he is a globalist and an internationalist however
Well, if we are going run with this Nationalist idea, the internet becomes a problem area too..
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Borders return to the internet
By Patti Waldmeir
news.ft.com
Published: December 15 2002 20:29 | Last Updated: December 15 2002 20:29
When an Australian court ruled last week that Australian law could be used to protect the rights of an Australian businessman living in Australia, cyberspace shuddered. It was the first time in internet history that a nation's top court - in this case the Australian High Court - had claimed sovereignty over the stateless wastes of cyberspace (where an article allegedly libelling the businessman appeared). The demise of the internet was widely predicted.
The mere act of speaking on the internet was portrayed as dangerous: if Australia could pursue Dow Jones, the US publisher of the article, for material loaded on to a server in New Jersey, what could stop any other country with a court system and enough electricity to run a personal computer from attacking any website, anywhere?
A groundbreaking lawsuit
Developed in the Netherlands, distributed from servers in Denmark by a company managed from Australia and incorporated in Vanuatu with source code in Estonia, Kazaa captures the original borderless spirit of the internet. Read
The court's ruling challenges a vision as old as the internet itself: of cyberspace as a sort of eighth continent - without borders, or laws, or governments to limit it. True, as the medium matured that vision was already looking increasingly delusional. But the Australian ruling is the clearest sign yet that life online is, in many ways, just like life anywhere else: subject to the whims of courts and the laws of nation states and very much grounded in geography.
"We used to think of the internet as a borderless medium without laws, because laws stop at national borders," Michael Geist, an expert on internet law, told a conference of lawyers in Washington recently. "But now that is being reversed. The internet is increasingly becoming bordered and the laws are increasingly becoming borderless."
Mr Geist, who was recently appointed to lead a new American Bar Association project on internet jurisdiction, sees the Australian ruling as confirming that trend: "Courts around the world are sending a very clear message: they are not going to take a hands-off approach just because it's the internet. They will assert jurisdiction for online activity whenever the harm is targeted, or has an impact locally."
Courts and legislatures alike increasingly reject what used to be taken as a truism: that it is impossible to map bordered laws on to borderless cyberspace. The notion that revolutionary new legal concepts were needed for the internet "has gone the way of the dotcom bubble," says Mr Geist. "When it burst, so did the notion that the old rules no longer apply."
But applying the old rules to the new medium is not easy. Increasingly, legal experts say, it leads to clashes between different national laws and to cases where the values of one nation are imposed on another via the courts.
The Australian case illustrates the risk of such imperialism. Critics say Australia is, in essence, imposing its concept of free speech on Americans because its libel law is much more friendly to plaintiffs than to publishers - and Dow Jones is being forced to defend itself under that law.
Dow Jones wanted the opposite: it wanted American values to be used to judge alleged harm to an Australian in Australia. Not surprisingly, the High Court declined to see its citizen's interests judged by a standard inspired by the First Amendment to the US constitution.
And for all the clamour about an Australian court attacking American free speech, says Mr Geist, the US courts are just as guilty of ruling extraterritorially, especially in the area of copyright law. Lawrence Lessig, a leading theorist of the internet, agrees: "The US goes nuts every time a libel verdict is imposed against [it] but doesn't even notice when a copyright verdict is rendered against a foreign site."
The potential for such clashes is as old as international commerce. But since the internet vastly expands transnational contact, it also multiplies opportunities for disputes. Indeed, Dow Jones argued that if it could be sued in Australia (because the allegedly offending article was downloaded there), it could be sued anywhere on earth.
Australia's top court rejected that argument, saying lawsuits were likely only in the place where the plaintiff had a reputation to protect and the defendant had an asset to seize. In most cases, that would rule out Vanuatu, or any of the other theoretical venues for such globalised litigation, experts say.
"Enforcement does obviate a lot of the theoretical problems with such rulings," says Margaret Stewart, jurisdiction expert at Chicago-Kent College of Law. US courts traditionally will not enforce foreign rulings that violate US law. And enforcing rulings in other jurisdictions will require that a defendant have assets there.
