Legal Pundits Pan Internet Exceptionalism 346
Back in Brown writes: "This article from today's Wall St. Journal (via MSNBC) presents the viewpoints of several legal commentators that the Internet should be treated like any other invention and not subject to novel legal interpretations. 'The steam engine ... probably transformed American law, but the "law of the steam engine" never existed.' Another quote: 'cyberbuffs are afflicted with "insufficient perspective, disdain for history, unnecessary futurology and technophilia."'"
Things change (Score:3, Insightful)
Re:Things change (Score:4, Insightful)
And we need patience. Lots of patience. Look at how long the Civil Rights struggle has lasted and is still continuing...
Re:Things change (Score:3, Insightful)
Wow. You have an incredibly "innacurite" (sic) view of how law works. We use all available existing judgments to find the most appropriate categorization for each new situation (like qsort(3)). More often than not, questions arising from a new situation are resolved by fitting that situation in somewhere between a 50-year old decision and a 100-year old decision.
Oooh, "shackles of the past," as if we should all read that and immediately recognize that there is some huge injustice that needs to be removed. Try motivating your disgust a bit more with actual arguments and come back later.
Re:Things change (Score:3, Insightful)
Compare the act of defacing a web site with that of spray-painting a brick and mortar store front. Graffiti is basically the same, whether it's on a web site or in the real world. We don't need a new law that applies specifically to the former; instead, we should simply charge the kiddies with vandalism, just as we would if they did the latter.
The article doesn't say that the internet doesn't change anything, nor does it say that absolutely no new laws will be needed. The article is saying that in some cases, we don't need new laws because existing laws already apply. Murder was already illegal when guns were first invented; it was not necessary to create a new law to make murder by gunshot illegal as well.
Re:Things change (Score:2, Informative)
Compare the act of defacing a web site with thatof spray-painting a brick and mortar store front. Graffiti is basically the same, whether it's on a web site or in the real world. We don't need a new
law that applies specifically to the former; instead, we should simply charge
the kiddies with vandalism, just as we would if they did the latter.
The whole idea, inelegantly explained in John Perry Barlow's Declaration of the Independence of Cyberspace [eff.org],
is that we should NOT resort to 'charging the kiddies with vandalism', just
like you'd do in real life. Cyberspace has it's own set of rules and, in
this case, recognizes that script kiddies that deface websites are prevalent
and that webmasters are responsible for keeping their sites secure. A rather
drastic form of personal responsibility, perhaps, but congruent with the
underlying meritocratic philosophy that states: "If you can't stand the heat
get out of the kitchen!"
Morel
(Thanks to Harry Truman for the quote)
Re:Things change (Score:2, Insightful)
Re:Things change (Score:2, Insightful)
You state that as if it's a fact, when it's that very question, whether "cyberspace" should have its own set of rules, that is the subject of this debate.
If a group of terrorists gather on IRC to plan an attack, is the crime that they're planning to commit changed in any way by the fact that they planned it in "cyberspace," instead of using telephones? If someone is killed with a hammer blow to the head, is the murderer more or less guilty than if he'd used a gun or a knife? If someone burns down a house, does his level of guilt depend on whether he started the fire by rubbing two sticks together, or with a Bic lighter?
To put it more generally, if technology creates a new means of committing a crime, without changing the basic nature of the act itself, then what need is there to create new laws? What useful purpose does it serve to outlaw specific methods of committing a crime, when the basic crime itself is already well covered by our existing laws?
Re:Things change (Score:2)
Oh, like we already have copyright law, so we don't need a new one, like the DMCA?
...and laws change with them... (Score:4, Insightful)
transformed society in ways that never could have been imagined before. It made possible
industrial techniques and housing patterns that couldn't exist without it. The internal combustion
engine accelerated these effects.
The biggest difference between 'cyberspace' and all previous inventions (other than, to a much
lesser extent, radio and TV) is the fact that it defies geographic classification into legal
jurisdictions. For example, when I post this, am I doing it in
- Kansas (where my home is)
- Missouri (where my ISP is, at least locally)
- Virginia (where their domain is registered)
- Massachussets (where Andover.net, official Registrant for slashdot.org is),
- the physical location of the server(s) that the domain points to, if not any of the above
- Each of the sundry locations of
/. readers - All of the above, plus every single router in between
???We laugh at the hubris of the {French|German|Dutch|*} government trying to prevent servers
located in another country from carrying 'illicit' material. Until they go after DNS, routers, or other
servers that are within their borders to prevent them from moving Evil Bits from those sites.
Each of these other inventions brought with them entire agencies to police the technology. It's just
a matter of time before this one gets the same treatment.
"Cyberbuffs"? (Score:2, Funny)
I prefer to think of myself as a nihilistic technofetishist.
(Name That Quote!)
--saint
poor little goth kid (was: Re:Wow (Score:2)
Cars changed the law (Score:2, Insightful)
Re:Cars changed the law (Score:5, Insightful)
Cars introduced new laws (e.g., the infamous "red flag/red lantern" law in Britain), but it didn't invalidate any of the earlier laws.
If you couldn't cut across a field with horse and buggy, you couldn't cut across a field in your new car.
If you horse trampled a child and caused injury, you were responsible. If your car ran over a child and caused injury, you were responsible.
If you couldn't transport something in your horse-drawn buggy (e.g., moonshine), you couldn't transport it in your car.
In contrast, a lot of sleazy characters <i>are</i> attempting to claim that commonsense laws don't apply to the net. E.g., how many pyramid scheme letters did you get that were "legal" since they didn't use the mail. Too bad the Postal Inspector held that he did have jurisdiction since they used the postal mail to get the money! How many companies continue to push illegal products (drugs, both prescription and illicit), or "low rate" insurance which has a low rate because you'll never have a claim paid, or any of the other scams in circulation. Or how about the companies that are fradulently impersonating third parties to get past the spam filters. (Want to see the bounce messages for fradulent messages sent out "by" my company?)
Even the new laws that the 'net does need should be informed by historic precedence. The specifics are, but almost none of the concepts haven't been seen repeatedly over the past few centuries.
Re:Cars changed the law (Score:4, Funny)
That said, I wouldn't be unhappy about winding back special laws for new technologies; we can start by invalidating business patents, patents on software, patents on natural phenomena generally, EULAs, grossly extended copyright provisions, acceptance of the notion that trademarks were meant to prevent criticism of companies, that technology companies should be exempt from normal labour law provisions like overtime and hiring immigrants, or that teh recording industry should be able to attack my property if they think I'm a crook. Getting fair use back would be nice, too.
Hey this ending legal exceptionism looks like good shit.
What's that? This is a complaint by vested interests who like these Draconian violations of existing norms and laws against citizens, not meant to cause us to reexamine the results of their special pleading? Oh, I'm sorry, I misunderstood. I didn't realise it was a device to enslave and shaft us harder.
you do have to try to avoid them though (Score:2)
Re:Cars changed the law (Score:2)
Which one of them states?
As long as you
a) weren't speeding,
b) didn't evade the scene of the crime,
c) weren't under the influence of anything,
d) weren't doing anything else considered wrong,
then you didn't do anything wrong, really.
Well, it's basic morality. You didn't do anything immoral, no matter what means of transportation you were employing.
But there are some laws, or should I say "regulations" that apply, specifically, to one technology. For instance, why do the British drive on the left side of the road and most anybody else on the right side? There was an old English law mandating that horse riders drive on the left side. This had a reason: horse riders, most of them right-handed, carried their whips on the right hand. Therefore, it was safer for pedestrians if horse-riders went on the left side of the road. In the late 1700's, Napoleon, then in war with England, made a law mandating the opposite, just to spite the evil English. Since France was an influential nation diplomatically, and the rest of the world liked to spite the economically dominant Britain as well, similar laws became fashionable around the world.
