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Since its inception, the Internet has posed problems of who owns the content. Over the years, the government has struggled to find ways to introduce copyright protections into the online environment because, unlike other forms of media, the Internet enables users to make an unlimited number of copies of material and to transmit that information around the world.Bill Rosenblatt, “The Digital Object Identifier: Solving the Dilemma of Copyright Protection Online,” Journal of Electronic Publishing 3, no. 2 (1997), http://quod.lib.umich.edu/cgi/t/text/text-idx?c=jep;view=text;rgn=main;idno=3336451.0003.204. In this section, we explore the unique challenges presented in dealing with online copyright and intellectual property and the U.S. government’s role in regulating those fields.
Congress passed the Digital Millennium Copyright Act in 1998 to establish a protocol for online copyright matters. Yet the nature of the Internet causes very different copyright and intellectual property issues than older forms of media do. Because of the ease of sharing information online, for example, the DMCA has not worked as Congress expected.Electronic Frontier Foundation, “Digital Millennium Copyright Act,” http://www.eff.org/issues/dmca. Copying and sharing materials online is relatively simple and, as such, piracy and rights infringement run rampant. In fact, many have argued that despite the DMCA’s attempt to stop piracy, in practice, it has done nothing.Electronic Frontier Foundation, “Digital Millennium Copyright Act,” http://www.eff.org/issues/dmca. Additionally, because information is disseminated so rapidly online, piracy opponents struggle with determining the rightful owner of a particular copyright.
The DMCA and its role in Internet policing have frustrated many online users and watchdog groups. The Electronic Frontier Foundation (EFF) claims that “the DMCA has become a serious threat that jeopardizes fair use, impedes competition and innovation, chills free expression and scientific research, and interferes with computer intrusion laws.”Electronic Frontier Foundation, “Digital Millennium Copyright Act,” http://www.eff.org/issues/dmca. In 2004, comic book company Marvel Entertainment sued game publishers NCsoft and Cryptic for copyright infringement in their online game City of Heroes. Marvel argued that players could use the character customization system in City of Heroes to make characters look almost identical to Marvel characters.David Jenkins, “Marvel Sues City Of Heroes Creators,” Gamasutra, November 12, 2004, http://www.gamasutra.com/php-bin/news_index.php?story=4548. Situations like this led groups such as the EFF to publically call for DMCA reform. Such disputes serve as reminders of the challenges inherent in issuing copyrights and intellectual property rights for the online industry.
Certainly, the DMCA brought about major transformations by establishing copyright protection guidelines for the digital arena. However, in 1996—prior to the passage of the DMCA—the World Intellectual Property Organization (WIPO) established two treaties designed to “update and supplement the major existing WIPO treaties on copyright and related rights, primarily in order to respond to developments in technology and in the marketplace.”World Intellectual Property Organization, “Frequently Asked Questions,” http://www.wipo.int/copyright/en/faq/faqs.htm#P7_220. The first of these, the WIPO Copyright Treaty (WCT), was created to protect authors of literary and artistic works, including computer programs, original databases, and fine art.World Intellectual Property Organization, “Frequently Asked Questions,” http://www.wipo.int/copyright/en/faq/faqs.htm#P7_220. The second, the WIPO Performances and Phonograms Treaty (WPPT), deals with “related rights,” or rights connected to copyright. This law was created to protect the rights of performers and producers of sound recordings.World Intellectual Property Organization, “Frequently Asked Questions,” http://www.wipo.int/copyright/en/faq/faqs.htm#P7_220. These treaties both ensure basic rights, such as compensation and acknowledgement for those who create works, and extend further protections.World Intellectual Property Organization, “Frequently Asked Questions,” http://www.wipo.int/copyright/en/faq/faqs.htm#P7_220.
Supported by the WIPO and the DMCA, new forms of communication now enjoy copyright protections. Copyright laws cover blogs and website content, provided that these sites contain original writing.U.S. Copyright Office, “What Does Copyright Protect?” http://www.copyright.gov/help/faq/faq-protect.html#what_protect. Despite these developments, however, the Internet still poses challenges for copyrighted material. Because the web changes so quickly, maintaining copyright protection with the Copyright Office can be difficult. Presently, a work must be fixed and in a tangible form to be protected under copyright. Different, altered versions of the same work might not be covered under an original filed copyright claim. As such, authors publishing online must be careful to ensure that their work is protected.
