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Friday, 20 May 2016 03:16

About Internet Law

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INTERNET LAW

Courts around the world are creating Internet law right now--a process that is both exciting and frightening to watch. Unlike other areas of commerce that can turn to historical traditions to help settle disputes and guide the development of the law, the law of the Internet has no history to fall back on. "Cyber law" is instead being developed by judges who must do their best to fit legal disputes on the Internet into preexisting legal frameworks. As a result, the legal principles governing conduct and commerce in cyberspace are still in a state of flux.

DISCOVERY ON THE INTERNET

Perhaps the most significant reason for the number of trademark allegations involving the Internet is that activity on the Internet and the World Wide Web is so easy to monitor. Previously, a trademark owner in Minnesota would probably be unaware of what an individual or small company may be doing in California. With the Internet, that same trademark owner can do a complete Internet search for users of its marks in a matter of seconds. As a result, trademark owners are discovering more infringers of trademarks, including both intentional and unintentional infringers.

This ease of discovery, however, is a two-edged sword for trademark owners. Because one of the obligations of a trademark owner is to police use of its mark, the ease of Internet searching may be placing the requirement on trademark owners to police the Internet routinely. If an infringer of a mark is known to the trademark owner (or should have been known through routine diligence) and is allowed to go unchallenged, the trademark owner could lose its trademark.

COPYRIGHT LIABILITY CONCERNS FOR INTERNET SERVICE PROVIDERS

A party is guilty of copyright infringement if they violate one of the five exclusive rights given to copyright owners under the Copyright Act (as is explained in more detail in the BitLaw discussion on the scope of copyright protection). Included in those rights are the right to prevent others from reproducing (or copying) a work, publicly displaying a work, or distributing a work. It is clear that on-line service providers will be liable for copyright infringement if they are directly involved in the copying of protected material. For example, if a service provider were to place an electronic copy of the latest best-selling novel (or a pirated copy of Microsoft Word) on their bulletin board or web site, they would be guilty of copyright infringement. In these circumstances, an ISP is no different than any other party.

However, Internet Service Providers can be found liable for copyright infringement even where they are not directly engaged in the copying of protected materials. For instance, ISPs are responsible for equipment, such as a computer operating as a server, that is capable of making copies without any direct involvement of any person. Consequently, one relevant question is: "when is an ISP liable under copyright law for the copies made by its equipment?" As one example, the newsgroup servers controlled by ISPs make thousands of copies of newsgroup files everyday. Although some of these files undoubtedly contain copyrighted materials, no ISP has yet to be found guilty of copyright infringement merely for the unknown, autonomous action of their newsgroup servers.

Nevertheless, an ISP must be aware of the theories under the Copyright Act by which a party can be held liable for infringement even if they do not directly take part in the copying or distribution of a work. Under the concept of "contributory infringement," a party may be guilty of copyright infringement when they cause or contribute to the infringing conduct of another with knowledge of the other party's infringing activities.

In addition, under the concept of "vicariously liability," a person may be liable for the infringing actions of another if the person has the right and ability to control the infringer's acts and receives a direct financial benefit from the infringement. Vicarious liability can be established without the defendant having actual knowledge of the infringer's activity. Under these two theories, it is possible for an ISP to be held liable for copyright infringement, even if the ISP was not directly involved in making the infringing copy.

COPYRIGHT LIABILITY--LEGAL CASES

The potential liability of ISPs for the activities of others was explored in Religious Technology Center v. Netcom, a California case decided in 1995. In that case, files containing copyrighted materials owned by the Church of Scientology were placed on an Internet newsgroup through a newsgroup server controlled by Netcom (an ISP). The user that placed the files on the Internet actually utilized a local bulletin board service (BBS) that provided Internet access through Netcom. The Church requested that the BBS and Netcom deny access to the individual involved, and that they remove all documents containing Church materials from the servers they controlled. When both the BBS and Netcom refused, the case went to court. The court found that neither the BBS nor Netcom had directly infringed the Church's copyrights, since neither party had taken any affirmative steps to cause the copies to be made.

