What Cyber Law Might Teach - Assignment Example

 What Cyber Law Might Teach Ans 1(a) Cyberspace is better regulated by law – not through its limits as the regulating factor; rather through the exercise of the law in modifying the “natural” architecture of cyberspace that will render it a more effective tool. (Greenleaf 1998). Cyberspace architecture is relatively plastic, and the law can be applied to require changes or modification of the software, codes or minimum standards. One example is the Telecommunications Act of 1997, which requires that carriage and service providers provide the ability to decrypt traffic but does not hinder individual users from encrypting their messages. (Holland 1998). This is one example of law regulating the architecture without interfering with end users or dealing with ambiguity in controls. The law modifying the architecture rests on international standards, posing the threat of action for non compliance with architectural norms without the complexities imposed by unpredictable and uncontrollable forces in cyberspace. Ans 1(b) Cyberspace has been defined as “the total interconnectedness of human beings through computers and telecommunication without regard to Physical geography.” (Gibson 1984) and “crime has ceased to be largely local in origin and effect” (Liangsiriprasert v United States). Crimes could be multifaceted and multinational, raising issues of local jurisdiction. In the case of DPP v Sutcliffe, the stalking victim and the effect of the accused’s actions occurred in Canada, but Australian Courts had necessary jurisdiction in the matter, due to exercise of personal jurisdiction based on conduct. Personal jurisdiction may also be exercised in cases that do not offend “traditional notions of fair play and substantial justice” (International Shoe v. Washington). In the United States, long arm statutes such as the Uniform Interstate and International Procedure Act can extend jurisdiction to out of state defendants. Jurisdiction was a limiting factor in Macquarie Bank Limited & Anor v Berg, but in a recent case involving Yahoo, USA, a French Court found Yahoo liable under its local jurisdiction (Yahoo, USA). Ans 2. (a) The auDu dispute resolution procedure has been set up to regulate disputes pertaining to domain names and licensing, to protect against fraudulent registration, bad faith or misuse of domain names(www.auda.org.au). But mandatory administrative proceedings for dispute resolution are limited to domain name registration are not available for other kinds of disputes. While the parties are free to approach other Courts for resolution of disputes, there is no clear indication about the enforceability of the decisions of the Administrative Panel and whether it will supersede to be subordinated to the decision of an alternative legal forum. Moreover, the Provider is expected to employ “reasonably available means calculated to achieve actual notice to Respondent” which may be difficult in some cases.(see Schedule B, Section 2: Communications). The advantages of dispute resolution though the auDu are expedited processing using a panel of experts in the electronic medium, which reduces the burden upon the Courts. 2(b) The patenting of software patents was initially rejected on grounds of subject matter being non statutory. In the case of Benson, the Supreme Court clarified; “It is said that the decision precludes a patent for any program servicing a computer. We do not so hold” . (Benson, 409 US at 71). Abstract principles based on nature were not patentable unless they served a new and useful end. In the case of Diamond v Chakrabarthy, the Court examined the definition of statutory subject matter as Congress intended in the Patent act and found it to “include anything under the sun that is made by man.” The case of In re Alapatt established that when something has a particular use in technological arts, it may be patentable. Guidelines that have now been laid out by the Patent office subsequent to Alapatt include usefulness and practical application of the product, demonstrated novelty and its inclusion in technological arts. Exclusions include abstract ideas, laws of nature and natural phenomena. (61 U.S. Federal Regulations on Patents at 7480). Ans 3 (a): Three important privacy principles established under the Privacy Act are (a) Collection of information(b) use and disclosure of information (c) accessibility of data and corrections. TICA (Default Tenancy Control Pty Ltd) which operates a tenancy database, was recently held to be liable under the Privacy Act. Determination no: 2 held TICA liable for failure to have appropriate agreements with its members to ensure quality of data supplied by them and failure to inform members that they were listed on the database.