Widespread piracy problems arose during the late 1990s with the popularization of technology allowing peer-to-peer (P2P) music sharing. Suddenly, software such as Napster, Scour, Aimster, AudioGalaxy, Morpheus, Grokster, Kazaa, iMesh, and LimeWire popped up on computers everywhere, allowing access to free music around the world—and fueling online piracy. However, in 2003, the Recording Industry Association of America (RIAA) put the laws established by the DMCA into practice and began a campaign to stop music piracy. In response to the growing number of users, the organization announced that it had been gathering evidence against users sharing music on P2P networks. Rather than go after the software engineers, “the RIAA investigators targeted ‘uploaders’—individuals who were allowing others to copy music files from their ‘shared’ folders.”U.S. Copyright Office, “What Does Copyright Protect?” http://www.copyright.gov/help/faq/faq-protect.html#what_protect.
This data collection led to the RIAA filing more than 250 lawsuits against individuals in what has been called “an unprecedented legal campaign against its own customers.”Electronic Frontier Foundation, “RIAA v. The People,” http://www.eff.org/riaa-v-people. Among the first of these lawsuits was one against a 12-year-old girl who had to pay $2,000 and publicly apologize to settle her case. Since then, the recording industry has filed, settled, or threatened legal actions against over 28,000 individuals.Electronic Frontier Foundation, “RIAA v. The People,” http://www.eff.org/riaa-v-people. Many college students have been targeted. Recently, the popular torrent site The Pirate Bay found itself under attack for allowing users to search for pirated copies of material. This case mirrors the case of Viacom versus YouTube, because the prosecution argued that The Pirate Bay was responsible for the material its users posted and downloaded. These lawsuits raise the question of whether websites are responsible for the actions of their users, an issue that looks to be central to future Internet legislation.Mike Masnick, “Pirate Bay Loses a Lawsuit; Entertainment Industry Loses an Opportunity,” Techdirt, April 17, 2009, http://www.techdirt.com/articles/20090417/0129274535.shtml.
The Internet is a relatively new form of media, but it is not exempt from media laws. Terms of service agreements, as well as legislation such as the 1986 Computer Fraud and Abuse Act, regulate Internet use. As you will see in the following case studies, when it comes to criminal use, the Internet is not as anonymous as it seems.
All software and most Internet sites have a terms of serviceLegally binding rules that an individual must adhere to in order to use an online service or software program. agreement to which its users must comply. Terms of service (TOS) are legally binding rules that an individual must adhere to in order to use a particular piece of software or service. iTunes, for instance, makes users agree to use their downloadable material for noncommercial use only and states that Apple is not responsible for lost or corrupted files. Anyone who has installed a new piece of software or logged on to social networking sites has agreed to a TOS. Entrance into these sites or use of a program typically requires a user to read through legal guidelines and then click a box agreeing to abide by the stated rules. You likely have done so numerous times.
Deterred by the length and legal jargon of the standard TOS, however, many people skip to the end and simply accept the terms without reading them carefully. iTunes, for instance, has a clause that states the following:
You may not use or otherwise export or re-export the Licensed Application [iTunes] except as authorized by United States law … the Licensed Application may not be exported or re-exported … into any U.S.-embargoed countries … You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.Apple, “Terms and Conditions,” http://www.apple.com/legal/itunes/us/terms.html.
While not all Terms of Service are as extensive, an individual’s breach of any TOS may result in suspension, restriction, or cancellation of account privileges, depending on the severity of the offense. As individuals become increasingly reliant on Internet services such as email, calendars, and social networks, the potential for disruption is enormous.
In 2008, a compelling court case arose regarding TOS violation. Lori Drew, a 49-year-old woman, was accused of using a fake MySpace account to convince 13-year-old Megan Meier to commit suicide. How did it come about? After Drew’s daughter had a confrontation with Meier, Drew created an account pretending to be a teenage boy. At first she used the persona to flirt with Meier and uncover information about the teenager’s social life and relationship to her daughter. Later, when Drew decided she had enough information, she broke off her friendship, telling Meier that the world would be better off without her. Later that day, a distraught Megan Meier hanged herself.Jennifer Steinhauer, “Verdict in MySpace Suicide Case,” New York Times, November 26, 2008, http://www.nytimes.com/2008/11/27/us/27myspace.html. After Lori Drew’s identity was revealed, Meier’s shocked parents filed charges against her. Despite the tragic events, whether Drew had actually committed a crime remained questionable. Eventually, prosecutors decided the following:
Since there were no laws that applied in Missouri, the state where this tragedy occurred, [Drew] will face trial in California (the home of MySpace) where she will be charged with—of all things—TOS violations. Creating a false identity goes against MySpace’s terms of service and … as a result she will be facing 1 count of conspiracy and 3 counts of accessing a computer without authorization.Steve Spalding, “Lori Drew Facing Trial for TOS Violation,” How to Split an Atom, November 21, 2008, http://howtosplitanatom.com/the-news/lori-drew-facing-trial-for-tos-violation/.
