unreasonable searches and seizures is growing increasingly difficult to assess as information technology makes it possible for law enforcement officials to view information kept on home computers or exchanged over the Internet.
See also America Invents Act; Censorship; Child Online Protection Act; Child Pornography; Children’s Internet Protection Act; Communications Decency Act; Copyright; Digital Millennium Copyright Act; Digital Millennium Copyright Act, Title I; First Amendment; Indecency; Obscenity; Patent; Pornography; Privacy; Spam
Sources and Further Reading
Jerome A. Barron & C. Thomas Dienes, Constitutional Law in a Nutshell (St. Paul, MN: West, 7th ed. 2009)
CONSUMER BROADBAND AND DIGITAL TELEVISION PROMOTION ACT
The Consumer Broadband and Digital Television Promotion Act was a proposed law that would have greatly enhanced the content industry’s control over digital recordings purchased by consumers. Senator Fritz Hollings (D-SC) introduced the Act, originally drafted as the Security Systems and Standards Certification Act, in the Senate in 2002. The Act was another salvo in the content industry’s ongoing fight against digital piracy in general and online file-sharing in particular. Had it become law, it would have required equipment manufacturers, including computing device manufacturers, to incorporate piracy detection and prevention technology into all playback equipment, including computing devices. The Act would also have outlawed the sale or shipment of any devices not incorporating this security technology, and would have prohibited the removal or alteration of the security technology (Consumer Broadband and Digital Television Promotion Act, §§ 3–6). Violations would have been punishable under the scheme set by Title I of the Digital Millennium Copyright Act (DMCA), including fines of up to $1 million and prison terms of up to 10 years (17 U.S.C. § 1204).
The Act was unpopular not only with consumer advocates, who objected to the further restriction of users’ already-restricted ability to make copies within the limits of fair use, but also with equipment manufacturers. The law proposed to impose an expense on manufacturers in order to add a feature to their product; because the feature was one the consumers emphatically did not want, it would have been difficult or impossible for the manufacturers to recoup the added cost by passing it along to the consumers. An emotionally heated debate arose between equipment makers and the content industry; at one point Leslie L. Vadasz, then senior vice president of Intel Corporation, described the entertainment industry as “a pimple on the elephant’s rear end,” the elephant being the equipment manufacturing industry.
In a victory for equipment manufacturers and consumers, the Recording Industry Association of America (RIAA) agreed to withdraw its support for the bill in exchange for concessions on the part of the computer industry (Unexpected Harmony 2003).
Proposed Act
• Consumer Broadband and Digital Television Promotion Act, S. 2048, 107th Cong., (2d Sess. 2002), available at http://thomas.loc.gov/cgi-bin/query/z?c107:S.2048 (visited July 23, 2012)
Statute
• Digital Millennium Copyright Act, §§ 1201–1204
See also Content Industry; Copyright; Digital Millennium Copyright Act, Title I; Fair Use (Copyright); Macrovision; Piracy
Sources and Further Reading
Declan McCullagh and Milana Homsi, “Leave DRM Alone: A Survey of Legislative Proposals relating to Digital Rights Management Technology and Their Problems,” 2005 Michigan State Law Review 317 (2005)
“Unexpected Harmony: The Music and Computer Industries Make Peace, but Differences Remain,” The Economist (January 23, 2003), available at http://www.economist.com/node/1549398
“We’ve Won, for Now,” www.stoppoliceware.org (visited October 22, 2004)
CONTENT INDUSTRY
The content industry is composed of those businesses deriving their profits from the control of intellectual property rights, especially copyright in books, music, and movies. While it could be said to include the creators of content, the term is usually used to refer to the owners of intellectual property rights in that content, who may be but often are not the content creators. Typically, the content industry purchases or licenses intellectual property rights from the creators, or acquires the rights because the content is created for hire. The content industry then reproduces the content—a music CD, for example—and sells it to the public.
The business model of the content industry, especially the music sector, has been under stress in recent years. The music industry’s pre-Internet model involves the bundling of a dozen or more songs in a single package; in order to purchase one song, the consumer must also purchase a dozen or so other songs that he or she may not want.
The Internet makes it possible to exchange and record copies of individual songs. Companies not part of the traditional content industry have made varying uses of this capability. In the early days of the Internet a company called MP3.com placed tens of thousands of copyrighted songs on its servers and made them available to subscribers who could demonstrate, by placing a recorded CD in the disk drive of their computers, that they owned, or at least had access to, a legitimate (licensed) copy of the copyrighted version of the material. Representatives of the content industry immediately sued MP3.com; the federal district court for the Southern District of New York found that MP3.com’s use of its CDs exceeded the limits of fair use of copyrighted material (UMG Recordings, 92 F. Supp. 2d 349).