On which side of the road you drive may not be very relevant in an animal-transportation economy, but it's one of the most important laws in a machine-driven world.
Re:Cars changed the law (Score:2)
Re:Cars changed the law (Score:4, Interesting)
But the first legislative response to the car was the passing of the red flag act in the UK which required a man to walk in front of a car with a red flag.
The attempts to legislate cyberspace in the US have mostly been as clueless. The CDA, COPA, DMCA, etc. etc. All pushed with the primary goal of making a congressman look cybersavy.
Where the article is wrong is that the technologists are not the ones calling for the laws. It is the army of self appointed experts who think everything is changing, Internet time, etc. etc.
The media thinks that the experts on the Internet are academics who write books on it not the people who write RFCs, architect standards etc. They think that everything is changing at the speed of light only because they have so little grasp of the technology.
It took us six years to get HTTP adopted as a standard. We are currently working on redoing RPC and CORBA in XML syntax. We are doing it better (and the CORBA losers have only themselves to blame), but ten years after it could have happened.
I did two specs in the past 18 months which is pretty much a record for standards work. It is going to take us at least five more years before a significant fraction of commerce transations are e-comerce (but not value, since a small number of transactions account for 90% of value).
The point is that the Internet does not move so fast that the legislature needs to take special measures.
Re:Cars changed the law (Score:2)
Mod up, my brother.
The WSJ article read like a Katzian strawman exercise. "Cyberbuffs" (who are they?) believe everyday laws shouldn't apply to "cyberspace." And how do we know this? Because that Declaration document has been around a few websites, and because so many of these visionaries are testifying at conferences. With few being named.
Oh. *shrug* I just figured they could quote just one proponent of this "exceptionalism" view that the article is so busy tearing down.
If there's anyone seriously pushing the exceptionalism theory, it's clueless and/or sinister members of Congress, doing so to justify crazy new laws like DMCA. ("Digital Millenium Copyright Act"? Does any real geek ever talk about this being the "Digital Millenium"?)
Re:Cars changed the law (Score:2)
>for horse and buggy carriages).
I'm not going to look up a cite for you, but I can assure you that speed limits did exist for ridden horses as well as for carriages in many urban areas, long before the inception of the automobile.
Obviously the "speed limit" was a subjective measure, but accidents due to unsafe equestrian locomotion were quite common.
This does not detract from your post at all, I realize, but I think it's important to get a perspective. Urban crowding and transportation issues did not begin with the horse and buggy.
If you really feel like researching this, one place to start would be Pittsburgh, which I know for certain had a speed limit in the horse-and-buggy days. It would not surprise me at all to find documented cases of people getting in trouble for "dui" in the 19th century.
Another, probably even older example is from the biography of one of the Signers of the Declaration of Independence. For the life of me I can't remember which one. But it appears he was something of a scofflaw, there being a known citation for his habit of driving the carriage at full tilt!
As a side note, there is a frequently vectored story about the signers and the greif they withstood... but most of that is myth...
Technology Changes Society and Laws (Score:2, Interesting)
And with steam engines came the locomotives and a need for standardizing time across time zones.
Technology isn't as revolutionary as some make it out to be, but it does change things. A comparison is made to telephone calls in the article, but no RIAA was created to prevent me from playing Van Halen on my phone and letting you record it. Why? Quality, convenience blah blah, etc.
I think in the case of the internet and laws with regard to Intellectual Property, the existing laws are ambiguous and/or insufficient for today's reality.
Deep-linking, terms of use, digital music/video/software are in a new venue with the internet. Owning a song was an easier concept with piano rolls, LP's, tapes and even CD's, but now some companies are trying to take away usage rights from us with the new technology when the new technology makes usage easier.
The right to swing my fist ends at your nose, but the argument can be hard to define when I buy a product from you and you tell me I can only use it a certain way and I have no recourse if it breaks. (Copy protected CD's/DVD's/etc.) I don't recall any book publishers printing books with ink that will fade in a certain number of years or if you cross a regional border.
And I don't recall a phone number having terms of use that were revealed after you dialed it.
I don't want to troll into yet another IP/RIAA/MPAA/KaZaA/Napster/whatever debate, but I just want to acknowledge that there is need for new precedent in the internet media. It's not controllable or accountable in the same way as communication was in the past, and society and the legal systems have to deal with that.
No Changes? (Score:3, Interesting)
Who the heck needs the DMCA, CDBPTA, and all that other crap anyways?
Oh, I know -- the lawyers that bottom feed off of it.
Re:No Changes? (Score:2)
For example, take copyright. Is it legal for me to make 100 tape copies of one of an album I have bought, and then sell/give them away? No. So is it legal for me to upload the song onto the net, and let 100 people download it? No.
So why do you need new laws to deal with people sharing music on the internet? This article is arguing that you don't.
One big thing w/ cyberlaw (Score:2, Insightful)
Venue is not new (Score:3, Informative)
Re:Venue is not new (Score:2)
This is much easier than on the internet. The mail order company is incorporated somewhere - that's their location. What if the company operates in Denmark, but the server is in the US, and the domain name is Greek?
What if a website is hosted in the Netherlands, and the content is illegal in the US? (Certain types of pornography for example.) Does it matter if the site owner is American? Does the language of the web site matter?
From what I've been hearing in the news, the courts do have problems with these issues, and they have come to rather contradictory results.
I'm not sure whether new laws are necessary, but there are certainly new problems.
two cent gallery (Score:2, Insightful)
The point of the article is that existing laws didn't bend for the new technology.
It was illegal to murder someone before the car. Its illegal to murder someone after the invention of a car. Its even illegal to murder someone in a car *and* with a car.
In the states there is "vehicular manslaughter" but premeditated murder with a car is still IIRC murder in the 1st. The former charge would be if you unintentionally cause an accident that is your fault that kills someone.
Anyways, its just more bs from a news source. Don't they just point out the obvious for a living then call it news?
Tom
Actually they have a point. (Score:2, Insightful)
Exceptionalism (Score:4, Insightful)
Until recently, even software distribution has had a physical component (e.g. the media + manual). We are approaching the point where software this is the exception, with the norm being distribution via the internet (free software has already passed this point). Any pretence of software or "content" being scarce in the traditional sense of the word will then be completely bogus.
Add to this decades of corporate abuse of the copyright system (Sonny Bono, et al.) and you have a system that is terminally screwed. Perhaps they are right: we shouldn't be making exceptions for the Internet, we should overhauling the whole system
Re:Exceptionalism (Score:2)
The cost of reproduction of a piece of commercial software compared to its price has been negligable since the days of the 9 track tape. The cost of a piece of pvc with grooves in it compared to the cost of an LP has been trivial since the invention of the record player. The cost of a pond of paper is trivial compared to the selling price of a book.
The fact is that it was the industrial revolution that made IP laws necessary. The internet is just a continuation on the same theme of driving down the cost of transmission and reproduction that began with Gutenberg.
Re:Exceptionalism (Score:2, Funny)
I think I understand.... (Score:5, Insightful)
Let's choose something more modern. Let's say we shouldn't have laws that only apply to the internet because we don't have laws that apply to the phone, or the fax machine.
What's that you say? Oh, so we do have those laws.
How about comparing the internet to the post office? Oh, we've got laws for the post office too huh?
Trains were not a revolution, just an evolution. People already knew how to get from point a to point b, a train just made the process faster. There's no reason laws for trains would need to be made.
The internet on the other hand, is unlike anything before. You can steal something, without depriving it's owner of his property. You can destry someone's property (software) and all they have to do is put it back.
The internet does need laws, but I find that people don't know where to stop. Sure we could have spam laws, or we could just use technology to block spam completely. We could have laws that outlaw unwanted phone calls, or you could buy a $30 device that requires all callers to know a 4-digit pass-number.
