Developement of Internet and Cyberspace Law
In the U.S., the first internet connection was developed in the military function. The development of the computer and cyberspace area can be divided into four primary periods of development:
(1) 1960 – the stand alone device; and 1965 – wide spread of internet connection; (2) Government Sponsorship during 1966-1967 – MIT researcher joins Defense Advanced Research Projects Agency for ARPANET; and 1969 – ARPANET;
(3) Technical Standardization;
(4) Commercial Expansion.
The activities on cyberspace were rarely governed by any law; some scholars, such as Judge Easterbrook, thought that the lawyer and the court should not involve the conflicts deriving from those activities; the law school and judge should focus only on the substantive law that were clear enough for them to control and judge. As a result, there should be special organization set up to solve the conflicts between the involving persons.
Subsequently, Professor Lessig disagreed with such proposal. Internet and cyberspace can be governed by several components. The four parts that relate to the cyberspace area are: (1) Law; (2) Market; (3) Norms; (4) Code or the architectural structure of cyberspace characteristics.
The Lessig’s Idea – he focuses on the code or the architecture of rule of law can be used to govern the cyberspace activities. Unlike Judge Easterbrook, who strongly disagreed to teach the cyberspace law in law school, Leggig strongly affirm that the cyberspace law can be regulated especially by the code or architecture of the internet characteristics.
Discussion of Richard Diebenkorn (1922-1973): Do we need to treat an activity in cyberspace differently form that in the real world?
This situation is the commodity auction of the art piece, which becomes the fake art. The problem is why we should care about the regulation to govern the way to bid. Some reason might be explained following here. In the real world of auction, we can consider if the bidders are the real persons who participate in the bid but in cyberspace we cannot distinguish one bidder from other. The fraud might happen if we don’t protect the online market. One argument is that the e-bay must protect its reputation by implementing any measure to prevent fraud; then, there should not be any law to govern this area of activity. In contrast, we need some regulation to prevent the fraudulent activities on internet.
Why should we think about the risk assumption on the real world is different from the only activity? People who assume the risk on the online activity should be treated differently from the people an illegal activity in the real world? Several people might conspire to bid the price higher than the real one to persuade other to join the bidding and offer the higher price. One argument is that unless those conspirators, the bidder, who was deceived, will not offer the higher price if he or she knows that it is not the real auction. Without any regulation, the market has been distorted easily and there will be the economic harms from illegal activity.
[Pleae visit: http://www.cybercrime.gov/ebayplea.him to explore more details.]
January 19, 2006
The question is whether the internet world should be treated differently from the real world such as speech on internet. Cyberspace world might be regulated by several ways, such as, law, norms, or market as mentioned above. The market can influence to the buyer and purchaser by several means, for instance, standard setting or reputation evaluation of some organization: the BBB, GH, Moody’s organization practice, which might be the market rating of the trustfulness. How do the norms regulate the cyberspace world? For the 1L student, the Whale case hints us how norms guide the people to comply with. Without any law, the norms are dominant for the people’s life; the court always approves such norms as the law to govern the people’s life as well.
Today, we will explore about the property on cyberspace and the property should be treated differently or the same. On page 27 of Patricia, et al Book will guide us how the court treats the issue of online activities.
eBay Inc. v. Bidder’s Edge, Inc.
This case generates a lot of legal academic articles. In 1995, an eBay was the well-known site at that time; Bidder’s Edge or BE was the company that gathered the information about the auctions from all over websites including eBay website. BE acted as the medium person to the general people who did not want to secure any auction by themselves. BE applied the spider or automatic device to gather the information from eBay as an aggregation of all products offered by several sellers.
eBay’s theory – an English Common Law, called “TRESPASS TO CHATTELS.” Because eBay’s website will not get any protection of copyright law, eBay asserts that it must maintain website and other information to keep the computer run for its own customers. eBay asserts that its property rights has been infringed by BE because eBay’s website cannot work efficiently due to the obstruction of BE’s system over the eBay’s system.
The question is this act is sufficient to deem as the trespass to the property of eBay committed by BE. The court in this case focuses on the possibility of the future harm if letting BE acts in this fashion, that is, the eBay computer system might crash because of the traffic congestion, which might be committed not only by BE, but also by other companies.