The content industry faced its next serious threat in Napster, a service that enabled users to view directories of music files on other users’ computers and to download those files (Napster, 239 F.3d 1004). After intensive litigation, Napster was shut down. The demise of Napster, however, led immediately and predictably to the rise of numerous imitators. Industry attempts at using the Internet to sell music failed to win consumer approval not only because of the cost of the music (which might have been counterbalanced by the greater availability of music on record company sites and the greater reliability of those sites) but also because of restrictions placed on the content, such as a restriction that the downloaded file could be played only on the computer to which it was downloaded and could not be copied for use in a home audio system or car stereo.
The first successful large-scale attempt to offer copyrighted music content with few restrictions was Apple Computer’s iTunes.com; iTunes offered (and continues to offer) individual songs, not bundled as albums, for around a dollar each, and has been popular with the public.
The long-term threat to the music content industry is not file-sharing, but the fact that it is no longer necessary for artists to sell songs to a record company for bundling and distribution to the public. Aside from preexisting contract obligations for some established artists, there is nothing to stop musicians from offering their songs directly to an online retailer such as iTunes. The music content industry may eventually find that the most valuable service it can offer musicians is not distribution but publicity.
Eventually, most sales of music may take place directly from the content creators to the consumers through such intermediaries as iTunes; however, the future of other forms of content such as books and movies is more difficult to predict. Music, after all, is cheap to create; while artistic inspiration is priceless, the actual cost of making a studio recording of a song is within the reach of most aspiring musicians. And music files are relatively small; an MP3 of a three-minute popular song may be stored in only three megabytes or so, while a noncompressed 20-minute digital recording sufficient to satisfy the most demanding audiophile can fit in a few hundred megabytes.
Movies are much larger, but increasing broadband speeds and the spread of broadband access have made them easy to copy and share online as well. But while movie piracy is significant, it has proved less of a threat to the industry than music piracy has to the music industry. There are several reasons for this. First of all, box office receipts, or more precisely rentals to cinemas, have traditionally formed a larger part of the movie industry’s revenues than concert receipts have of the music industry’s watching a movie at home is not a substitute for a night out. Second, movies are not bundled; they are sold as individual works, and the consumer is not forced to buy unwanted movies in order to buy the desired one. Third, movies recorded on DVD or videotape are relatively cheap; a movie that costs tens of millions of dollars to make typically sells for about the same price as a CD that costs tens of thousands of dollars to make. Fourth, the movie industry was quicker to realize the possibilities of digital recording than was the music industry; movie DVDs typically fill the otherwise unused space on the disk with additional content such as alternate language tracks, scenes that ended up on the cutting-room floor, interviews with the cast, video games, and assorted trivia. Fifth, most digitally recorded movies contain copy protection that it is illegal, if not particularly difficult, to circumvent. And sixth, because online movie piracy became technologically practical for most users only after online music piracy was well established, the movie industry was able to learn from the music industry’s mistakes and avoid some of its most disastrous missteps. Finally, because motion picture studios, unlike record companies, are creators as well as marketers of content, they are in a better position than the record companies to offer content directly to the public via the Internet.
Books are also somewhat less threatened by online piracy. Although an entire book will fit in a very small file, many consumers prefer printed books, and the cost of printing, let alone binding, a downloaded book generally exceeds that of purchasing the generally higher-quality printed version. In the case of e-books, retailers have been more effective than content creators or publishers in addressing piracy. Booksellers Amazon.com and Barnes & Noble have also been successful in marketing high-quality, low-cost e-book readers and then selling copy-protected content that can be directed to those readers; convenience and customer loyalty have provided some protection against piracy. Reference works, however, are more threatened, because few people read them in their entirety. High-cost reference works such as the Oxford English Dictionary have addressed this problem with copy protection on their software versions and by offering online subscription versions.
