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Published online by Cambridge University Press: 27 October 2017
The internet belongs to that important group of phenomena that require a fundamental rethinking of law and its ultimate change. The rules made for printed media could not be applied to radio or television when they appeared. Traditional regulatory models for electronic communication arguably cannot be carbon-copied into the Internet world. Like other revolutions brought about by science, the Internet does not lend itself to current regulatory models but requires their rethinking.
1 There has in the past been considerable debate over this. See Goldsmith, J ‘Against Cyberanarchy’ (1998) 68 University of Chicago Law Review 1199 CrossRefGoogle Scholar.
2 One difference between the two is that the economic incentive to have international air travel regulated forced international cooperation at a relatively early stage.
3 United States pornography industry is worth at least $10 billion annually.
4 See Odlyzko, A ‘Privacy, Economics and Price Discrimination’ Digital Technology Center, University of Minnesota, published on the Web at http://www.dtc.umn.edu/~odlyzko, 27 July 2003Google Scholar.
5 Lessig, L Code: and Other Laws of Cyberspace (New York, Basic Books, 1999)Google Scholar. See also Benkler, Y ‘From Consumers to Users: Shifting the Deeper Structures of Regulation’ (2000) 52 Federal Communications Law Journal 561 Google Scholar.
6 See UEJF et LICRA v Yahoo! Inc et Yahoo France, TGI Paris, Ordonnance de référé du 22 mai 2000; Dow Jones & Company Inc v Gutnick (2002) 194 ALR 433, [2002] HCA 56 and RIAA v Verizon Internet Services, 240 F Supp 2d 24 (DDC 2003).
7 More on these issues, Lessig, L Free Culture (New York, Penguin Press, 2004)Google Scholar; Lessig, L The Future of Ideas: The Fate of the Commons in a Connected World (New York, Vintage Books, 2003)Google Scholar.
8 Some of the more important directives are the Directive 2001/29/EC on the harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, [2002] OJ L167/10, the Directive 92/100/EEC on Rental Right and Lending Right and on Certain Rights Related to Copyright in the Field of Intellectual Property, [1992] OJ L346/61, the Directive 93/98/EEC Harmonising the Term of Protection of Copyright and Certain Related Rights, [1993] OJ L290/9, the Directive 96/9/EC on the Legal Protection of Databases, [1996] OJ L77/20, the Directive 95/46/EC on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 OJ L281/31, the Directive 2002/58/EC on Directive on Privacy and electronic communications, OJ [2002] OJ L201/37, the Directive 97/7/EC on the Protection of Consumers in Respect of Distance Contracts, [1997] OJ L144/19, the Directive 2000/31/EC on Electronic Commerce [2000] OJ L178/1, the Directive 1999/93/EC on a Community Framework for Electronic Signatures, [2000] OJ L13/12, and the Directive 91/250/EEC on Legal Protection of Computer Programmes, [1991] OJ L122/42. For a more detailed overview see ‘EC Computing, Telecommunications and Related Materials’ (2003) 9 Computer and Telecommunications Law Review N–115 Google Scholar.
9 SS Lotus, PCIJ Series A No 10,1927.
10 See n 6 above.
11 Judgment of 12 December 2000, Bundesgerichtshof (BGH), Az: A StR 184/00.
12 Significant Developments in Global Internet Law in 2003, Report, (Covington, 2003), p 8 available at http://www.cov.com./download/content/brochures/Global_Internet_Report.pdf/.
13 See ‘Mugabe vs the Internet’, The Guardian, (17 June 2002).
14 Matusevich v Telnikoff, 877 F Supp 1 (DDC 1995).
15 C–120/78, [1979] ECR 649.
16 Joined Cases C–267 and 268/91, 1993 [ECR] I–6097.
17 C–76/90, [1991] ECR I–4221.
18 C–55/94, [1995] ECR I–4165.
19 Directive 2000/31/EC of the European Parliament and of the Council of 8 June on Certain Legal Aspects of Information Society Services, in Particular Electronic Commerce, in the Internal Market (Directive on Electronic Commerce), see above, n 8. For more detail see Pearce, G and Platten, N ‘Promoting the Information Society: The Directive on Electronic Commerce’ (2000) 6 European Law Journal 363 CrossRefGoogle Scholar. This directive is complemented by Directive 98/34/EC on transparency for Information Society Services, [1998] OJ L204/37 as amended by Directive 98/48/EC, [1998] OJ L217/18.