(Media release, 2004). According to the Privacy Act, an organization must collect personal information only by lawful means and take steps to make the individual aware that information about him is being collected [Principle 1: ss 1.2 and 1.3], which was violated under Determination 2. Further, the law also states that the information should not be disclosed without the individual’s permission [Principle 2, ss1.2(b)]. Lastly, under Determination 2, the data contained in the database was not accurate or updated regularly, which is in violation of Principle 3 of the Privacy Act, which states that the organization must take steps to ensure that data is accurate and up to date (Privacy Amendment 2002). Ans 3 (b) Legislation introduced by the Australian Parliament in 1999, includes “content codes” regulating Internet content (Guide 2005). Schedule 5 of the BSA restricts access to offensive sites (Bills Digest 2002-3). An X website could incur criminal liabilities under the laws of the Commonwealth, including the charge of child exploitation. Excessively graphic or violent material cannot be hosted on ISP servers in Australia and will be prohibited. In United States, in the case of Zeran v AOL, the service provider was absolved of responsibility for defamatory material posted by a third party. But in the case of Grace v EBay, the defendant’s reliance on the provisions of the California Decency Act which precludes legal action against an ISP provider who is not the content provider, was rejected by the Court. While it may be possible to host an X-rated site in other countries, Australian content regulations are strict, as demonstrated in the case of EFA v Australian Broadcasting Authority. Ans 4 (a) Downstream liability imputes negligence to the storage provider and makes him/her liable for losses suffered by others after electronic attacks on the site. ISP and net storage providers must support their claim of encrypted data, through system protection from hackers. Compromising of data security makes manufacturers liable for claims from customers, as was the case with Guess Jeans and Ziff Davis. Similarly, Jiffy Lube was also held liable for long distance charges run up by hackers. (AT&T v. Jiffy Lube International). Therefore, a storage provider must be prepared to accept responsibility for claims made by customers on losses suffered due to hackers. Security design and implementation must be rigidly enforced and periodically reviewed. All data needs to be backed up in off line storage devices periodically, so that the volume of lost data is lowered. Security management and risk assessment on a continuous basis will help in maintaining site safety. 4 (b) The Electronic Transactions Act of 1999 (Commonwealth) introduces a national regulatory system for e-commerce activity. Measures are being taken under the UNCITRAL to impute legal validity to digital signatures (page 69 of RTF file). The ABM sets out standards for consumer protection (www.consumersonline.gov.au). Section 5(1) of the Sale of Goods Act 1923 (NSW) allows a broad definition for “goods” while the application of Section 4 of the Trade Practices Act 1974 (Cth) in the case of Toby Constructions v Computa Bar, found software also to be goods, thereby entitling them to contractual protection afforded to sale of material goods. Recent online fraudulent transactions were charged under the Crimes Act of 1958, for example the cases of DDP v Murdoch, Kennison v Dare and Gilmour v DDP. R v Kennings established that criminal intent was sufficient grounds for prosecution under the Cybercrime Act of 2001. Ans 5: Jed would be found liable for infringement of BTD’s copyright in the sound recordings. Section 101(1) of the Copyright Act will hold Jed responsible for authorizing distribution of copyrighted material for which he is not the owner. Jed has demonstrated indifference to BTD’s notices and thereby knowingly infringed copyrighted material (Universal Music & Ors v Cooper & Ors [2005] FCA 972, pp 87-88). In the case of MGM v Grokster, decentralized file sharing made it difficult to effectively establish liability. But new provisions in the Australian Copyright Act (page 98 of RTF file – section 116 AH) require a distributor to disable access to copyrighted material, when he receives notice that it is an infringing copy. The user pays network operated by BTD makes use of TPM devices to restrict access of the copyrighted material to those who pay for it. Section 10(1) of the Copyright Act defines a TPM as a, electronic process designed to prevent or inhibit infringement of copyrighted material. Circumventing such measures would be deemed to be infringement of copyright. (Kabukishi Sony v Stevens). In the case of Australian Video Retailers v Warner Bros, an infringing reproduction was defined as one which would allow such temporary reduction to be captured and further reproduced. In this case, the downloaded music is being repeatedly reproduced, albeit through a distributed forum, hence there is infringement. Therefore, Jed knowingly contributed to distribution of infringing copies. Jed will have to pay remedial damages as spelt out under Section 116 of the Australian Copyright Act. The fact that he does not receive any financial benefit from the distribution of the infringing copies may mitigate the compensation that he will have to pay to BTD in terms of profits that he has accumulated through the use of infringing material. However, he will be liable for damages caused to BTD as a result of lost revenues due to users accessing Jed’s site rather than the pay to use Assign-All website that BTD sponsors. Damages may even be non monetary for the actual infringement itself, but Jed will definitely have to terminate his own site because