Statute
• Copyright Act of 1976, 17 U.S.C. §§ 101–1332
Cases
Federal Appellate Courts
• A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001)
Federal District Courts
• Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 259 F. Supp. 2d 1029 (C.D. Cal. 2003), vacated and remanded, 545 U.S. 913 (2005)
• UMG Recordings, Inc., v. MP3.com, Inc., 92 F. Supp. 2d 349 (S.D.N.Y. 2000)
See also Audio Home Recording Act; Copyright; Copyright Alert System; Copyright Infringement; DeCSS; Digital Audio Works; Digital Millennium Copyright Act, Title I; Digital Rights Management; E-Books; File-Sharing; File-Sharing and the Courts (Attempts to Control Technology); File-Sharing and the Courts (Litigation against Individual Users); File-Sharing (Other Media); Macrovision; P2P; Piracy; Recording Industry Association of America; Sonny Bono Copyright Term Extension Act; Stop Online Piracy Act
Sources and Further Reading
David Carnoy, “Kindle E-Book Piracy Accelerates,” CNET (February 18, 2011) available at http://reviews.cnet.com/8301-18438_7-20033437-82.html
Mark A. Lemley, “Media & Content Industry: Is the Sky Falling on the Content Industries?” 9 Journal on Telecommunications and High Technology Law 125 (2011)
Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (New York: Random House, 2001)
Robert Levine, Free Ride: How the Internet is Destroying the Culture Business and How the Culture Business Can Fight Back (New York: Doubleday, 2011)
“The Meaning of iPod,” Economist Technology Quarterly (June 12, 2004), available at http://www.economist.com/node/2724432
Trevor Merriden, Irresistible Forces: The Business Legacy of Napster and the Growth of the Underground Internet (New York: John Wiley & Sons, 2002)
“The Music Business: Universal’s Gamble,” The Economist, July 21, 2012, at 57
CONTENT SCRAMBLE SYSTEM
See DeCSS
CONTRACTS
A contract is an agreement between two or more parties that creates legally binding and enforceable rights and obligations. The advent of computer technology and Internet commerce has probably resulted in an increase in the number of contracts formed across state and national boundaries, with consequent conflict-of-laws issues. The two areas in which the law of contracts has been most heavily impacted, however, are e-commerce—now a new area of contracts law—and end-user license agreements: agreements that purport to limit the intellectual property and other rights of consumers of software.
The contracts laws of the states of the United States are for the most part based upon the Uniform Commercial Code (UCC). The UCC limits the enforceability of end-user license agreements of the “take it or leave it” variety, such as shrinkwrap or clickwrap agreements. Contracts of this sort, which are prepared by one party and in which the other party is in a weaker bargaining position and has no opportunity to negotiate terms, are known as adhesion contracts and are disfavored under the UCC. While not automatically invalid, adhesion contracts will generally not be enforced if their terms are oppressive or unconscionable or if they defeat the reasonable expectations of the weaker (or “adhering”) party. Ambiguities are generally strictly construed against the drafter and in favor of the adhering party.
The rise of e-commerce has also required changes in contract law, particularly to deal with the problem of signatures when the parties never exchange any physical documents. A federal statute, the Electronic Signatures in Global and National Commerce Act, addresses this problem by providing that in most cases “a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form” (15 U.S.C. § 7001(a)(1)).
Statute
• Electronic Signatures in Global and National Commerce Act (E-Sign), 15 U.S.C. §§ 7001 et. seq.
Uniform Acts
• Uniform Commercial Code (2001), available at http://www.law.cornell.edu/ucc/ucc.table.html (visited July 23, 2012)
• Uniform Computer Information Transactions Act (2002), available at http://www.uniformlaws.org/Act.aspx?title=Computer%20Information%20Transactions%20Act (visited July 23, 2012)
• Uniform Electronic Transactions Act (1999), available at http://uniformlaws.org/Act.aspx?title=Electronic%20Transactions%20Act (visited July 23, 2012)
See also App; Choice of Law; Clickwrap Agreement; Cloud; Contracts; E-Commerce; Jurisdiction; Recognition and Enforcement of Judgments
Sources and Further Reading
Jeffrey Ferriell & Michael Navin, Understanding Contracts (New York: Matthew Bender, 2d ed. 2004)
Christina Ramberg, Internet Marketplaces: The Law of Auctions and Exchanges Online (Oxford, UK: Oxford University Press, 2002)
Claude D. Rohwer et al., Contracts in a Nutshell (St. Paul, MN: West, 7th ed. 2010)
Bradford Stone, Uniform Commercial Code in a Nutshell (St. Paul, MN: West, 7th ed. 2008)
Julie Cromer Young, “From the Mouths of Babes: Protecting Child Authors from Themselves,” 112 West Virginia Law Review 431 (2010)
COOKIES
A cookie is a small file (usually a text file) placed by a Web page on computers visiting that page. Cookies generally contain information about the visiting computer; they may store information such as passwords and preferences or pages previously viewed. Because cookies collect information about Web browsing by individual users and because they may remain on a computer long after a page is visited, they can raise security and privacy concerns.