The case is complicated and the charge unprecedented. As one author writes, “This raises the questions as to how much weight do online ‘contracts’ hold.”Steve Spalding, “Lori Drew Facing Trial for TOS Violation,” How to Split an Atom, November 21, 2008, http://howtosplitanatom.com/the-news/lori-drew-facing-trial-for-tos-violation/.
Prosecutors charged Drew under the Computer Fraud and Abuse Act (CFAA), although that law is designed primarily to reduce hacking into computer systems. In August 2009, a jury found Drew guilty of “misdemeanor counts of unauthorized access,” but commented that “the CFAA was not devised as a vehicle for criminalizing simple contractual violations on the Internet.”Ryan Paul, “Judge: TOS Violations Not a Crime in Teen Suicide Case,” Ars Technica (blog), August 31, 2009, http://arstechnica.com/tech-policy/news/2009/08/judge-says-tos-violations-arent-a-crime-acquits-lori-drew.ars. Although many believe that prosecutors pushed the charge too far, the Drew case brought TOS agreements to the attention of the public, shedding light on the complicated laws associated with Internet use.
Although cases such as Drew’s have brought about unexpected challenges, other online cases have had less ambiguous results. One newly clarified aspect of online law involves the use of the Internet to commit a crime. Regardless of the supposed anonymity of online use, law enforcement agencies and courts can requisition Internet Protocol (IP) addresses of suspected lawbreakers and trace their computers to discover their identities. This practice has brought many individuals to trial for criminal offenses committed over the Internet.
In 1998, a federal court found a 21-year-old Los Angeles man, Richard Machado, guilty of sending racist death threats to 59 Asian students. This case set a precedent because Machado was the first person to be convicted of an online hate crime for sending the message via email. Machado had used a campus computer to send an email to a group of mostly Asian students at University of California, Irvine, saying, “I personally will make it my life career to find and kill every one of [you].” Machado, a former UC Irvine student, signed the email “Asian Hater.” Prosecutors charged Machado with sending the threat based on the recipients’ race or ethnicity and interfering with their right to attend a public university.Courtney Macavinta, “Conviction in Online Threat Case,” CNET, February 11, 1998, http://news.cnet.com/Conviction-in-online-threat-case/2100-1023_3-208044.html.
The case signaled a new legal development because it was the first trial regarding hate crimes online. Prosecutor Michael Gennaco said of Machado’s sentencing, “The jury has spoken that a line needs to be drawn in cyberspace. If you cross that line, you’ll be subjected to the same criminal penalties you would be as if you use a telephone or post mail to do these kinds of acts.”Courtney Macavinta, “Conviction in Online Threat Case,” CNET, February 11, 1998, http://news.cnet.com/Conviction-in-online-threat-case/2100-1023_3-208044.html. Internet law specialists agree with Gennaco that the Internet is not and should not be treated differently from other communication methods; something posted online carries the same weight as a phone conversation or face-to-face interaction. This means that online anonymity is, in fact, not anonymous.
Despite the precedent of Machado’s case, many people still mistakenly believe that the Internet will protect them from prosecution. Such was the case of Walter Edward Bagdasarian, who discovered that the government can trace supposedly anonymous posts using IP addresses. U.S. Secret Service agents arrested Bagdasarian, a Southern California man, in 2009 for “posting a racist note to a Yahoo message board in October  expressing displeasure over Barack Obama’s candidacy, and predicting ‘he will have a 50 cal in the head soon.’”Kevin Poulsen, “Online Threat to Kill Obama Leads to Arrest,” Wired, January 9, 2009, http://www.wired.com/threatlevel/2009/01/threat/. The case exemplifies both the ease with which authorities can and do trace criminal behavior online and their propensity to take such cases seriously.
What does the future hold for Internet legislation? Many say that it will closely mirror that of other media outlets. Already there have been cases regarding Internet monopolies, defamation of users, and copyright infringement on message boards and personal websites.Netlitigation, “Internet Law: News, Suits, and Discussion,” http://www.netlitigation.com/netlitigation/. Others argue that Internet regulation should take into account the differences between the use of the Internet and the use of other media; for example, an Arizona radio station that violates broadcasting laws is tried in Arizona, but where should an Internet podcaster be charged? If a user posts information on a community forum, is it protected under copyright? Does email spam fall under the same regulations as telemarketing? What privacy rights should Internet users have? As the Internet grows and more issues are taken to court, authorities must come to terms with media issues in a constantly changing digital landscape.
Thoroughly read a terms of service agreement from a major website you use frequently, such as a social networking site. How do the terms fit with your expectations? Is there anything that you find surprising? Is there anything that causes any concerns? With this in mind, answer the following short-answer questions. Each response should be a minimum of one paragraph.