20 Relating to taxation, data protection, notaries, gambling and representation in court.
21 Articles 2h and 3, determining the scope of provisions needing harmonisation.
22 For a detailed treatment of this topic see See StOren, J ‘International Jurisdiction over Consumer Contracts in e-Europe’ (2003) 52 ICLQ 665.
23 Consolidated version in [1980] OJ L266/1–19.
24 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, [2001] OJ L12/1–23.
25 Dow Jones & Co Inc v Gutnick [2002] HCA 56 (10 December 2002).
26 First Civil Chamber, 2003/319 KG en 2003/325 KG.
27 See Significant Developments in Global Internet Law in 2003, Report, (Covington 2003), p 27, available at http://www.cov.com./download/content/brochures/Global_Internet_eport.pdf/.
28 See n 12 above.
29 952 F Supp 1119, 1126 (WD Pa 1997).
30 465 US 783 (1984).
31 315 F 3d 256 (4th Cir 2002).
32 For problems concerning assertion of jurisdiction in Internet cases in the United States and controversies surrounding present approaches see Dawson, C ‘Creating Borders on the Internet: Free Speech, the United States, and International Jurisdiction’ (2004) 44 Virginia Journal of International Law 637 Google Scholar. Federalism here means that when state law is applied, regard must be had to purposes of the Federation.
33 The basis for this is Matusevich v Telnikoff, 877 F Supp 1 (DDC 1995), where recognition was refused to an English libel judgment.
34 Council Regulation (EC) No 44/2001 see above n 24.
35 In Berezovsky v Forbes [2000] 1 WLR 104 (HL), an American magazine was sued in respect of defamation. The Russian claimants alleged that their reputation in England was harmed but the House of Lords rejected to decline jurisdiction on the basis of forum non conveniens: English courts assert jurisdiction in defamation cases where no English nationals suffered harm, as long as the claimant can establish reputation in England.
36 Article 5(3).
37 C–21/76 Bier BV v Mines de Potasse D’Alsace SA [1978] ECR 1735.
38 C–68/93 [1995] ECR I–415.
39 In such cases public policy and mandatory rules may not be enough.
40 Such as those listed in §6 of Restatement Second of Conflict of Laws.
41 Such as Rome I Convention on Law Applicable to Contracts and Draft Rome II Convention on law Applicable to Tort.
42 See Pielemeier, J ‘Choice of Law for Multistate Defamation’ (2003) 35 Arizona State Law Journal 55, 42Google Scholar.
43 Johnson, D and Post, D ‘Law and Borders—The Rise of Law in Cyberspace’ (1996) 48 Stanford Law Review 1367, 1378CrossRefGoogle Scholar.
44 For other views see Lessig, L Free Culture (New York, Penguin, 2004) 277–87Google Scholar.
45 COM(2003)427(01). Rome Convention on the Law Applicable to Contractual Obligations contains rules on choice of law for contracts, see above n 23.
46 See ‘Position Paper on the Proposal to Adopt the Amended Brussels Convention and the Draft Rome II Convention as EU Regulations Pursuant to Article 65 of the Amsterdam Treaty’ Advertising Association, July 1999, on http://www.adassoc.org.uk/position/convent.html.
47 For more detail see Lessig, L The Future of Ideas (New York, Vintage, 2002)Google Scholar and idem, Free Culture (New York, Penguin Press, 2004).
48 See Eldred v Ashcroft, Supreme Court No 01—618.
49 Malcolm, John G, Deputy Assistant Attorney General, ‘Privacy and Intellectual Property—Legal Issues Related to Peer-To-Peer File Sharing Over the Internet’, New York State Bar Association & International Bar Association, (Amsterdam, The Netherlands—23 October 2003)Google Scholar.