Cookies may be used in conjunction with adware and spyware to track a user’s online and off-line computer use; cookies may track Web pages viewed and documents opened, and the adware or spyware may then transmit that information to some third party. Cookies may also be used by Web sites to track a user’s behavior in that particular site: the documents viewed, the number of times the user visits the site, and so forth. This information may have benign or even beneficial uses; it can help a commercial site to direct a viewer to products the viewer may find interesting, and it can eliminate the necessity for retyping usernames, passwords, and addresses.
Users who feel uncomfortable with cookies can set their Web browser to refuse cookies, or to notify them when a cookie is being placed on their computer, or to delete cookies periodically (such as when the browser is closed or when the computer is shut down). The former choice will mean that some Web pages cannot be viewed at all; the latter provides a compromise for privacy-conscious Web surfers. Because cookies are within users’ control to accept or reject, U.S. law does not prohibit the use of cookies to collect information about users’ Web browsing habits, even when it is done without the users’ knowledge (DoubleClick, 154 F. Supp. 2d 497). An exception is made when the users are children, however: the Children’s Online Privacy Protection Act requires Web sites that collect information from children under the age of 13 to provide notice of what information they collect from children, how they use the information, and what their practices are regarding disclosure of the information. When the Web sites gather information that might identify or permit communication with the child, they must first obtain the verifiable consent of the child’s parents (15 U.S.C. § 6502). And U.S. companies wishing their Web sites to comply with EU laws must keep in mind that in most cases EU law prohibits the placing of cookies on users’ computers unless the user opts in. (This differs from the approach of U.S. law, which allows cookies to be placed unless the user opts out.)
Case
• In re DoubleClick, Inc. Privacy Litigation, 154 F. Supp. 2d 497 (S.D.N.Y. 2001)
Statute
• Children’s Online Privacy Protection Act, 15 U.S.C. §§ 6501–6506
European Union Directive
• Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, 2009 O.J. (L 337) 11, art. 2(5)
See also Adware and Spyware; Children’s Online Privacy Protection Act; Data Mining; Doubleclick; Privacy
Sources and Further Reading
Robert Bond, “The EU E-Privacy Directive and Consent to Cookies,” 68 Business Lawyer 215 (2012)
Terence Craig & Mary Ludloff, Privacy & Big Data (Sebastopol, CA: O’Reilly Media, Inc. 2011)
Stephanie A. Kuhlmann, “Do Not Track Me Online: The Logistical Struggles over the Right ‘To Be Let Alone’ Online,” 22 DePaul Journal of Art, Technology & Intellectual Property Law 229 (2011)
Saira Nayak, “How This Cookie Crumbled: Deciphering the Compliance Obligations around the EU’s Cookie Directive,” Antitrust Source 1 (December 2012)
Daniel Solove and Paul M. Schwartz, Privacy Law Fundamentals (Portsmouth, NH: IAPP Publication, 2011)
COPYLEFT
See Open Source
COPYRIGHT
Copyright is the main form of protection of the rights of authors of computer programs and Internet content; as the name implies, it provides the holder, for a limited time, with a monopoly on the right to make copies of the copyrighted work. Under the Copyright Act of 1976, “original works of authorship fixed in any tangible medium of expression” may be copyrighted (17 U.S.C. § 102(a)); there is no copyright in U.S. government works (17 U.S.C. § 105). In other words, in order to be eligible for copyright protection the thing to be protected must be original, it must be a work of authorship, and it must be fixed in a tangible medium. If a work meets these three requirements, the copyright holder will have the exclusive right to reproduce, distribute, and publicly display or perform the work (including, in the case of sound recordings, performance by digital audio transmission), as well as to prepare derivative works based upon the work (17 U.S.C. §§ 103, 106). For works created after January 1, 1978, this exclusive right will endure for 70 years after the death of the author or, in the case of a work with multiple authors, for 70 years after the death of the last surviving author. For works made for hire and works published anonymously or under a pseudonym, the copyright will endure for 95 years from the date of first publication or 120 years from the date of creation, whichever is shorter (17 U.S.C. § 302).
History
The concept of copyright in modern law owes its existence to an early revolution in information technology: the invention of the printing press. Anglo-American law’s first sweeping attempt to control the reproduction of books came in the century after the introduction of the printing press to Britain, with the granting of a royal monopoly on book publishing to the Stationer’s Company in 1557. This monopoly lasted until 1695. In the next 15 years alternative publishers flourished; the Stationer’s Company lobbied for further legal protection, and in 1710 the British Parliament passed its first copyright act, the Statute of Anne (Leaffer 2010).
