05/14/96 RMIUG Meeting Minutes - Legal Aspects of the Internet

The 26th meeting of the Rocky Mountain Internet User Group started at 7:00 PM on Tuesday, May 14 with Alek Komarnitsky (alek@rmiug.org) as moderator. There were about 100 people in attendance.

There were several announcements from the floor, including:

• Carroll Blend (cblend@tde.com), the RMIUG librarian, announced the availability of new books from Internet publishers. Please send Carroll an email if you have an overdue book.

• Susan Webb (hallkin2@ix.netcom.com), a contract recruiting manager with Hall Kinion in Englewood, announced several contract Internet-related job openings in WWW development, Java programming and Network Engineering. Contact her directly by email or phone at 303-741-9900.

• Dave Eisler (eisler@usa.net) announced the release of a beta version of his PC utility program called Speed. Speed caters to the special needs of laptop users; reduced screen space, limited RAM, inferior pointing devices. Interested beta testers should contact Dave directly by email.

• An Introduction to Java Workshop in Denver was announced. For details contact The Professional Training Center at ph 303-426-1900 or email ptc@edplaza.com

Alek introduced the first of our featured panel of speakers for the evening. Les Berkowitz (tklaw@aol.com) has practiced law for 23 years, 15 of which has been representing companies regarding technology issues. Les chairs the Internet Committee of the Technology Law Committee of the Colorado Bar Association and is a member of Mayor Webb's Telecommunication Advisory Committee. His talk was titled "Liability on the Internet." Les spoke about the liability areas of copyright infringement, defamation and software liability (both defective software and viruses). Liability issues on the Internet are growing and will grow considerably faster in the future. The first distinction is between publishers and distributors on the Net. Publishers have liability for defamation they publish and distributors do not have liability for the defamatory remarks of the publishers whose works they sell. This causes online companies such as Prodigy to want to be considered distributors, although when they screen messages on discussion groups, it pushes them in the direction of publishers. The new Telecom law does provide some relief on this issue, however, indicating that there is no liability for restricting access if the provider believes the material is obscene, objectionable, etc. (This raises many other issues as we see in a later talk.)

The economic loss rule says that in a contractual context, economic losses cannot be recovered in tort law (i.e., civil) unless there has been injury to person or property. In the past, information was not equated with property, but recent rulings have indicated that information (even non-copyrighted, non-trademarked) can be treated as property. Damages in liability cases involve direct damages, incidental damages and consequential damages.

Our second speaker, Paul Lewis (pflewis@mgovg.com) has a broad-ranging litigation and transaction practice which emphasizes technology issues. He is a frequent lecturer and writer on the Internet and legal issues on the net, and is co-authoring a book on Internet legal issues scheduled for later this year. Paul's talk was titled "Internet Domain Name Disputes -- What's All the Fuss About." Trademark law is relevant for domain name issues. A trademark can only be protected in a relevant market (for example Dominos Pizza and Domino Sugar). Consumer confusion is the main question in whether a mark is infringing. Additionally, dilution means that for famous trademarks (such as Microsoft), even use in an unrelated market would lessen the value of the mark and can be prohibited. In regular trademark disputes (off-Net), getting an injunction against another company requires proof of irreparable harm due to infringement or dilution. Also, the person seeking an injunction must post a bond to protect the other from harm.

In the domain name arena, no trademark search is conducted, it's first come, first served, only a single registration is possible for any name, and there is no market inquiry. There has been some "domain name grabbing" where companies have scooped up many domain names before other companies could register (mcdonalds.com). Also, there have been some pranks such as Princeton test preparation service registering Kaplan.com (the name of their competitor) and peta.org registered not by People for the Ethical Treatment of Animals but People Eating Tasty Animals (FYI: since this presentation, peta.org has been put on hold by NSI). In the case of a complaint, the current NSI (company that regulates domain names) policy says that a domain name owner must show that the domain name predates complainant's mark registration or the domain name owner has a national trademark registration. If unable to do so, NSI asks for a relinquishment of the domain with a 90-day transition period or if refused, puts the domain name on hold until the courts rule on the case or the parties settle. The problem with these rules is that a complainant gets an "injunction" without meeting the criteria for non-Net cases stated above. It was suggested that NSI should not be in the decision-making process and there should be a system for extended domain names to identify firms by market and region. For instance, a law practice in Denver that is currently mgovg.com might become mgovg.law.com.wus (i.e., a company involved in law located in the western Unites States).

To protect yourself, you should register your trademark and domain name, and in case of a dispute, take immediate action. This might include a foreign trademark registration (Tunisia has a 24-hour turnaround for these requests), adding a disclaimer to your web site stating that your company has no relationship to the complainant company, and/or adding a link to their web site. Finally, a URL was given for more information on this issue: http://www.law.georgetown.edu/lc/internic/domain1.html

Our third speaker, Peter Edwards (edwardsp@msn.com) has been practicing advertising and telecommunications law for 20 years, and has represented clients ranging from Jones Intercable to the CBS Television Network and 60 Minutes. He is an ardent believer in First Amendment principles and spoke on "Obscenity, Pornography,Indecency and the Internet." Obscenity is illegal under state and federal laws, and has a three part definition based on a 1973 Supreme Court case: "Whether the average person, applying community standards would find that the work, taken as a whole, appeals to the prurient interest." and "Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law." and "Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." The recently passed Communication Decency Act (CDA) part of the Telecommunications Act of 1996 makes it a crime to "display in a manner available to a person under 18 years of age" by means of an "interactive computer service" any communication that "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." The penalty is up to two years in prison and $250,000 fine. There is no liability for persons other than content providers except co-conspirators, advertisers, and owners of content providers. Additionally, employers are not liable for their employees violations unless the employee is acting within the scope of employment and the employer authorizes or ratifies the conduct or recklessly disregards it.

Part of the problem with the wording of these laws and the "Online Family Empowerment" section of the CDA is the use of wording open to differing interpretations and definitions, such as lewd (indecent, lustful, unchaste, lascivious ), lascivious (wanton, i.e., uncontrolled ), filthy, and indecent. Many of the words used have no legal definition. Thus, enforcement can be subjective, and may depend on political or religious agendas of those involved. Additionally, since interpretation can be very broad, this legislation can have a chilling effect on free speech, and discourage communications such as information about birth control, breast cancer and abortion. Judge Felix Frankfurter commented in 1957 upon passage of decency laws to protect children, "The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children." Mr. Edwards closed by showing an article describing FBI investigations of CompuServe that have already begun, and giving several references for more information: Wired magazine's Netizen page at www.hotwired.com/netizen, Electronic Privacy Information Center at www.epic.org, and the Electronic Frontier Foundation at www.eff.org A lively Q&A session followed, with the panel convened on stage until 9 PM.

The next RMIUG Meeting will be Tuesday, June 11; 7-9 PM; Department of Commerce in Boulder. The title is "Tech Web Fest: the Server-Side Perspective" with speakers from SuperNet and Netscape's new Boulder office. It will feature presentations followed by a Q&A session.

RMIUG wishes to thank Internet One of Boulder for continued sponsorship of refreshments, NIST for the use of their meeting room, and XOR Network Engineering for maintenance of RMIUG's WWW site and email lists.

Suggestions/comments/feedback are always welcome - please email these to rmiug-comm@rmiug.org.

RMIUG has 3 email lists for its members. Send an Email to rmiug@rmiug.org for an auto-reply message with more information or check out our Web Site at http://www.rmiug.org/rmiug/

Dan Murray (dan@rmiug.org)