Rights and Responsibilities of Participants in Networked Communities (1994) / Chapter Skim
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Pages 31-54
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From page 31... ...
According to this view, there is something new and unusual about the new electronic environment that may need special legislation to protect its unique qualities. Others argue that there is no particular need for network-specific laws, as existing laws for the most part cover miscreant behavior that might occur on networks.
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From page 32... ...
is: "Just leave us alone." At the same time, advocates of this view do recognize the need for defining socially acceptable behavior; their method of choice for promoting such behavior is education that appropriately socializes participants in networked communities. Nonetheless, existing law does have an impact.
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From page 33... ...
Included are the copyright and patent systems, prohibitions against denial of human rights without due process, the right of free speech and assembly, immunity from unreasonable search and seizure, and protection against self-incrimination. A long history of Supreme Court decisions finds that the Constitution contains an implied right of privacy, although the boundaries of this right are subject to considerable debate.
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From page 34... ...
FECAL C~SI~ER~TI~S FOR ELECTN~NIC NET~RKS 33 lIllD-IlII IlIIIl~f~l-~ ~.~(S~^~ ~.~.~^~ ~S~.~ · s sss#> IS · a: i~ · ~:S:S#S^S~SS:SSSSSSS2Si~Si:S: Asia sag s an }~ II~ < }I! 11111 S4~1 S s sass ~1~ S)
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From page 35... ...
Since it is often unclear how existing statutory and/or case law ought to apply to any given instance involving electronic networks, the views of judges and juries will often set new precedents in this arena. Moreover, since in practice it is often expensive to litigate in defense of one's position, unfair or inappropriate legal advantages may accrue to those who have the resources to defend a potentially controversial interpretation of existing law.
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From page 36... ...
Next in importance as a legal model for the network environment is the cooperative an arrangement whereby independent entities of equal status come together to achieve a common purpose and to share costs as well as profits. EduNet is best classified as a cooperative because it is put together so as to have some legal weight.
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From page 37... ...
It is analogous to the concept of "common carrier" as used in the world of telephony.) Only a few publicly funded networks, such as the Santa Monica Public Electronic Network (PEN)
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From page 38... ...
Thus, it is necessary to identify how electronic networks might be ~new" Tom ~ legal perspective. One obvious difference is that territorial jurisdictions are largely irrelevant to the electronic environments except perhaps in the ini 3This is Sue in the sense that once connected to ~ network, a user can often electronically cross political boundaries Dim relative ease.
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From page 39... ...
As noted in Appendix A, e-mail can be used to support a mode of communications often known as bulletin boards in which a message posted to a bulletin board by one user is distributed via e-mail to all of the other subscribers to that bulletin board. Some electronic bulletin boards start as a mechanism to deliver private communications among a small group of friends.
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From page 40... ...
A further complication is that it is not only electronic networks that are assuming new functions: established media are also doing so, and there is a lack of consensus on which models and precedents are appropriate for what purposes. The regional Bell holding companies7 (RBHCs)
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From page 41... ...
In presenting this capability to manipulate and disseminate information, electronic networks provide the underpinning of an electronic marketplace in which some information is shared, some is sold, and some is merely transmitted. The challenge today is to devise a legal regime appropriate for the capabilities enabled by the technology now available.
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From page 42... ...
Today there is a considerable effort to achieve a more uniform way of treating confidentiality of medical records, in order to assure individuals a measure of personal privacy and to not inhibit too strictly the transfer of medical information that would benefit both the patient and the public's interest in a healthier society. · A publicity right is one that gives each individual the right to disclose information freely in the public domain or to demand compensation for public release.
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From page 43... ...
· Liability is the domain of tort law where acts of negligence, abuse, neglect, and misuse cause damage that can be redressed through litigation in the civil courts. (Civil liability is often synonymous.)
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From page 44... ...
have marked relevance to it; in addition, as the National Information Infrastructure moves from concept to reality, evolving and assuming increasing prominence, a number of legislative and regulatory factors may begin to influence interoperability.8 COURT CASES LAWYERS RELY ON FOR AUGUMENT Lawyers and their clients look to existing case law for guidance in arguing their cases before the courts. They can choose from hundreds of court cases in which the established communications media have litigated their differences and grievances.
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From page 45... ...
Such service providers may assume that they reside in the same legal niche as the bookstore or the newspaper stand, which may not be the right niche or the ultimate niche into which the law will assign these new electronic services. One danger could come from trying to apply the publisher model to electronic bulletin boards.
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From page 46... ...
The Feist case (Box 3.6) clarified the outer boundaries of the copyright law, holding explicitly that facts are not copyrightable.
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From page 47... ...
It concerns the question of what amount of reverse engineering of software is permissible in order to understand the underlying concepts, which are not protected by copyright law, and knowledge of which, according to an amicus brief prepared by a group of intellectual property academics, is essential to achieve interoperability of software.9 Incompatibility of software (lack of interoperability) is a major deterrent to the rapid development of networks and an area of the law demanding of public attention.
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From page 48... ...
held that electronic communication can be a public record and be subject to the Freedom of Information Act, the Federal Records Act, and the Presidential Records Act. A case with similar elements was raised in May 1994 that involves the refusal of a state university to disclose e-mail messages sent to university administrators.l° The individual wishing to see those mes 10See Thomas DeLoughry, "University of Michigan Refuses to Release E-Mail of Administrators," Chronicle of Higher Education, Vol.
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From page 49... ...
In this case, the court placed on bulletin board operators that charge fees for access a substantial burden to review files accessible on their systems for possible copyright violations, though the extent of this burden was not definitively established by this case. Finally, an early but important computer case is Ford Motor Credit
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From page 50... ...
SPECIAL PROBLEMS AND POLICY CONCERNS Makers of public policy must grapple with a number of concerns that arise in the electronic environment. One concern has already been discussed in a previous section, namely the confusion over the legal models that apply to organizations engaging in electronic communication.
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From page 51... ...
On electronic networks, especially those associated with commercial information services, many people assume a different electronic "persona" that is not associated with a real person. Anonymity conveys both benefits and drawbacks.
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From page 52... ...
Internet "netiquette" looks down on advertising messages that are publicly broadcast. Yet it is easy to find Internet messages that look very much like 1lFor example, a commercial advertisement posted throughout Usenet, a network consisting primarily of bulletin boards devoted to various topics, has been widely condemned in the affected community.
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From page 53... ...
It is arguably safer to assume that the writer is asserting a claim of copyright, and some "netiquette" rules direct the potential re-user to seek permission to report the message, but the legal murkiness remains. Related is the question of what is subject to the Freedom of Information Act and the various sunshine laws.
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From page 54... ...
; and (4) the ownership of the network activity (public versus private control)
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