50 WIPO Copyright Treaty, adopted in Geneva on 20 December 1996.
51 Study by Oberholzer, H of Harvard Business School and Strumpf, K of University of North Carolina, at http://www.unc.edu/~cigar/papers/FileSharing_March2004.pdf. See also Proschinger, J ‘Piracy is Good for You’ (2003) 14 Entertainment Law Review 97 Google Scholar.
52 The critical literature of the act abounds. See, for example, Kretschmer, M ‘Digital Copyright: the End of an Era’ (2003) 25 EIPR 333 Google Scholar, Perritt, J ‘Protecting Technology Over Copyright: A Step too Far’ (2003) 14 Entertainment Law Review 1 Google Scholar.
53 The famous US v ElcomSoft & Sklyarov case which was settled.
54 Agreed Statement to Article No 10.
55 See Ginsburg, J C ‘Copyright and Control over New Technologies of Dissemination’ (2001) 101 Columbia Law Review 1613 at 1631CrossRefGoogle Scholar.
56 While making a copy of a CD for in-car listening is technically possible and legal, copying a DVD is illegal, while technically possible. See Universal City Studios, Inc v Reimerdes, 82 F Supp 2d 211 (SDNY, 2000) and DVD Copy Control Assn v McLaughlin, No CV 786804, 2000 WL 48512. Legal brilliance is not required to see that there is something wrong here.
57 European Parliament and Council Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the information society, see above n 8.
58 See Articles 5(2), 5(3) and 6(4).
59 See Perritt, J, above n 52 2.
60 All that is required today is modest knowledge of operating systems and a search on the Internet.
61 Original Proposal for a Directive of the European Parliament and of the Council on Measures and Procedures to Ensure the Enforcement of Intellectual Property Rights: COM(2003)46 final, 30 January 2003. After considerable criticism a slightly changed proposal in Council document 6367/04 of 16 February 2004 (8 March 2004). Directive 2004/48/on the Enforcement of Intellectual Property Rights, [2004] OJ L157/45. Hereinafter, The Directive.
62 While the Directive does not relate only to the Internet, its impact in that area will be particularly significant, since it brings EU legislation further in line with that in the US.
63 This is mainly due to ambiguities of Article 13(a).
64 And it potentially raises issue of compatibility with Human Rights Act. See Birnhack, M ‘Acknowledging the Conflict between Copyright Law and Freedom of Expression under the Human Rights Act’ (2003) 14 Entertainment Law Review 24 Google Scholar.
65 Article 10(2).
66 RIAA v Verizon Internet Services, 240 F Supp 2d 24 (DDC 2003), reversed by the decision of the Supreme Court No 03–7015 (DC Cir 19 December 2003).
67 See Cornish, W et al ‘Procedures and Remedies for Enforcing IPRS: The European Commission’s Proposed Directive’ (2003) 25 EIPR 447, 448Google Scholar.
68 By governance we mean the problem of regulating the Internet and not only allocating domain names as it is sometimes used.
69 See C, Crews and Thierer, A ‘Introduction’ in Crews, C and Thierer, A (eds) Who Rules the Net (Washington, DC Cato, 2003), p xv Google Scholar.
70 See United States. White House Office A Framework for Global Electronic Commerce Washington, DC, White House, 1997 Google Scholar.
71 It suffices to mention the USA Patriot Act (HR 3162).
72 C–376/98 Germany v Parliament and Council [2000] ECR I–8419.
73 How unclear the Commission itself was on the future impact of the Directive can be seen from First Report on the application of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on Certain Legal aspects of Information Society Services, in Particular Electronic Commerce, in the Internal Market (Directive on Electronic Commerce) Brussels, COM(2003)702 final (21 November 2003).
74 Crews, C and Thierer, A, above n 69, p xxxiii and Kightlinger, M ‘Cyberage Conflicts Law: A solution to the Yahoo! Problem? The EC Directive as a Model for International Cooperation on Internet Choice of Law’ (2003) 24 Michigan Journal of International Law 719 Google Scholar. By choice of law the author here understands international legislative jurisdiction.