The Statute of Anne preserved the rights of the Stationer’s Company in works already published for an additional 21 years, until 1731. But it effectively undermined the position of the Stationer’s Company by viewing copyright as stemming from the act of creation of the work, rather than from the act of publishing; the purpose of the statute was to encourage “learned men to compose and write useful work.” For works created after the date of the statute, copyright was to endure for 14 years and was renewable for a second 14-year term if the author was still alive at the end of the first. For the next 64 years, however, the Stationer’s Company managed to convince the British courts that its rights in the works it published, at least, were perpetual; it was not until 1774 that the House of Lords established, in the case of Donaldson v. Beckett, that the term of copyright is invariably finite (Leaffer 2010).
In the United States, the establishment of a law of copyrights was one of the powers granted to Congress by the Constitution. The Patent and Copyright Clause provides that Congress shall have the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (Art. I, § 8, cl. 8). In the following year, 1790, the country’s first Copyright Act established a 14-year copyright, renewable once for an additional 14 years, in books, charts, and maps. This copyright was held by the author or those to whom the author might assign it. The Act was readily adapted to cover new forms of material in response to rapid technological change; for example, in 1865 photographs became copyrightable. Nonetheless, over the following century or so the Act, despite two major overhauls, became increasingly unworkable. The U.S. law of copyright was increasingly out of step with that developing in the rest of the world, and trade in information was increasingly becoming international (Leaffer 2010).
The Copyright Act of 1909, the culmination of a work begun four years earlier at the urging of President Theodore Roosevelt, failed to solve these problems. It doubled the term of copyright protection—from two 14-year terms to two 28-year terms—but failed to bring U.S. copyright law into compliance with the international norms set forth in the 1886 Berne Convention. Major areas of difference were that U.S. law continued to require compliance with certain formalities before a copyright could be claimed, and that U.S. law granted a shorter term of copyright than the Berne Convention’s minimum of the lifetime of the author plus 50years. A domestic problem was created by the 1909 Act’s grant of copyright to only a few narrowly defined categories of unpublished works; as a result, an unwieldy parallel system of state common-law copyright protection was necessary to protect copyrights in most unpublished works (Leaffer 2010).
As with the 1790 Act, the 1909 Act evolved to take into account new forms of recorded information. Motion pictures, for example, were added to the list of copyrightable works in 1912. But the difficulties of the 1909 Act were apparent from its inception, and in 1955 Congress began a two-decades-long revision process, culminating in the passage of the Copyright Act of 1976 (Leaffer 2010).
The 1976 Act was designed to bring U.S. law more into line with international practice. The United States, as the world’s largest exporter of intellectual property, had far more to gain than to lose from complying with international norms and joining the Berne Convention; its failure to do so had been costly and inconvenient for the U.S. content industry.
The 1976 Act preempted state law, eliminating the problem of common-law copyright (17 U.S.C. § 301). It eliminated the renewable 28-year term of copyright, replacing it with the Berne Convention minimum of the lifetime of the author plus 50 years, and with a term of 75 years from publication or 100 years from creation, whichever was less, for anonymous or pseudonymous works and works for hire. It established the broad and flexible subject matter categories still in use. It defined the rights granted to copyright holders, and the limitations on those rights, far more clearly than had been done previously. It failed in one notable respect to bring U.S. law into compliance with Berne Convention standards: formalities regarding registration and the affixing of copyright notice were still required. This problem was resolved with the Berne Convention Implementation Act of 1988, however, and the United States finally joined the Berne Convention, more than a century after it first came into existence. Legislative tinkering has continued; revisions include the Sonny Bono Copyright Term Extension Act, which increases the duration of copyright terms to the lifetime of the author plus 70 years, with a term of 95 years from publication or 120 years from creation, whichever is less, for anonymous or pseudonymous works and works for hire (17 U.S.C. §§ 320, 304); the No Electronic Theft Act, which allows the government to prosecute those who give away copies of copyrighted material as well as those who sell it (17 U.S.C. §§ 101, 506 & 507); and the Digital Millennium Copyright Act, which makes many changes to accommodate the increase in electronic exchange of information (17 U.S.C. §§ 512, 1201–1204).
The last of these three reforms was at least partially driven by the need to keep U.S. law in compliance with international agreements, while the first was partially driven by concerns about the value of U.S. intellectual property exports and the duration of copyright protection in the EU. To allow valuable copyrights to fall into the public domain in the United States after a term of life plus 50 years would bring them into the public domain in Europe as well, because even though the EU has adopted a term of life plus 70 years, the Berne Convention allows it to adopt another state’s term when that state’s copyright law provides a term that is in compliance with the Berne Convention but shorter than its own. These recent changes to U.S. copyright law in response to international concerns demonstrate the increasingly international nature of copyright law. Because information can now be exchanged quite freely across international borders, protection of copyright must be international in nature if it is to succeed at all.