What we need is intelligent people guiding those that make decisions... People much smarter than most Slashdoters. The problem is that the government will be happy to spend a trillion on corporate bail-outs, but you'll practically have to work for minimum wage if you want to take a government tech job.
Re:I think I understand.... (Score:3, Insightful)
Say someone is a child rapist? Just because it's said online doesn't mean it's not actionable (unless the person really was convicted of raping a child), but some of the internet kooks routinely did that.
A pyramid chain letter is still illegal even if it's distributed by email, but it took a number of prosecutions by the FTC and Postal Inspector to convince many people of that.
As for the argument that destroying data causes no harm because the owner can restore it, that's flat-out wrong. There are some businesses that can literally lose a million dollars every minute their computers are down (think airline reservation system, other big-ticket high-volume retailers), and most businesses will suffer real losses until the data is restored. To say nothing of data permanently lost because it's not yet backed up - 100% stable storage is extremely expensive.
If you still think it's no big deal, tell us where you live and we'll "move" your car for you. You'll get it back, eventually, so it's no harm when you're unable to use it to get to work or to go out on your hot date.
Re:I think I understand.... (Score:2)
Hell, right now if your hard drive fails, you've got no recourse against the manufacturer. If it was a real storage facility that caught fire and destroyed your documents, you COULD sue them.
The point is that the real world is different, everything that can happen online is not necessacarily applicable to the real world.
Re:I think I understand.... (Score:2)
Storage facilities are held responsible only because it can be reasonably expected that it comes with the service. A hard drive can just as reasonably be expected NOT to fail... The only reason we don't hold hard drive manufacturers responsible is because of the little disclaimer on every box.
My point was that high-tech companies should be held to a much higher standard than they have been. Hardware manufacturers should not be able to simply write down a few lines that disclaim their liability. At most, they should be able to write some detailed stats that describe the lifespan of a device. e.g. hard drive manufactuers say their drives will work properly for 5 years. If you use them longer than the stated life, you are on your own.
Hell! if hardware manufacturers had greater liability, you'd see fuses on your hard drives, NICs, etc. Holding high-tech companies to a real-world standard would result in much better quality products, rather than the crap we have today.
There need to be laws governing the computer world, but they need to be made by intelligent individuals, NOT by our congress. There's too much corruption and vested corporate interest tainting the ones that are supposed to be protecting us from corporations.
Re:I think I understand.... (Score:3, Insightful)
Granted, there will be some losses, but it's nore actually measurable. And I don't think I've ever heard of a predicted earnings adjustment due to a server being down for 18 hours.
Re:I think I understand.... (Score:3, Interesting)
Now, this is a server on an _internal_ net, quite safe from internet hackers and e-mail viruses. If it crashes for more than a few minutes, it's because corporate management was too cheap to buy redundant hardware, or to arrange an alternate connection from the plants to the server at HQ for when a backhoe hits the T1 trunk. But every time the Windows NT (or 2000) OS on the server takes a dump, we have dozens of people getting an extra coffee break, and that adds up.
Re:I think I understand.... (Score:2)
Re:I think I understand.... (Score:3, Insightful)
What a load of rubbish! This is precisely the technocratic elitism the article is talking about.
You can steal something, without depriving it's owner of his property.
You can photocopy a book without depriving it's owner of his property. All without the benefit of cyberspace.
You can destry someone's property (software) and all they have to do is put it back.
You can grafitti slogans all over a shop and all they have to do is clean it off. All without the benefit of cyberspace.
There is nothing fundamentally new about the internet. It's faster, larger and more convenient than earlier technologies, but it still follows the same old rules of physics, logic and human nature.
That is erroneous on several fronts (Score:3, Interesting)
It could be argued that "the internet is not a revolution, just an evolution. People already knew how to communicate with one another across great distances, the internet just made the process faster. There's no reason laws for the internet would need to be made."
Do we need laws to govern the internet? I would say that it is unlikely that we do, and that at the very least we need to proceed very, very carefully. Far better to pass a needed law too late, than to pass unnecessary, and harmful, legislation too early.
Do we need to restrict speech on the internet? No, not any more than we need to in real life.
What about child pornography? Already illegal
What about commerce? Our existing interstate commerce laws, tax regimes, etc. are more than sufficient and can be applied equally to online commerce as they are to brick and morter commerce. Buying something online should be no different, legally, than picking up the phone and ordering someting by voice.
What about 'online stalking.?' No different than making obscene or prank phone calls in the real world, or verbally harassing someone in person
What about the children?!? They are in no greater danger than they are when they are out on a public street, and just like in the physical world, it is the parent's responsibility to see to their children's safety, not the government, and certainly not at the expense of my constitutional rights.
I could go on and list virtually every subject which gets raised WRT the "need" to regulate the internet, and in each case point out that the application of existing law is more than sufficient to keep society on roughly the same even keel it has generally been all along.
The problem is that the media and copyright cartels see an opportunity to grab immense power, power that the courts (and even congress) has deliberately denied them in the past. However, the ludditism of Hollywood, the digital illiteracy of congress, and the legalized bribery we call campaign financing have all come together to produce a very dangerous mixture of political cluelessness and political will that may just result in these very powers being extended, with manditory DRM technology enshringing Microsoft's desktop monopoly into law and granting those very same Hollywood Luddites veto powers over the deployment of all new consumer technologies.
This should scare the shit out of any clear thinking individual.
You can steal something, without depriving it's owner of his property.
No, you can't. That sentance is in direct conflict with the very definition of stealing, as has been rehashed here and elsewhere numerous times.
Copyright Violation is not theft. It is not recognized as theft by the law or by any of the freely accessible dictionaries online.
In fact, the only place where copyright violation is considered theft is in the minds, and newspeak, of the copyright cartels, and those who thoughtlessly echo their propoganda.
Even in a nation increasingly afflicted with fictitious legal absurdities (like equating a corporation with a real, thinking, breathing person) we haven't even gone so far as to equate copyright violation and theft.
We should not engage in the absurd, legal fiction that communication over the internet is somehow fundamentally different than communication by telegraph, telephone, fax, snail mail, or an in person meeting over lunch. Fundamentally it isn't any different, it is merely more effecient.
Re:That is erroneous on several fronts (Score:2)
Largely agreed with all of this. I'd like to add that there is some room for definitional tweaking, such as for Congress or the courts to resolve definitively where jurisdiction resides in an e-commerce dispute or which jurisdiction has taxing authority when product is shipped. What is a reasonable equivalent of a "signature" on a purchase order sent via the Internet or an EDI network? And so on.
These are minor details. These questions don't change the world.
But that's not the main point. The main point is that the Internet isn't magic. It's a bunch of computers all connected together, not fundamentally different from the telephone network. Society's rulebook doesn't have to be rewritten just because of a little change in technology.
Today is a good day for a rant. (Score:2)
What a troll article. Proclaiming that people who may or may not have mastered a word processor are going to interpret the laws for us? The article touches on no specifics but flames away at computer users as ingnorant adlolesents. Would that be the "generation gap" troll? The "sceptics" no more exits outside the author's imagination than the blind straw men he creates to oppose them.
Those treatened by the internet revolution will continue to spew bullshit like this. Those who will loose their ability to charge per minute for telcom will flame. Those who will loose their dead tree advertising empires will flame. Software companies with no real assets beside IP that has been duplicated, bettered and finally given away by the internet enabled free software community will flame. Those who would take something as common as music from the world, and attempt to monopolize it's distribution, really the sale of your own popular culture, will flame. And they are doing it. There is a steady barrage of hostile garbage comming from all those threatened industries. Attacks on sharing, free speech, even knowledge itself are becoming so common. All the storries about evil loosers who persue strange things and end up hurting themselves by being put in jail. The whole "internet bubble", where the internet is blamed for the recent collapse of so many companies that were pilfered by their executives with the aid of their accountants and sold by Wall Street, backers all of the old empires revealed as frauds are attempting to pass the blame from their wanton acts to the victims of their crimes. "Silly people, did you think stocks in our companies were really worth anything?" the seem to ask. All they will have in the end are losses. Obsolete business models will fail and those who fight against changes will have only themselves to blame for their losses.