Big media companies such as Dow Jones do, of course, have assets in many countries and so face the risk of liability in many places. But, legal experts say, they also increasingly have the ability to avoid that liability, by identifying computers geographically and using that information to block access to their site. With such tools, borders can increasingly be mapped back on to the internet. Online publishers that want to avoid the libel regime in Zimbabwe can block access from computers in Zimbabwe. Less and less persuasively can they protest that their content ended up there by accident. With greater control over the geographical distribution of online content comes greater responsibility to obey local laws, legal experts say.
So big companies are increasingly able to avoid global liability. Smaller operators, including myriad citizen publishers of cyberspace, probably need not worry. They may be sued in foreign climes but they are unlikely to have anything there worth losing.
Small publishers received further legal comfort last week when a federal appeals court in the US ruled in their favour in a libel case similar to the one in Australia. The US case involved two Connecticut newspapers that allegedly defamed a prison warden in Virginia. The offending article was available on their websites.
The fourth circuit court of appeals found that the plaintiff could not sue in Virginia even though his reputation was damaged there, because the publications "did not manifest an intent to aim their websites or the posted articles at a Virginia audience".
The US court took the opposite view to the Australian one: it ruled that downloading an article and allegedly harming a reputation in the same place were not enough to establish jurisdiction there.
But, says Mr Geist, the rulings are not as contradictory as they appear: the issue is targeting. Dow Jones has many subscribers in Australia and a big international operation; the Hartford Courant in Connecticut is a purely local affair. In the pre-internet world, Dow Jones could potentially be sued in many places around the world and the Hartford Courant in few. According to the latest appeals court ruling, things may not be that different online and off-line.
It is too early to say whether the fourth circuit judgment will be followed by other courts in the US, let alone the Supreme Court, which has yet to pronounce on any case involving online jurisdiction. But, in the weeks to come, there is likely to be a flurry of US lower court decisions testing the limits of American sovereignty in cyberspace. A jury in California will continue deliberations today on whether a Russian company committed a crime under US copyright law by selling a computer program that cracks encryption of electronic books.
Dmitry Sklyarov, the Russian programmer who wrote the software, became a cause célèbre for internet civil libertarians when he was arrested on a trip to a hacker convention in Las Vegas. He became the first person to be indicted under the criminal provisions of the new digital copyright law. (Charges were later dropped in exchange for his testimony at the trial of his employer, ElcomSoft.) ElcomSoft's activities broke no law in Russia. The question now before the jury is whether the company knew it was violating US law with its activities in cyberspace.
If the US is finding it hard to exert sovereignty over the internet in the ElcomSoft case, the effort pales in comparison with the lawsuit that pits the US entertainment industry against Kazaa, the online file-swapping successor to the defunct Napster. That suit captures the essence of the challenge: with servers in one place, source code in another, incorporation elsewhere and management often nowhere to be found, Kazaa presents a unique challenge to the exercise of sovereignty (see left).
A federal judge is expected to rule soon on whether Kazaa can be sued in the US, since it has almost no contacts with America apart from the millions of Americans who use it to do things, including pirating music.
Further word is also awaited on the case that first mapped geography on to the internet: the Yahoo case in France. A federal district court in California has said that a French court ruling holding Yahoo liable for allowing French citizens to access Nazi memorabilia on its US website could not be enforced in US courts. The case was recently argued before the ninth circuit federal court of appeals in California.
The problem, says Mr Geist, is that "everyone has their Yahoo": US courts try to impose their copyright law across borders; Europeans their privacy standards; and Australians their anti-gambling laws.
The export of national laws threatens the sovereignty of nations worldwide, especially smaller ones, he warns. Because of the internet, their policy choices are increasingly being made outside their borders.
But for James Boyle, another leading theorist of the internet, there is a greater moral authority problem than the one posed by governments enforcing laws across borders.