The 1909 and the original 1976 Act remain important, however, as they may affect rights to works created before January 1, 1978. Determining exactly which copyright term applies to a particular work is complex and depends on a variety of factors, including the exact date the work was first created or published, whether copyright notice was affixed, and whether the original copyright was renewed.
Originality
The level of originality required for copyright protection is low, but not nonexistent. For example, an alphabetical listing of names in a telephone directory is not copyrightable. The arrangement and page numbering of cases in a case reporter may be, however. The mere fact that an author has put effort into assembling a collection of information does not confer copyright; originality, rather than the “sweat of the brow,” is what is protected (Feist, 499 U.S. 340).
The scènes a fàire doctrine provides that work that is too dependent on basic, common ways of treating particular subject matter is not copyrightable. For example, a movie about Germany in the 1930s may include images of German soldiers drinking in beer halls, saying “Heil Hitler” and singing the German national anthem. Because these images are a standard part of any depiction of Germany in that era, they cannot be copyrighted (Hoehling, 618 F.2d 972). Similarly, any video game about baseball, football, or basketball will necessarily follow a certain sequence of play and a certain point-scoring system; any martial arts video game will include certain moves. These elements are scènes a fàire and not copyrightable (Data East, 862 F.2d 204).
Works of authorship
Works of authorship include literary, musical, and dramatic works, pantomimes and choreographic works, works traditionally thought of as “art” (pictorial, graphic, and sculptural works), motion pictures and other audiovisual works, and sound recordings. Copyright will not protect ideas, although when an idea can be expressed in only a limited number of ways, the idea and the expression merge and the expression is uncopyrightable. Nor will copyright protect procedures, processes, systems, or methods of operation (17 U.S.C. § 102). Computer operating systems, however, are not “mere methods of operation” within the meaning of the Copyright Act and are thus copyrightable (Apple Computer, 714 F.2d 1240). The exact boundary between a copyrightable computer program and a noncopyrightable “method of operation” is not always easy to determine. For example, threshold values used to determine the best time to replace a hard disk drive are not mere methods of operation and are copyrightable, but the menu command hierarchy of a computer program is a method of operation and not copyrightable (Compaq, 908 F. Supp. 1409; Lotus, 49 F.3d 807).
Fixed in a tangible medium of expression
The most common forms in which computer programs are recorded—magnetic and optical storage—cannot be read without mechanical aid. Information recorded in such a way is nonetheless “fixed in a tangible medium of expression.”
International copyright protection
Even before the advent of the Internet copyright required international protection. Copyrights are granted by national governments; in the absence of a treaty obligation to do so, countries can and will disregard copyrights issued by their neighbors. Entire industries depend on international recognition of copyrights; if the copyright to the Harry Potter series were honored only in Britain, or copyrights in Hollywood films were honored only in the United States, the greater part of the value of those pieces of intellectual property would be lost.
The need for an international copyright regime was already evident by 1878, when Victor Hugo and others began lobbying for the adoption of an international convention. As a result, the Berne Convention for the Protection of Literary and Artistic Works was adopted in 1886, and has evolved through numerous revisions to become the cornerstone of the modern international copyright regime. For over a century, however, the United States was unable to join the convention because of differences between U.S. copyright law and the Berne Convention’s requirements. As a result, a parallel system of bilateral and multilateral treaties arose to protect U.S. copyright interests abroad and foreign copyright interests in the United States; these treaties, some of which are still in force, are now chiefly of historical interest.
The Internet era, with its greatly expanded exchange of copyrighted information across national borders, has seen the adoption of several new international copyright treaties. In addition to the Berne Convention, important treaties to which the United States is a party include the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the World Intellectual Property Organization (WIPO) treaties. TRIPS is an annex to the World Trade Organization (WTO) treaty; it addresses many types of intellectual property and provides, through the WTO, enforcement and dispute resolution mechanisms that other treaties lack. The two 1996 WIPO treaties, although they did not enter into force until 2002, led to the adoption of Title I of the DMCA of 1998, among the most significant changes to U.S. copyright law in the decades since the United States joined the Berne Convention. Further changes seem likely; in addresses at Columbia Law School and before the U.S. Congress in March 2013, U.S. Register of Copyrights Maria Pallante called for a new copyright act, saying “I think it is time for Congress to think about the next great copyright act, which will need to be more forward thinking and flexible than before. . . . [A]uthors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated.”