Sensible people will apply reasonable laws to the internet and all forms of electronic communications. Laws made for snail mail will be appleid to email that will be encrypted and then protected from interception. New interests will find a way to right.laws have become unbalenced through oligrachal domination, Copyright will be rexeamined from it's first priniples bases on the greatly reduced cost of publication. The results will be much more in line with original US copyright laws than those that the RIAA would burden us with. Reasonable laws will be made, barring civil and nuclear war and everyone becoming like Microsoft.
Oh yeah, for those pea brains who would like to call me a strary eyed school girl I'm gonna pop out my accademic stick: BA Classics, BS Mechanical Engineering, working on a masters degree in Nuclear Science. I have a keen sense of history, love the good things that technology can do for people, I vote republican for lack of better alternatives, and I think the Free Software Foundation and the Electronic Freedom Foundation are right on. Now piss off, you silly comercial trolls.
Re:I think I understand.... (Score:2)
if cyberspace is just like meatspace... (Score:3, Insightful)
thanks!
renard
Obsolesence and Law (Score:5, Insightful)
The problem with trying to apply laws to the Internet is that digital technology has caused a wave of obsolescence in any kind of existing communication, information technology, and dozens of other of societal concepts we hold near and dear. Law based on past precidents rather than fairness and equitable behavior can't hope to keep up through such an incredible wave of advancement.
Take copyright, for (our favorite) example. It's an artificial scarcity placed on information to encourage development of new information, bit it music, data, scientific research, or text.
Since digital technology has forever completely erased the possibility of having a finite supply of any kind of information, the length and breadth of copyright law is dying-- screaming, kicking, doing it's best to cling to existance in a scary new world inhospitable to it, but dying nonetheless. Like symbiotic bacteria, only the lawyers are keeping the dinosaurs of companies that profit by control of information alive.
Other facets of law relating to digital technology will go through similiar changes. Those laws that can adapt will make the change, just like the small rodents and other mammals who survived the Yucatan blast when the dinosaurs were obliterated. We will find the fossils of those who can't in the strata of obsolete legal records.
Re:Obsolesence and Law (Score:2)
That is a very limited point of view. Napolonic law is also widely used.
Since digital technology has forever completely erased the possibility of having a finite supply of any kind of information, the length and breadth of copyright law is dying-- screaming, kicking, doing it's best to cling to existance in a scary new world inhospitable to it, but dying nonetheless.
How is digital technology anything more than a continuation of the development of techologies that made information cheaper to reproduce that started in the 15th century [prodigi.bl.uk]?
Re:Obsolesence and Law (Score:4, Insightful)
Digital technology has, for the first time in human history, eliminated a scarcity. Before, there was always a scarcity in terms of information that could be stored. Books, vinyl albums, papers, documents, and the like had to be stored. They could be duplicated, but only at a relatively high expense.
The introduction of digital technology in the mix has eliminated that expense, driving the 'supply-side' of the supply and demand equation for information to infinity. Copyright is now the *only* thing propping up the sale of information.
Re:Obsolesence and Law (Score:3, Insightful)
Eliminated? Hardly.
It's certainly lowered the bar and made it more readily available. But to access the information one still needs the technology in place... computer, phone line, etc. And, of course, someone has to host the source of the information.
It is exactly the same as the leap forward created by the printing press in the 15th century, the leap forward created by wood pulp paper in the 19th century, and general computers in the 20th century. It's simply another step in an ongoing chain of developments.
I would have to say you certainly suffer from the cyberbuff affliction mentioned in the article.
Re:Obsolesence and Law (Score:2)
Re:Obsolesence and Law (Score:2)
The principal change in society brought about by the internet may be cutting out the "middle man" by making the means of distribution of intellectual property open to everyone.
If we can find some means of allowing internet distribution while protecting the rights of the copyright owners, then more artists will self-distribute their creative works - we can destroy the once necessary but now obsolete monopolies of record and book publishers.
Re:Obsolesence and Law (Score:4, Interesting)
There are plenty of ways to incentivize the creation of information. We can pay people to create stuff directly, grant them honors, extend special privilages. If copyright was the only incentive for creation, FreeBSD wouldn't exist.
More to the point, copyright isn't very good at creating public works.
How many other alternate systems of incentives have been squashed by clinging to copyright?
-- this is not a
Re:Obsolesence and Law (Score:2)
Re:Obsolesence and Law (Score:2)
Re:Obsolesence and Law (Score:2)
Re:Obsolesence and Law (Score:2, Insightful)
A lot of the law of torts, contracts, and property is common law. A lot of criminal law also descends from the common law, although that's pretty much the only area in which we no longer allow courts to make law.
Re:Obsolesence and Law (Score:2)
Let me preface my comments to say that I agree whole heartedly with the poster's comments about copyright dying, albeit with the kicking and screaming of those businesses that have relied on it for their existence.
However, when you say "Law based on past precidents rather than fairness and equitable behavior can't hope to keep up through such an incredible wave of advancement."
I think you are wrong on two counts. First the tradition of the common law does show that it copes extremely well with such innovation. I would argue that the industrial revolution was the last period when such radical changes to the nature of society occured and it was precisely the common law tradition that enable the creation of "Real Property" at that time, perhaps this can explain why it was in England and not the continent in which the revolution was founded since it was only England that had the common law approach to justice. Now I am not saying that CL is perfect, nor that it is necessarily optimal, but it is certainly not an impediment to the kind of advancement through which we are travelling. Further, I think that we have lost the common law tradition in this day and age of legislative activism where everything is codified in statute (much more like the roman/germanic tradition of the civil codes), to the extent that most of the failure we would identify in today's legal environment is the result of not enough Common Law.
But I said there were two objections. The second is that the concept of Equity is also very tightly tied to Common Law in that the Equity courts grew up hand in hand to deal with the failures of the CL to provide justice in some cases. Equity has a number of maxims that provide the sense of balance inherent in the Equity/Common Law mix. These include:
As you may be able to tell, I believe that this "outdated" system of civil justice is actually quite important. And I would close by suggesting that it is exactly _not_ the Common Law that is the cause of our common malaise wrt (in particular) copyright and intellectual property
As an aside. I actually think that IP as a whole is broken and broken largely because of a misapplication of the "looks like X, well then it must be X" rule that is at it's foundation. Largely because, well, IP may look like property, but that is only very superficial and the original poster has hit the nail on the head when they identify that one of the _necessary_ conditions for property, scarcity, is missing from IP, thus it cannot be property. (note also that scarcity is not sufficient to find property, just necessary)
Re:Obsolesence and Law (Score:3, Informative)
(Some vast oversimplifications follow)
Common law is strongest in English-derived legal systems. Most other Western countries are founded on civil law. Common law is where the rules of law are largely made by judges in resolving particular cases. Civil law focuses more on writing the law down ahead of time.
Common law tends to be more organic - it grows. Civil law is more designed. Both do try to achieve consistency and fairness. If two people lose fingers in work accidents, both systems try to award similar numbers to the two individuals. Common law is more likely to look at previous cases, civil law is more likely to have a table of damages created before the case crops up.
Each has strengths. Common law does not require thinking of everything ahead of time. Civil law puts everyone on better notice. The unpredicatability of common law, versus the "oops, missed a spot" aspect of civil law is one of tradeoffs.
Whether "cyberspace" if you think it exists would be better governed by civil or common law, is an entirely separate question from the one that started the thread. It may not be best served by the analogical reasoning of the common law, but on the other hand, a civil law approach requires more foresight than anyone has for the environment.