The court rules only using other’s property in certain way, it is enough to get relief junction; in this case, BE crawls an eBay website; it is enough to say that the property right of eBay has been violated.
Many scholars think the decision is incorrect. The concerns enunciating by the court has never happened; it is virtually impossible to happen because of the practice in the same way as that of BE. [See page 32-34.] The theory of Trespass to Chattels is different from the court established in this case.
Under the Trespass to Chattels under Rest. (2d) Torts § 217. The elements are:Ways of committing trespass to chattel.
A trespass to a chattel may be committed by intentionally
(a) dispossessing another of the chattels, or
(b) using or intermeddling with a chattel in the possession of another.
Under §218, the trespasser will be liable to the owner only in the situation of (a), (b), (c), or (d), that is, there must be some impairment to the owner.
The question is where the harm impacted to an eBay. eBay has no right on the information posted on eBay. In this has, the information is not the real or physical property in the same way as the house, or dog. Here, there is no evidence about the impairment of eBay computer system.
January 20, 2006
Review eBay case:
Many scholars criticized this decision; they disagreed with the court because:(1) eBay theory was not satisfied the theory of trespass to chattels; there must be some physical touching or invading; this case there is no interference in the scope of this theory in eBay theory;
(2) eBay attempt was failed; there was no property right in the case that eBay gathered information and posted such a bunch of information on its website. The attempt to assert the property right in this case cannot be satisfied by the intellectual property law concept.
However, some theory might be good enough for eBay to assert, that is, “misappropriation.’ In INS v. AP News, the court decided that INS had no authority to copy any news gathered by an AP Agency and sold it to the public. Even though such news was distributed to public and there was no intellectual property right to be protected, INS could not misappropriate and exploited from other’s effort. INS must be liable for AP News.
Today, the issue is whether the act in the cyberspace like in a game can be hold liable as a crime. Article “A Rape in Cyberspace” indicated the facts that Mr. Bungle committed a rape crime in the LambdaMoo game. He had been stalking others and raping them in the living room of such game. Such conducts caused an emotional distress to the game players.
You recall that the criminal act under the traditional criminal law must be composted of physical act, called Actus Reus, and mental element, called Men Reas. There is no real physical act in this particular fact. The game players volunteer to participate in an online game; no emotional distress can be proved; no real rape crime happened. How can we deal with this act?
The rest articles are about the virtual crime, called theft, in an online game. The questions are such data, which indicates that you have a weapon that can be sold, can be deemed property right, and if it is stolen, such conduct can be deemed a criminal act in the real world. In the U.S., there is no precedent case about this issue. How can we deal with this one? However, in the second case, the weapon in the game was sold by other; then, the game player who secured such data got mad and killed his friend who sold such information to other. This particular fact, a person who secured a weapon, subjected to the same problem, that is, whether he can assert that he has property right on such information. Under the Chinese law, there is no property right and there is no criminal law to govern such act.
January 25, 2006
Today, we accept that the activities on cyberspace should be governed by the law. Another problem is that there is no clear rule in several aspects. The court jurisdiction is another problem that the law has to deal with.
Typically, when we talk about the jurisdiction, we have to determine if the court can exercise its authority on the case dispute. We have to know that some court has general power to try the case; others have the specific power on some types of dispute. Firstly, we have to consider what the subject matter of the case dispute in particular case. Another type of jurisdiction is the personal jurisdiction.
Personal Jurisdiction
Under the federalism system, each court has its own jurisdiction, normally, only in its territory and only on. Subsequently, the state court extends its jurisdiction on some activities to protect its citizen. Forum state’s long-arm statute or federal statute is the law that entitles the authority to the state court over the dispute. However, even though the law might extend the broad protection to its citizen, it must conform to the Due Process clause of the United States Constitution.
Long-Arm Analysis:
Defendant’s action must come within the scope of the forum state’s long-arm statute; for example, the defendant must render some “transactions” within the forum state; or, the defendant can reasonably expect that his or her activity might have some consequence in the state forum.
Due Process Analysis:
The state court might assert general jurisdiction when nonresident defendant has “continuous” and systematic general business contacts” with forum state; or the court might assert specific jurisdiction when nonresident defendant has certain “minimum contacts” with the forum state such that maintenance of suit in the forum conform to “traditional notion of fair play and substantial justice.”