"The real risk is enforcement by intermediaries," he says, citing a recent trend by the entertainment industry to use internet service providers and others to crack down on piracy.
The industry is trying to enlist American colleges to police file-swapping among students; and in Denmark an anti-piracy group sent out bills for material downloaded from file- swapping sites, after getting the names and addresses of users from their internet provider. Financial intermediaries such as Paypal, the online payments service, and credit card companies are also being used as surrogates to punish online activities.
Such private intermediaries need not respect any law, constitution, or democratic principles, Prof Boyle says. "That is a much [bigger] challenge to democracy than whether an Australian court is going to enforce a libel judgment."
Prof Boyle and other legal experts agree that, in the words of Margaret Stewart, "the world as we know it has not changed for ever" because of the internet. "Of course the internet is different - but the question is whether the problems it poses are unique [and] common law tools [in use for hundreds of years] cannot be used to make it work in the 21st century," he says.
Gone are the days when John Perry Barlow, visionary of the internet, could declare the independence of cyberspace, predict the demise of the nation state and claim: "Governments of the industrial world, you weary giants of flesh and steel, you are not welcome among us."
As Prof Lessig has written in his book The Future of Ideas: "[Recent developments] suggest that the future will be very much like the past: life on the future internet will be regulated locally, just as life before the internet was regulated locally." The nation state is not so easily vanquished.
Developed in the Netherlands, distributed from servers in Denmark by a company managed from Australia and incorporated in Vanuatu with source code in Estonia, Kazaa captures the original borderless spirit of the internet.
The lawsuit against the online file-swapping service by the US entertainment industry is, according to Michael Geist, the "prototypical internet case" for a new era of cross-border litigation.
Since the demise of Napster, the worldwide music swapping service forced into bankruptcy by lawsuits, Kazaa has emerged as the most popular of the so-called "peer-to-peer" networks that allow users to find and copy music, films, videos and writings, often in violation of copyright law.
Copyright holders claim 20m people in the US use Kazaa, most often for piracy, and are are trying to use the US courts to shut the service down. They are awaiting a ruling from a federal judge in California on whether he has jurisdiction over Sharman Networks, parent company of Kazaa. The issue is whether Sharman has established enough of a presence in the US to be sued in federal court.
Sharman has no assets in the US, though it does have contracts with US advertising agencies. Legal experts say the judge is likely to allow the suit to proceed, since its software is downloaded by US users and it makes money by selling advertisements on that basis.
Sharman is arguing there is no legal or moral basis for US jurisdiction. It has said that any court ruling against it could affect 60m users in 150 countries, not just in the US. Sharman's lawyers have condemned the suit as equivalent to a "court order to export the strictures of US copyright law worldwide".
But even if the entertainment industry prevails in the jurisdiction battle, the lawsuit itself may be harder to win, legal experts say. Kazaa is different from Napster, which relied on a company computer to help users find songs. Kazaa's system uses no central computer. It merely provides the software needed for users to swap files themselves.
Kazaa has already defended its innocence in the Netherlands: a Dutch appeals court has ruled it legal to distribute Kazaa software there. "Insofar as there are acts that are relevant to copyright, such acts are performed by those who use the computer program and not by Kazaa," that court has ruled.
Those who use software to download copyrighted files are almost certainly liable for copyright infringement in most countries.
But the question for the US court is: does distributing software that facilitates piracy but could also be used for legitimate purposes also break the law?
The trial judge seemed open to the argument that it does not. Referring to the federal appeals court ruling that shut down Napster, he said at a recent hearing: "The Napster court stated that supplying software alone was not enough. I think it is clear there is a difference between Napster's configuration and this configuration."
But even if the entertainment industry wins the suit, experts question how a judgment can be enforced. They point out that when a lower Dutch court ruled against Kazaa, its original Dutch owners just sold the right to distribute the software to Sharman and it remained freely available. |