The above are "technical" problems of law that, for the moment, ignore political and social dimensions of "cyberspace" as a community, or "cyberspace" as a fragment of larger pre-existing communities. For example, if "cyberspace" says that it is not responsible for cyber-stalkers of 12-year-old girls in the same way that Arafat says he is not responsible for Hamas, what is the result? The response of "too bad, so sad" isn't going to cut it.
Article misses the point (Score:5, Insightful)
The author further tips his hand by reducing the discussion to a discourse on laws, pundits and law students in America (meaning the U.S.), showing no awareness of the extranational nature of the internet. Just as the internet is no one application (a suprisingly apt realization on the author's part), the internet does not exist in any particular place, making it indeed worthy of special consideration when it comes to legislation and legalization.
Certainly some do get carried away with the internet as champion of true democracy, etc., but the fact remains that the internet does form a unique medium for all sorts of activities carried out by participants from around the globe. It only bears comparison to the steam engine in that it has definitely changed our way of life, but the comparison ends there. Attempting to approach the ramifications of the internet in the same manner as the steam engine was approached is to suffer from "insufficient perspective, (and a )disdain for history..." as well as being short sighted and overly simplistic.
Re:Article misses the point (Score:2, Informative)
In the United States Constitution, many areas are reserved in law to individual states, but in the modern world they need to be uniform across the whole U.S. So instead of amending the Constitution to hand these areas over the the federal government, the states have created "model" laws by agreement, with each state enacting a copy.
This same procedure is happening in the world right now, but there is no public debate about how these laws are determined. We are often assuming that we "must" have the DMCA since it is an example of a United Nations model law about copyright.
But where is the elected body that created that model law? Our traditional manner of enacting laws is to elect representatives to reflect our wishes, flawed as that is. Where were the elections to the WIPO that created these draconian "Internet" laws? We need to return to traditional ways of democracy, even if there are new areas that need to be clarified.
Someone else missed the point! (Score:4, Informative)
Straw man. The "assumption" is not that "one nation's laws can be binding on
Yahoo WAS a bad citizen in this case, and was slammed accordingly. Under US law, this result seems foolish and foreign, but we in the US do not get to impose our constitution on France -- a place brutally savaged by the Nazis. France applied its own law as against its own corporate citizen and its parent, a citizen that faced pretty bad and ugly facts in its own defense, using traditional notions of extraterritoriality.
Yahoo is probably not the best example to suggest that these authors don't "get it." Indeed, the poster seems to have as much difficulty understanding the law as he insists these jurists are having difficulty understanding the tech.
Re:Someone else missed the point! (Score:2)
But yahoo.fr DID ban those sales. Yahoo.fr is the French subsidiary. That wasn't good enough for the French court, they insisted that Yahoo.com (which was the US version) ban them too. That's what got everyone hot and bothered.
What's next, letting Saudi Arabia determine what is and isn't acceptable in the way of female pictures?
Re:Someone else missed the point! (Score:2)
If they really wanted to put Nazi memorabilia up, then they could have closed their French offices. It's not like the U.S. would extradite them. The executive staff would probably end up barred from France for life (or have to serve the sentance), but that it still France exerting power within it's own jurisdiction.
As for analogous non-internet laws, the U.S. has the Helms-Burton act that prevents companies that trade in the U.S. from also trading in Cuban good that were nationalized even outside of the U.S. There are a lot of laws like this.
Re:Someone else missed the point! (Score:2)
Re:Article misses the point (Score:3, Insightful)
In other words, law journals publish articles about Internet-related law written by people who almost know how to use e-mail and might even know that http: is the start of a Website address and their readers take them seriously.
Law journals are the legal industry trade press.
The reader of one of these journals might be judging YOUR DMCA case using bad ideas coming from, say, the clown who supports the French decision to attack websites outside France because they are an offense against French law.
As for a solution, all I can say is that it's time that attorneys who do get the Internet start publishing more articles.
Yes and no. (Score:4, Interesting)
Internet doesn't need new laws. There are laws that punish the acts of thievery, of diffamation, of misinformation, of undecency, of conspiracy, etc. They are generally sufficiently abstract to apply efficiently to the Internet. The government and the judges might need to adapt the way they apply the law, but it's no the same as writing new laws.
Internet need new laws. It changes some fundamental aspects of our society. The copyright law is the first one that should be revamped. But it needs a nationwide debate, not a corporal sponsorship. Some assumptions about the act of publishing should be rethought, too. In the Internet age -- my, this sounds so pre-2k! -- everyone can be a publisher. Everyone should have the right to be.
Internet need labels. Everybody can have a role on the Internet that was previously only obtainable by professionals - retailer, publisher, advisor. Yet you can't expect everybody to fare equally well, and you shouldn't expect them to be equally liable. Labels should be instored, allowing someone to say "I am a good quality publisher. I accept that I am more liable than un unlabeled publisher. You can trust me more than un unlabeled publisher".
I'm sorry I can't write something more coherent; I'm so exhausted; I need to sleep.
There's a difference... (Score:2, Insightful)
The current exemption from taxes, for example, is simply a 'perk' of being new. It's no more difficult to tax internet business than mail-order business. The mail-order companies are just exploting the disorder of the states. If the states get together or Federal Govt. ever gets its act together and passes a uniform tax code for mail order companies, they will be taxed. Same for internet 'e-tailing' or whatever fancy name you want to invent. International mail-order is also no different from international online transactions.
But there are very real differences in daily life brought on by new technologies. Back when direct telephone connections to homes and businesses was new there was a hue and cry about criminals being able to conduct their nefarious business without being subject to surveillance, very much like the current paranoia about internet fraud and pedophiles, etc... The police used to be heavy practitioners of 'eavesdropping' before the telephone. But there was also recognition of how the technology could be abused to increase police powers in unacceptable ways. So we didn't setup a central phone listening system like some dictatorship, we crafted a reasonable system of requiring police to get evidence that someone needed to be snooped on and get a warrant. We think this is 'routine' now, but it was a very new and strange thing in the early years of the last century.
Re:There's a difference... (Score:2)
Hope the above was meant as satire. I suggest you do a Web search on CALEA. It is the law of the land and mandates the central phone/data listening system.
Or search here on the recent theft (confiscation is just a prettier synonym) of PCs by FBI and police on a complaint about cablemodem bandwidth uncapping by a cable company without any pretense of due process.
Hah, Phonespace is filled with special regulations (Score:2)
I would love it if his editors applied the treat-cyberspace-like-meatspace and killed his column. Then we wouldn't have the WSJ churning out endless blather about the effect of the new economy. There are no columns devoted to the steel industry or the building supply industry. Yet, this guy keeps going on and on about the so-called Boom Town. (Can't someone explain to him the problem with the column's title?) If he wants to treat cyberspace like everything else, he should leave the reporting to industry rags, not flashy columns.
And the premise is all mixed up.
There are tons of new regulations introduced for each new technology. There's a special category called "wire fraud" for people who use the phone system to defraud people. Transmitting gambling information across state lines is a crime and that law was introduced to stop people from phoning their bookie, not going to their bookie's website.
The main reason that cyberspace is different is the only thing moving from place to place is information and freedom of speech is protected by many constitutions. So any law regulating the Internet often runs afoul of these laws.
It would be nice if the regular laws from the world applied to cyberspace. How much did Kevin Mitnick steal? How much damage did he really cause? I would love to see concrete analysis applied. The fact is that most hacking efforts cause less damage than most grafiti. In most cases, the damage can be reversed by running some backup tapes. I realize this takes time. I realize that it's pain. Hey, some jerk broke into my car last week and it caused me more pain and suffering than any hacker.
The law of steam engines... (Score:2)
Unfortunately, the concept of intellectual property is not as clear-cut in the internet. Files are copied instantly from one side of the globe to the other, and can you disassemble every binary file to look for stolen ideas?