The Supreme Court ruled about the personal jurisdiction based on the due process analysis as following. The court must consider if the defendant “purposefully availed itself of the privilege of conducting activities” in the state forum, or, if the defendant could “reasonably anticipate” suit in the state forum, or, if there are “effects” of the harm experienced in the forum state and capable of being anticipated there.
Even if the court considers that the due process test mentioned about is satisfied, the court might have not to exercise its authority if exercising such authority is unreasonable. The reasonable factors might be considered from several factors as following:(1) Forum’s interest in dispute;
(2) Plaintiff’s interest in obtaining effective relief;
(3) Court’s interest in obtaining efficient resolution;
(4) Defendant’s burden in defending action in forum;
(5) Plaintiff’s burden in maintaining action elsewhere; and
(6) Relation of claim to defendant’s in-state activities.
The personal jurisdiction becomes more complex when we subject to the problem of cyberspace activity. The jurisprudential challenge in the cyberspace might happen in some situation. Basically, the court is entitled the authority to solve the conflict because the sponsor of a Web site and the server upon which the information is stored is located in state forum. Some challenge might be whether the court can also exercise its authority on the Web site stored or located in other states because such Web site is accessible to computer user throughout the world.
Presently, there is not precedent decided by the U.S. Supreme Court. The scholars propose three jurisdictional regimes:(1) Subject defendant to jurisdiction in all jurisdictions where its Web site can be accessed; or
(2) Subject defendant to jurisdiction only in the location where it is physically located; or
(3) Subject defendant to jurisdiction based on a “sliding scale” test of “activity” or “passivity” in the state forum.
The first theory might be too broad. It is accepted in some court. For example, the District Court for the District of Connecticut has decided, in Inset Systems, Inc. v. Instruction Set, Inc. case [937 F.Supp. 161 (1996)] that the state court of Connecticut has the jurisdiction over the company located in Massachusetts even though the defendant company has no physical location in Connecticut.
The court reasoned that defendant has purposefully availed itself of the privilege conducting activities within Connecticut by using Internet and its toll-free number to conduct business within the state of Connecticut; those systems are designed to communicate with people and their businesses in every state, and thus invoke the benefit and protection of the lawsuit in the state of Connecticut. Moreover, the defendant can also be reasonably able to anticipate that its activity to purposefully availe itself of doing business will be subjected to the lawsuit in Connecticut.
Therefore, the court concludes that its finding of minimum contacts in this case comports with notions of fair play and substantial justice.January 26, 2006
Personal Jurisdiction [Page 149-167]
Some court will treat the “minimum contact” to exercise its authority in the slight way. Others treat it toughly. In Zippo case, Zippo Manufacturing Co. v. Zippo Dot Com, Inc, 952 F.Supp. 1119 (1997), the court decide the issue of personal jurisdiction in some details – “interaction” between the Web site and its customer. [page 151]
Defendant company is located in CA while Plaintiff company is located in Pennsylvania. The D got income from citizen in PA. There are some thousands of PA citizens subscribed to D’s Web site. The court said that even if only 2% of total income of D’s company is enough to show the minimum contact with Defendant by knowingly and repeatedly transmitting the computer files over the internet to the citizen in PA.
Defendant intentionally availed itself beyond its boundary to conduct business with foreign residence, not fortuitous event. The court established the new test, namely “the Zippo Test.”
Zippo Test
The degree of action conducted by defendant might be demonstrated from the slightest active to the highest active, or from passive action to highest active action. It is not proper to exercise the personal jurisdiction over the slightest end. But what is about the “interactive action?” How to determine this event is unclear! Professor said it is very poor guideline.
Page 156
Winfield Collection Ltd. V. McCaulley, 105 F.Supp.2d 746(2000)
Winfield, running the business in Michigan, is the patterns owner of crafts; McCaulley, running her private business, is the woman who made the crafts by herself which some of them are in the Winfield and sold her crafts on internet.
The court considers the nature of interactive action of the business in this case. The defendant posts her commodities which might violate the intellectual property law, but the defendant did not purposefully avail herself in the online activities in Michigan. The nature of auction by bidding is that the bidder who offers the highest price will win the auction. Defendant has not particularly or specifically secured any business in plaintiff jurisdiction, but it is fortuitous activity by the bidder auction. As a result, the minimum contact is not satisfied. Therefore, the court rejected the person jurisdiction in this case.
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