Constitution
• United States Constitution, Article I, Section 8, Clause 8
Statute
• Copyright Act of 1976, 17 U.S.C. §§ 101–1332
Treaties
• Agreement on Trade-Related Aspects of Intellectual Property Rights, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, April 15, 1994, 33 I.L.M. 81 (1994)
• Convention Concerning the Creation of an International Union for the Protection of Literary and Artistic Works (Berne Convention), September 9, 1886, as last revised at Paris, July 24, 1971 (amended 1979), 25 U.S.T. 1341, 828 U.N.T.S. 221
• WIPO Copyright Treaty, December 20, 1996, 36 I.L.M. 65 (1997)
• WIPO Performance and Phonograms Treaty, December 20, 1996, 36 I.L.M. 76 (1997)
European Union Materials
• Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the Term of Protection of Copyright and Certain Related Rights, 2006 O.J. (L 372) 12–18
• Council Directive 93/98/EEC of 29 October 1993 Harmonizing the Term of Protection of Copyright and Certain Related Rights, 1993 O.J. (L 290)
Cases
England
• Donaldson v. Beckett, 2 Bro. P.C. 129, 1 Eng. Rep. 837 Burr. (4th ed.) 2408, 98 Eng. Rep. 257 (H.L. 1774)
Supreme Court
• Eldred v. Ashcroft, 537 U.S. 186 (2003)
• Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991)
• Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834)
Federal Appellate Courts
• Apple Computer v. Franklin Computer, 714 F.2d 1240 (3d Cir. 1983), abrogated by In re Bilski, 545 F.3d 943 (Fed. Cir. 2008)
• Data East USA v. Epyx, 862 F.2d 204 (9th Cir. 1988)
• Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir. 1980)
• Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965 (9th Cir. 1992)
• Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992)
• Williams Electronics, Inc. v. Arctic International, Inc., 685 F.2d 870 (3d Cir. 1982)
Federal Trial Courts
• Compaq Computer Corp. v. Procom Technology, Inc., 908 F. Supp. 1409 (S.D. Tex. 1995)
• Oasis Publishing Company, Inc. v. West Publishing Company, 924 F. Supp. 918 (D. Minn. 1996)
See also App; Berne Convention; Content Industry; Copyright Alert System; Copyright Infringement; DeCSS; Digital Millennium Copyright Act; Digital Millennium Copyright Act, Title I; Digital Millennium Copyright Act, Title II; Digital Millennium Copyright Act, Title III; Digital Millennium Copyright Act, Title IV; Digital Millennium Copyright Act, Title V; Digital Rights Management; Fair Use (Copyright); Fan Works; File-Sharing; File-Sharing and the Courts (Attempts to Control Technology); File-Sharing and the Courts (Litigation against Individual Users); File-Sharing (Other Media); International Copyright Protection; Moral Rights; Open Source; Piracy; Public Domain; Public Domain Enhancement Act; Sonny Bono Copyright Term Extension Act; Stop Online Piracy Act; TRIPS; Universal Copyright Convention; WIPO; WIPO Copyright Treaty; WIPO Performance and Phonograms Treaty
Sources and Further Reading
“A Fine Balance: How Much Copyright Protection Does the Internet Need?” Economist Technology Quarterly (January 25, 2003), available at http://www.economist.com/node/1534271
Craig Anderson, “Betting on a Retrial, Oracle Defers Copyright Damages in Java Code Case,” Los Angeles Daily Journal, May 17, 2012, at 4
Craig Anderson, “Java Language Can’t Be Copyrighted, Judge Rules,” Los Angeles Daily Journal, June 1, 2012, at 1
Craig Anderson, “Jury Hands Google a Sweeping Win in Java Trial,” Los Angeles Daily Journal, May 24, 2012, at 1
Tanya Aplin, Copyright Law in the Digital Society: The Challenges of Multimedia (Oxford, UK: Hart Publishing, 2005)
Richard Chused, ed., A Copyright Anthology: The Technology Frontier (Cincinnati: Anderson Publishing Co., 1998)
“Copyright and the Internet: Letting the Baby Dance,” The Economist, September 1, 2012, at 60
“Copyrights: A Radical Rethink,” The Economist (January 25, 2003), available at http://www.economist.com/node/1547223
Anthony D’Amato & Doris Estelle Long, eds., International Intellectual Property Anthology (Cincinnati: Anderson Publishing, 1996)
Michael H. Davis & Arthur Raphael Miller, Intellectual Property: Patents, Trademarks, and Copyright in a Nutshell (St. Paul, MN: West, 4th ed. 2007)
Jane C. Ginsburg, “No ‘Sweat’? Copyright and Other Protection of Works of Information after Feist v. Rural Telephone,” 92 Columbia Law Review 338 (1992)
Marshall Leaffer, Understanding Copyright Law (New Providence, NJ: LexisNexis, 5th ed. 2010)