When you transpose the traditional IP concept from patent and copyright law to the internet you may get anything, from digital dictatorship to outright piracy, depending on very fine points in detail interpretation.
Technophilia? (Score:2, Funny)
Cyberignorance. (Score:2, Interesting)
First part makes sense, second part implies that one's use of the telephone in their own home is equivalent to using their telephone on "Main Street".
they all have as a core principle a rejection of the notion of "Internet exceptionalism," or the idea that the Internet is a new, unique thing that requires its own special laws. "The steam engine
Comparing steam engines and telecommunications devices is about as stupid as it gets, anyone should understand that much.
And they certainly deride the ideas behind the "Declaration of Independence of Cyberspace," which is posted on many Web sites and poses a "hands off" challenge to government.
I've never heard of this thing before, I don't recognize it, and I think that they're just using it as a straw to hold up and try to cover up their engines to telephones comparison.
And most of the activists continue to see the Internet as a utopian ideal -- despite the fact that many progressives are beginning to worry that the Web is really just a very efficient way for companies to move white-collar U.S. jobs overseas.
Hey, any environment where we can't run up and kill each other in any meaningful sense has some utopian elements to it.
Reducing the internet to the web and defining it as a mechanism whose main purpose is to destroy american jobs is pretty goofy though. Tech has created quite a few jobs locally, as it has about everywhere else. Though I won't argue it overall helped or hurt, I just don't have any figures.
But what about his students? Well, he concedes, they're another matter. Many of them, with the passion of youth, are still enthralled with the whole idea of a separate universe, one they can call their own.
And you wouldn't consider an immersive conference call something to liken to a seperate universe?
Could someone make a picture of a whole bunch of people on "Main Street" talking into steam engines? It would summarize this article nicely.
Free translation - what they really said (Score:3, Insightful)
Classic marketing/financial services speak, to be expected from a banker quoted by the WSJ I suppose. Anyway, here's what that means:
"People who are keen on the internet don't look further than their noses and take a narrow view, have little consideration for what came before and have an unhealthy obsession for the latest technology and the next big thing."
A nice, sweeping generalisation, that's more anecdotal than scientific. (Or, put simpler, they don't have any numbers to back up what they say but, hey, everyone knows it's true don't they?)
If you can say something in an "artistic" way, use lots of long, fluffy words, instead of a straightforward manner, using plain, simple language, then a job in public relations or investment banking awaits you.
And people in those industries wonder why we don't believe everything they say...
Specialised legal study of open source (Score:2, Informative)
http://www.law.qut.edu.au/research/conference.j
We can apply certain principles of contract law and even tort, but ultimately, the unique economics of information services require somewhat different approach than matter-based products. For example, how do you price risk? Are the CreativeCommons an orthogonal set of "rights"? How does one detect and punish fraud (a big concern given the antics of Enwrong and WorldCon).
When the lawyers start getting their IP infringed upon, I'd like to see how they start to react
LL
They've missed the boat (Score:2)
What kind of lame comparison is that? The steam engine is not a form of expression. The steam engine was not responsible for a mass communication at all levels (individual to individual, group to individual, etc.) that retains massive amounts of information, experiences, and ideas across geographical boundaries. Sure, it changed a lot of things, but it's influence falls in a completely different realm of human experience. Do we have special laws governing expression and speech? Sure we do, and we don't generally compare them to laws that govern commerce, as we might with the steam engine.
Um...hello!? Just about all laws are based on mental constructs that we collectively decide upon as a community. The community feels that cybersapce is something different, and these guys don't get to tell us otherwise. Also, the nature of communication over a phone is of such a different nature that to compare them is terribly short-sighted.
Sorry, but these guys sound like they just want to be contrarians, staking out a radical position for the sake of academic interest.
mostly correct (Score:4, Interesting)
Certainly, there's no reason that "cyberspace" (whatever that is) should be treated differently than regular non-cyber space.
Fraud is still fraud, even if it's on the internet. Trespassing is still trespassing, even if you do it from the comfort of mom's basement. Sales tax should be collected just like any other catalog sale.
But the problems are 1) the internet is revealing some problems with old laws; and 2) old laws are mis-applied to situations on the internet.
#1: Copyright and other "intellectual property" law was never applied to person-to-person copying on the scale it is now, because it was impossible to track. It was used mostly to make sure that one publisher didn't publish another's work. The factoid I remember is that there were 2 illegal cassette copies for every 1 legit CD sales. Yet tape records and cassette tapes were still sold. I shared plenty of tapes in high-school, I still have stacks of them somewhere. All illegal of course. Just like Napster. But the record companies couldn't possibly know.
Now that copyright law can be applied precisely to everyone who is breaking it on the internet, we might wonder, was copyright law framed correctly to begin with? Do we need to be micro-policed?
There are probably other examples of an existing law magically becoming broader in scope because of the internet giving everyone involved greater surveillence powers.
#2: Sometimes existing laws are mis-applied. Using trespass as an example again: "testing" somebody's OpenSSH security by r00ting their box is a crime, I think. But what about portscanning? Changing numbers in an URL and discovering that you can see other people's accounts? Sending lots of email to a publicly accessible SMTP server? Clicking on a link that crashes the server because of a programming flaw?
Somewhere in that continuum is a fuzzy dividing line between legal and illegal behavior. The legal system doesn't have a feel, yet, for how much burden falls on the server operator, the way a computer expert might. For instance if someone changes an URL and sees other customer's data on my machine, I wouldn't sue, I'd feel like an idiot. I should know better. That's like designing a phone menu system where pressing certain numbers takes you to the CEO's bank account. It shouldn't happen. But if someone hacks my server, I know they must've had malicious intent, beyond mere curiosity.
I think #2 will sort itself out in the coming years, but #1 is a problem we won't get rid of any time soon, because neither side looks like they will back down.
Iconoclasm and Heads in the Sand (Score:5, Interesting)
While many screamed how backward was the law as applied in these areas, somehow common law adjudication seemed to evolve (albeit slowly) in precisely the right direction. There was no such thing as computer law, but somehow, progress was being made.
This was not a popular position, even as I was Chairman of the Florida Bar Computer Law Committee it was hard to get traction on my "old fashioned" point of view. Indeed, despite my youth and political activism, I was accused of being an "old fart with my head in the sand."
Alas, it is no longer the case that there is no such thing as computer law. A few "futurists" insisted (mostly in the 90s, although the agitation began in the late 70s) that the law needed to be brought "up to date," and lobbied the Congress to change the law -- to adapt to the "realities" of computers and the marketplace. At that time, I cautioned care and wariness about changes in the law, particularly by statute.
Now, we have computer law -- absolute legislative intervention just for computers and the internet. And look what happened: the Computer Fraud and Abuse Act, the ECPA, the DMCA, the AntiCybersquatting Act, the Federal Dilution Act. In short, the process of common law adjudication was cut short, and key public policies gave way to horrific lobbying. We have law just for computers now, and its bad, bad, bad.
In short, I think these authors have it right -- special purpose special interest legislation, uninformed by historical and public policy issues, has led to a quagmire -- law yielding ridiculous and bizarre results that can no longer be repaired by common law adjudication. This invites further tinkering, and further messes.
I remember, now, quite fondly the "good old days," when there was no such thing as computer law, when the law as applied to computers made sense for the most part; and where it did not make sense, common law adjudication would eventually sort it out.
Re:Iconoclasm and Heads in the Sand (Score:2)
So while "computer law" is a Bad Thing, Internet law is unavoidable.
Re:But that's what the legislature is supposed to (Score:2)
Let's rephrase that: would you rather have (often) neutral and dispassionate judges figuring out how the same laws that apply to everything else will apply to new technology, or legislators under the influence of the latest campaign contribution or the panic du jour passing special laws, frequently without even reading them?