Although the computer systems of both parties operated automatically to receive and transmit the postings of subscribers, the court found that this is not enough to establish a direct infringement claim. On a claim for vicarious liability, the court also found against the Church, finding that there was no direct monetary reward to either Netcom or the BBS for the posting of infringing materials. However, the Court found that Netcom may be liable to the Church under the theory of contributory infringement by materially contributing to the infringement of the user. Although the court recognized that there could be no liability even under the contributory infringement theory unless Netcom knew of the infringement, the court stated that if Netcom knew or should have know about the presence of the copyrighted materials on its server and failed to remove them, that failure could amount to contributory infringement. The notice that the Church provided to Netcom may have been enough for Netcom to be liable for its failure to act on that notice. Unfortunately, before this final issue could be determined by the court, the parties settled the lawsuit.

Cases decided since Netcom have followed the Netcom court's analysis. For instance, a bulletin board operator who knowingly allowed his users to upload and download copyrighted SEGA games was determined not to be a direct infringer of SEGA's copyrights. However, since the BBS operator knew about the copies, and developed a scheme to actively encourage the uploading of such copies, he was found guilty under the theory of contributory infringement.

Earlier cases, however, have implied an even greater liability for BBS operators and ISPs. In the case of Playboy Enterprises v. Frena, a BBS operator whose bulletin board contained copyrighted photographs owned by Playboy was found liable of violating the right to display and publish the photographs. This was true even though the BBS operator did not make the copies himself, and in fact was never proven to have knowledge of their existence.

In effect, this case held the BBS operator liable merely for providing a means by which copies (made by others) could be distributed to the public. If this logic were extended to ISPs in general, an ISP could be held liable for its members activities on the ISPs web and newsgroup servers, even without knowledge of such activity. However, it is unlikely that such a ruling would ever be made given the major impact such a position would have on the expansion of and access to the Internet.

CONTRACT AND FRAUD

When America On Line announced that it was shifting to a flat-rate billing policy, AOL's proprietary and Internet access services were overwhelmed. Customers who tried to dial in were often greeted by busy signals, and access to the Internet was very slow. Although AOL's performance improved, that did not stop frustrated customers from bringing lawsuits against the company. These suits alleged that AOL knew that their service would be overloaded, but nonetheless went ahead with the flat-rate plan. The suits alleged that AOL was in breach of its contracts with its customers (by not providing the agreed upon service) and had committed fraud by knowingly misleading current and prospective customers.

At this point, AOL has not been found liable for its actions. However, the message for ISPs is clear. Deliver on all of the promises you make to your customers, and only promise what you can deliver.

DOMAIN NAME CONCERNS

The selection and protection of a domain name may be the most important detail in the creation of a web site. Domain names function as the address for a web site, and disputes over domain names have become more common and more heated as the popularity of the Internet grows.

Selecting a Domain Name: Domain names have a first and second level. In the bitlaw.com domain name, the ".com" portion is considered the first or top level domain name, and "bitlaw" is considered a second level domain name. The most common top level domain (.COM, .ORG, .NET, .GOV, .EDU) names are administered by InterNIC, although other top level domains are available and still more will be available soon. To obtain a domain name using one of these top level domain names, a WhoIs search should be done to make sure the name is not taken.

In addition, it may be wise to perform a trademark search to verify that the chosen domain name is not infringing on another party's trademark.
Reclaiming a Domain Name Registered by Another: Occasionally, upon searching for a domain name, a party may discover that someone else has already taken their corporate name or trademark as a domain name. In most cases, there is little that can be done because the other party has equal right to use that name. In some circumstances, however, it is possible to contest a registered domain name based upon superior rights to that name. Such a contest can be made through the courts or through InterNIC's domain name dispute policy.
Obtaining a Domain Name: If the name is available, a registration can be filed with InterNIC using their on-line registration form.

Protecting a Domain Name: In order to better protect a domain name and to avoid losing a domain name under the InterNIC domain name dispute policy, a domain name owner should obtain a trademark registration on their domain name. In order to obtain immediate protection, a registration can be obtained through Tunisia. However, often the expense of a Tunisian registration is not justified.

Obtaining Multiple Domain Names under Different Top Level Domains: Because of the new top level domain names that are currently proposed, it may be wise for the owner of a strong trademark to obtain domain name registrations under multiple top-level domain names. For example, the BitLaw web site might be found under "bitlaw.com", "bitlaw.firm", "bitlaw.web", and "bitlaw.net". Multiple registrations may require the overhead of maintaining a web site under each domain, but will prevent competitors from obtaining the sites.

Source:  http://www.bitlaw.com/internet/

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