Emmanuel Legrand, “Time to Think about ‘The Next Great Copyright Act’ in the US?” Flashlight 2013 (April 19, 2013), available at http://flashlight2013.com/blog/b_25960_time_to_think_about_the_next_great_
copyright_act_in_the_us.html (visited May 13, 2013)
Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (New York: Penguin, 2004)
Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy (New York: Penguin Books, 2008)
Robert Levine, Free Ride: How the Internet is Destroying the Culture Business and How the Culture Business Can Fight Back (New York: Doubleday, 2011)
Jessica Litman, Digital Copyright: Protecting Intellectual Property on the Internet (Amherst, NY: Prometheus, 2000)
Robert P. Merges & Jane C. Ginsburg, Foundations of Intellectual Property (New Providence, NJ: LexisNexis, 2006)
David Nimmer, “Codifying Copyright Comprehensibly,” 51 UCLA Law Review 1233 (2004)
William Patry, How to Fix Copyright (Oxford, UK: Oxford University Press, 2011)
Aaron Schwabach, Fan Fiction and Copyright: Outsider Works and Intellectual Property Protection (Farnham, Surrey, UK: Ashgate Publishing, 2011)
Richard Stim, Getting Permission: How to License & Clear Copyrighted Materials Online & Off (Berkeley, CA: Nolo Press, 4th ed. 2010)
Richard Stim, Patent, Copyright & Trademark: An Intellectual Property Desk Reference (Berkeley, CA: Nolo Press, 12th ed. 2012)
Adam D. Thierer & Wayne Crews, Copy Fights: The Future of Intellectual Property in the Information Age (Washington, D.C.: Cato Institute, 2002)
Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: New York University Press, 2001)
COPYRIGHT ALERT SYSTEM
The Copyright Alert System is an attempt by a group of content industry organizations and companies and ISPs to address the content industry’s ongoing file-sharing problem through a combination of education and penalties imposed on individual users, up to and including denial of Internet access. The actual work of administering the Copyright Alert System is carried out by the Center for Copyright Information (CCI), an organization set up for that purpose. The members of the CCI include the Motion Picture Association of America (MPAA), the RIAA, and other content-industry groups, as well as ISPs AT&T, Cablevision, Time Warner, Verizon, and Comcast. The CCI in turn contracts much of the work of detecting infringing BitTorrent activity to MarkMonitor, a private company.
As the CCI’s Web site somewhat condescendingly describes the practice, artists, moviemakers, and other owners of content join public peer-2-peer (P2P) networks to see if the music, movies, and TV shows they have made available are being shared without permission and in violation of U.S. copyright law. If they notice that a file is being shared illegally, they notify the appropriate ISP and that ISP, in turn, passes on that notice to their subscriber as a Copyright Alert (Center for Copyright Information 2013).
If CCI identifies, or receives a report from MarkMonitor identifying, an infringing BitTorrent activity, it will use a “six strike” process: After the first detected infringing (or possibly infringing) use, the CCI will notify the user’s ISP, which will then send the user (the ISP’s subscriber) an “alert.” The first alert is informational and educational only; the ISP and the CCI take no other action. If a second infringing use is detected, the ISP will send a second alert, similar to the first. If the infringing use continues and the ISP sends a third or fourth alert, the ISP will ask its subscriber to acknowledge receipt of the alert. With the fifth alert, the ISP may take “mitigation measures.” According to the CCI, these may include the following:
• A temporary reduction in Internet speed;
• A temporary downgrade in Internet service tier; or
• Redirection to a landing page for a set period of time, until a subscriber contacts the ISP or until the subscriber completes an online copyright education program (Center for Copyright Information 2013).
After the sixth alert, the ISP must (not may) take mitigation measures.
Although the CCI does provide for review of alerts possibly sent in error, the review process is not likely to mollify innocent recipients:
Initial educational Alerts are not eligible for the Independent Review Process. If infringing activity on your account continues and you reach the mitigation stage (where your ISP is going to take corrective measures), you will be offered the opportunity to ask for a review (Center for Copyright Information 2013).