I would agree with the article if it wasn't so one-sided. There is no mention of the DMCA, COPPA, and all the other badly thought out and special-interest influenced laws which have been hastily passed. Instead, they lambaste the internet community for asking simply that certain issues which have been around ever since the first mail order shipment crossed state lines, be finally resolved in a way that won't put our freedoms at the mercy of the Saudi Arabian religious police. And remember that this issue far pre-dates the internet: for many years some prurient freak who happened to be a postal inspector in Memphis, Tenn., was harassing publishers all over the nation by ordering books or magazines by mail, then having them tried for pornography under some of the most restrictive "community standards" in the USA.
If we want to stay free, the law must say that (for "push technologies" like TCP/IP or mail order, where things don't get sent until someone asks for them), the applicable jurisdiction must cover the business address of the originator - or else we'll ultimately have to paste veils over all the pictures of women to satisfy the Saudis, and all the pictures of men too to satisfy "equal rights" fanatics in California. So I want the law - and international treaties - to say that, if you want to take legal action against a website, and if the website shows a legal address for the originator, you have to file in the courts covering that area and under locally applicable laws, not according to the laws where received. If the French don't like what's for sale on AOL, they can regulate AOL-France and try to filter out attempts to access AOL-US servers from France, but they can't regulate AOL-US.
The other badly resolved issue is taxation. This problem also far pre-dates the internet; states have long been trying to collect sales taxes from out-of-state mail order vendors. If they actually got this, it would put a tremendous burden on the vendors (whether internet or mail-order) to keep track of the tax rates in about 48 states and thousands of cities and counties. If it's an unreasonable burden on these vendors, then it's really unreasonable on internet vendors; they are often smaller, and for downloadable products they also lack any proof of the recipient's address. So, since this is definitely the sort of thing meant by Congress's power to regulate interstate commerce, Congress should provide that states cannot tax out of state vendors. If it's really a _sales_ tax, it should apply where the stuff is sold, not where it is used.
Aside from that, there should be no special laws regarding the internet. If the FBI wants to tap into your IP traffic, it should get the same sort of warrant as needed to tap a phone. If it wants to read your e-mail, it should follow the same procedures as to open regular mail. Someone who cracks your computer and damages data is subject to the same penalties as someone who breaks into your house and makes a mess. URL name disputes should be handled like trademark disputes.
And of course, copyright and patent laws need cleaned up, a lot. This is not because of the internet, but because Congress has passed some ridiculous laws while under the influence of money, and neglected to see that the laws and the actual operation of the patent office meet the Constitutional mandated purpose.
Not really - point is that we didn't need new laws (Score:2)
These laws, in the United States, are interpreted in light of the facts. Special interest, special purpose laws invaded the policies and 200 years of jurisprudence, and led us to a mire that is untenable. This kind of micromanagement is PRECISELY what case by case common law adjudication is about, and is PRECISELY what the legislature is incapable of doing dispassionately.
No, I don't want an unelected judiciary formulating our laws. But the judiciary was doing a fine job in applying the general purpose laws that for 200 years have served to manage EVERY meaningful emerging technology to date. Only now has our overactive legislature, in a fit of campaign-financed-delusion, opted to override that process to serve their masters.
Here, it is the legislature that is killing the system.
"Law of the Horse", by Lessig (Score:4, Informative)
In fact, Lessing was wrong - there is a "law of the horse". One of the earliest legal codes we have, from one of the Scandanavian kings (Ranulf?), has at least two horse-specific laws. And they're interesting.
One law provided that, if a horseshoer made a horse temporarily lame, (which happens occasionally, more often with inept horseshoers) they had to provide a loaner horse until the hoof healed up. This is perhaps the first piece of consumer protection legislation. Note that it's very specific, and, like modern "lemon laws", places the blame unambiguously on the service provider. It's not a general tort or liability law; it's a law that arbitrarily assigns blame for a specific, common problem.
Another law provided that that if someone borrowed a horse and rode it around the village, they were guilty of a minor offense, but if they rode it out of the village, they were guilty of a major offense. Some jurisdictions make that distinction today in auto theft cases, mostly for juveniles.
So the law of the horse did exist when horses were important.
There's a sizable law of steam. Start with the ASME Boiler Code, which is very specific and has the force of law in many countries. Boilers used to blow up frequently before there was law that set standards for boilers and the people who design and build them. The U.S. safety regulations for steam locomotives [gpo.gov] (49 CFR 230) are still valid and enforced. There's a National Board of Boiler and Pressure Vessel Inspectors.
For a history of the law of steam, see page 35 of this recent boiler explosion investigation report [ntsb.gov]. There's a law of steam for good reason. The first law of steam was enacted in the US in 1838, after a riverboat blew up, killing 300 people. The issue remains; a steam locomotive blew up in 1995, killing several people.
Thus, claims that there is no "law of the horse" or "law of steam" are false. Such laws exist.
What's different about the internet.... (Score:2)
The purpose of laws is to provide checks and balances that are not provided naturally. In this light, it functions like a dam wall, where the surrounding hills do most of the holding of water.
With the advent of computers, the main check and balance (the cost of copying and distribution) for things like privacy, copyright, etc, is no longer there.
So what happens, is that to print off a copy of a book or record, I'd need to invest in a suitable press (and such activity is not easy to hide), for copying music now, all I need is a program and a computer, both of which are elsewhise legitimate.
A train, or a car, or even an aeroplane, is in essence, a fast mode of transport. It is still a thing on the road, it just moves quicker. Of course, there are law modifications to adjust for this. In some cases, we give them new roads.
The internet, etc, is something fundementally new, in that the laws are based on the assumption that copying and collecting and analysing data is a fairly expensive activity. Nothing is now further from the truth.
Until we find a way to deal with this issue, we will have any number of problems.
700 railroads bankrupt (Score:2)
How can we expect continued innovations in infrastructure if we don't right now commit ourselves that the next time an important advance comes around, we will immediately pass laws to be sure that those who invest their time and/or capital into building that infrastructure will all get their just share of the gains - and not end up impoverished while society happily rides the rails and surfs the Net?
___
substance? (Score:2)
What are they talking about? What special laws are they referring to? So, first, we take as a given that there are jurisdictional issues with someone putting up something on a server in Texas, and someone reading it in Germany. And, yes, lawyers and politicians are trying to figure this out. The article does say that it's useful to think of it as a bunch of computers being connected and sending around bits-- thanks.
I'm just asking, because this sounds like an interesting article. There very well might be internet-specific laws. There might be examples of cases making internet exceptions, or not making internet exceptions. I don't know-- I'd like to find out. But this article didn't say a damned thing.
Subject Matter Specialties (Score:2, Informative)
Trade Law,
Aerospace Law,
Media Law,
Entertainment Law,
Mining & Resources Law,
Telecommunications Law,
Why not Cyberlaw?
It's not that the law is different, it's just another subject-matter specialty.
Right conclusion, wrong evidence. (Score:3, Interesting)
His point is valid, but he misses the mark. All we want is a guarantee of freedom of expression. He selects a difficult case, one that many of us (myself included) do not understand. The author concludes that our misunderstanding of international and French law means that we want special rights. The people who are really pushing for special new cyberlaws are the RIAA and the MPAA. We don't want special laws, we just want our constitutional rights.
Yes, the author is right, there are people who want special rights online. However, he presents the wrong group.
Re:Right conclusion, wrong evidence. (Score:2)
The article talked about two broad categories of people: those who want cyberspace to be an expection and those who don't. But not everyone in the former category are cyberbuffs. Some want to place special restrictive exceptions on cyberspace.
Those who want special immunity exceptions are every bit as wrong as those who want special restrictive exceptions. Laws which are not uniform or impartial are bad laws, regardless of whether they are to your benefit.
I think you need to re-read the article and understand what it is saying rather than what you think it is saying. You enemy isn't the "cyberskeptic". You enemy is the exceptionalist who wants there to be exceptions to the law. Microsoft isn't a cyberskeptic. The RIAA isn't a cyberskeptic. The MPAA isn't a cyberskeptic. They are every bit as technocratically elitist as you.