it provides the links for users to access, reproduce and distribute material that is deemed to be an infringing copy. Nigel could be liable under the provisions of the Digital Millennium Copyright Act, which has become operational in Australia subsequent to the Free trade agreement. While there have been some cases in the United States where the ISP has been absolved of the responsibility for the content that is transmitted through his service, (See Zeron v AOL), the stricter ISP provisions that were laid out in the Recording Industry v Verizon case imputes greater responsibility upon ISPs. Nigel has also received letters from BTD and therefore has been made aware that infringing material is being distributed through his service. The new amendments to the Australian Copyright Act in line with Free Trade agreements will render additional liability to ISPs and distributors of infringing material. Part 11 of the U.S. Free Trade Implementation Act of 2004 amends the Australian Copyright Act to include ISP liability. The letters from BTD serve as take down notices which require Nigel to accept subpoenas to identify his subscribers (Recording Industry v Verizon) and ISP’s are bound to act expeditiously upon receipt of a take down notice.( Per Sections 512(b)(2)(E), (c)(1)(C) and (d)(3) of the DCMA). But Nigel has received the take down notice and has not taken any steps to either close down his service or provide any listing of his users. Therefore, it is possible that he could also be liable to pay damages to BTD, although these may not be as high as Jed’s. (d) Decentralized file sharing makes it difficult to pinpoint the source of infringement of copyright. Copyright protection that is too rigid would undermine the right to fair dealing that needs to exist for legitimate users of copyrighted material. Since it is difficult to clearly delineate fair use vis a vis pirated use of copyrighted material in an online environment where duplication cannot be easily tracked, it is a better strategic move to implement online controls at the site of access of the material. The use of TPM’s by private companies enables tailoring of the access codes according to their requirements. Simple licenses such as those issued by Creative Commons will also help to implement control by the copyright owner to the access to his work and determine the conditions upon which such access rights will be granted. There is no common law that can be applicable in all situations, hence a flexible approach offered through alternative methods will be preferable to rigorous legislation on copyright, which is likely to interfere with free speech. References: * Australian Video Retailers Association v Warner Home Video Pty Ltd (2001) 52 IPR 242 at 262-3 * AT&T v. Jiffy Lube International, 4 CCH Computer Cases para. 46,845 (U.S. Dist. Ct. Md. 1993 * .au Dispute Resolution Policy. [Online] Available at: http://www.auda.org.au/policies/auda-2002-22/ * Diamond v Chakrabarthy, 447 U.S. 303, 206 USPQ 193 (1980) * Electronic Frontiers Australia Inc and Australian Broadcasting Authority [2002], AATA 449 (12 June 2002). * Gibson, William. (1984). Neuromancer. Ace Science Fiction * Greenleaf, Graham. (1998). “An end note on regulating Cyber space: Architecture vs. Law?” [Online] Available at: http://www.austlii.edu.au/au/journals/UNSWLJ/1998/52.html * Gottschalk, Commissioner of Patents v Benson, 409 U.S. 63, 175 USPQ 673 (1972) * Roger M. Grace v. eBay Inc. 16 Cal. Reporter. 3d 192 (Cal. App. 2004) * Guide for Internet users (2005). Internet Industry Association. [Online] Available at: http://www.iia.net.au/guideuser.html * In Re Alapatt. 33 F 3d 1526, 31 USPQ2d 1545 (1994) * International Shoe v. Washington, 326 U.S., at 316, 66 S.Ct. at 158 (1945). * Liangsiriprasert v United States (1991) 1 AC 225 * Holland, K. (1998) “Recent International legal developments in Encryption” IIR Conferences 1998. [Online] Available at: http://www2.austlii.edu/itlaw/articles/Holland.html. * Kabushiki Kaisha Sony Computer Entertainment v Stevens [2003] FCAFC 157 * Lessig, Lawrence. (1997). “Law of the Horse – what Cyber law might teach” [Online] Available at: http://www.lessig.org/content/articles/works/finalhls.pdf * Media release (2004). Tenancy database operator breaches the Privacy Act. [Online] Available at: http://www.privacy.gov.au/news/media/04_07.html * Macquarie Bank Limited & Anor v Berg [1999] NSWSC 526 * MGM v Grokster243 F. Supp. 2d 1073, 2003 U.S. Dist. LEXIS 800 (C.D. Cal., 2003) (decided April 25, 2003 * Privacy Amendment (Private Sector) Act 2000. Extracts available online at: http://www.privacy.gov.au/publications/npps01.html * Recording Industry Association of America v Verizon (Unreported. January 21, 2003. Judge Bates, District of Columbia) * Uniform Interstate and International Procedure Act, 13 ULA 355 (1986 ed) * The case of Yahoo, USA. [Online] Available at: http://www.cdt.org/jurisdiction/ * 61 U.S. Federal Regulations on Patents * Toby Constructions Products Pty Ltd v Computa Bar (Sales) Pty Ltd [1983] 2 NSWLR 48, * Zeran Kenneth M v. America Online, Inc.; US District Court, ED Virginia, 958 F.Supp. (1997); US Court of Appeals, 4th Circuit, CA-96-1564-A http://www.consumersonline.gov.au/content/ShoppingOnline/BestPractice.asp Read More