Name ONE good cyberlaw (Score:2)
Name one cyberlaw that you approve of.
DMCA perhaps? Internet Radio legislation?
OK. If that's too hard: name one law which you want to be applied everywhere except the internet.
Copyright? You want it to be legal to download MP3s but not make your own tapes? Want the freedom of speech not to apply to the net?
Sure, the internet has raised some issues with existing laws which have to be addressed (e.g. copyright, international law) - but I can't think of a single thing that I would want to be legal on the internet, and not outside it (or vice versa).
Why on earth is the whole of Slashdot arguing for more internet legislation?
Maritime law as a precedent (Score:2, Informative)
Railroads DO have special laws! (Score:3, Interesting)
Few industries receive as much specific attention from the law as railroads. Railroads, especially in the United States and Canada, were the only heavy transportation that mattered for decades; as a result, they affected just about every industry, the politics of the entire continent, and society in general; and the laws, even today, reflect how influential the railroads were. Ever looked at the United States Code or the U.S. state's typical statutes? American laws were customized for railroads early and often in the late 1800s and early 1900s. Special railroad laws are still all over the place. U.S.C. Title 45 [cornell.edu] (out of 50) is nothing but railroads, and that's just some of the railroad law. Among lots of other things (if I recall correctly): they get special treatment when obtaining the right-of-way; the labor laws treat railroad workers differently; and they even have separate federal retirement from Social Security. I'm sure the laws in other countries address railroads extensively also.
Re:Railroads DO have special laws! (Score:2)
Sure, water borne traffic is more limited by geography than the rails, but it is still important.
Time Zones (Score:2, Interesting)
technophiles want LESS special case internet laws. (Score:2, Insightful)
So I say, *YES*, please DO get the government to treat the internet the same way everything else gets treated in public life, which means undoing the crap they've passed about it in the last few years. Destroy the DMCA, the CDAs I and II, and don't lie and call piracy theft. Theft implies that the original owner has had his property taken away rather than just copied. No, I'm not saying piracy is good, just that calling it theft puts the punishment out of proportion to the degree of the crime. Treating piracy as theft is like convicting someone for murder when all he did was get into a minor fist fight and nobody died.
Commerce V. eCommerce (Score:2)
You can legally use any word, words or initials to start a new business without registering a trademark - providing you are not passing off, of course. Take for example the word 'APPLE'.
"Apple" is legally used by thousands of businesses - large and small all over the world. Indeed, it is impossible that they all register themselves as trademarks - they are bound to conflict with many others, being confusingly similar. In my local phone book alone, there are at least five using this word - two garages (seems not connected), a car centre, fruit growers and a decorating firm.
"BUT", I hear you say, followed by many reasons why they cannot co-exist without conflict on the Internet.
These reasons are based on PROPAGANDA, SPIN and LIES.
Fact 1: In this vast ocean of domains on the Internet, mostly non-trademarks, a marker is absolutely essential - for people to identify it as trademark; e.g. a new protected TLD of
Just like the registered trademark symbol ® - this could serve the same purpose - to advise the public that it is legally registered and protected by law.
This
Fact 2: Given that each country has its own trademark system and can use the same words as another, the country is absolutely essential - as in apple.us.reg
Fact 3: It is illegal for one to prevent others from using their trademark. To allow this without consumer confusion or trademark conflict, it is absolutely essential that the class or subclass is included (e.g. computer) - as in apple.computer.us.reg
Can you tell the difference between apple.computer.us.reg and apple.record.uk.reg?
Of course you can. Being text based it is easier than using the phone.
Current
This is all about corrupt authorities aiding and abetting corporations to abuse the Law.
Please visit WIPO.org.uk [wipo.org.uk] - World Intellectual Piracy Organization - not associated with United Nations WIPO.org !
No special laws? (Score:2)
There are decent arguments that there shouldn't be any special laws. The troubles are with the special laws that have already been passed. It you want to make that argument, the first thing you need to do to prove that you are serious is to get rid of them.
Duh-huh, what? (Score:2)
Er, no. Actually, the steam engine necessitated a lot of new laws. Mineral right laws were updated because previously-unminable lands became workable. The locomotive, a descendant of the steam engine, created the railraod, which launched corporations into their stratospheric rise and indeed gave birth to the entire body of law called "corporate law". There's a special law for retirees of the rail system (separate from Social Security) and indeed there are labor laws entirely devoted to the rail industry. (In fact a major complaint of airlines is that they have been saddled, by extension, with these older laws.)
So the analogy fails, because there is a "law of the steam engine". As technology evolves, the law must evolve with it. Whole new crimes spring into existence and old crimes assume an efficiency and scope unimagined before.
Should the principles be extended into the new realm? Of course. But answer me this: What best "fits" the discussion forums on, say, nytimes.com? Newspaper article? Broadcast? Editorial? Conversation in the public square? Conversation in a private home? The forum is clearly like each of these yet is none of them. And those areas each have quite different rules on what can said, what can be actionable, etc. So how can you say that this new mechanism, which "looks like" many old mechanisms at once, should follow the old rules? Which old rules?
Re:they missed something! (Score:3, Insightful)
> 'cyberbuffs are afflicted with "insufficient perspective, disdain for history, unnecessary futurology and technophilia."'
As a "cyberbuff", I happen to think lawyers are afflicted with insufficient perspective, disdain for the possibilities of the future, unnecessary clinging to outmoded business models, and technophobia.
(Of course, the reason they're right, and the cyberbuffs are wrong, is because lawyers make the laws, and the laws direct those who have the guns. But what a wonderful world it could have been without them.)
Re:It's all downhill from here (Score:2)
Re:Acceptable letter replacements for editors. (Score:2)
Re:The Internet is a different beast, period (Score:2)
Well, in this point, although not being a Gringo, I must admit the USA has a perfect legislative principle: "no taxation without representation". This has already been applied in the USA in mail-order commerce. The seller, not being in the same state as the buyer, cannot collect state taxes. It's up to the buyer to pay sales tax to the state. Guess how many buyers do that?
In my own country, Brazil, it's the opposite: sales tax is paid in the producing state, rather than in the consuming state. The result is that the richest states, where industries are, get richer while the poorest states get poorer. At the same time, the whole country gets a huge disadvantage in the balance of payments, since exports are taxed at the source, while exports from the USA are taxed only at the destination.
The end result of all that is that the sales tax in Brazil is in the 20%-35% range, while in the USA it may be as low as 3.25%.
Re:False dichotomy (Score:2)
Damn straight! It's hard to argue for or against the points made in this article, since they really aren't valid or well researched arguments in the first place.
The article seems to blame the average technophilic Slashdotter type for what are really the views and actions of the good old fashioned special interests. You simply can't form a coherent argument when you agree with the points but they're being incorrectly used to attack you.
While most of us would agree that the internet and digital media create jurisdictional problems and other special legal issues, it's really the old guard (and their lawyers) who are trying to use "cyberspace" as an excuse to change the rules, either because:
A) they don't understand the new technology and competitive environment;
B) they understand it but know it will put them out of business; or
C) simply because they happen to see an opportunity to take advantage of the uninformed.
Instead, the people they attack are the very ones who would prefer to see the DMCA thrown out, freedom of speech upheld, public participation, fair-use, theft and damages to mean actual property stolen or broken (vs. just looked at), etc. - that is, the people blamed are instead the very one's who most want to see the old laws (and freedoms) apply to new technology.
New technology has always created new legal issues but the push for the most drastic and unreasonable new interpretations has and continues to come from the soon-to-be-extinct buggy whip manufacturers - not the technologists and visionaries. These lawyers need to check the facts and restate their arguments by correctly attributing ideas and motivations to the proper parties.