Information Law Issues - Case Study Example

Ron Steele The Internet, Law, and Freedom of Information: An Analysis XYZ 25 September The internet and information revolutionthe world has experienced in the last two decades has had a phenomenal impact on our society, yet poses questions on how information should be handled from legal aspects. This paper will examine the concept of law over information in cyberspace. I examine the concept that it is neither desirable nor practical to have law about information. To analyze the above statement, I will first examine how any general attempts at internet regulation currently stand. Next, I will examine how law, information, and cyberspace interact with one example of copyright law. Finally, I will see how new emerging concepts in regards ‘net neutrality’ proposals of various countries might affect different countries in the future. In the recent past, the internet was a new concept and possibilities were seemingly limitless. Today, there are different issues needing resolved as a recent article in The Economist pointed out. One of these issues is blocking of information for political and social reasons. In April of 2010, Google published statistics from government agencies requesting them to block material. Brazil led with 300 such requests with Germany in second with almost 200 requests. Australia only had a handful of requests and in next to last place in the quantity of requests made. The data was from 7/01/09-12/31/09 (A virtual counter revolution, 2010). The article next describes three separate forces converging on cyberspace: (1) governments of individual countries attempting various kinds of limitations; (2) large IT organizations structuring their own digital regions where they set their own company regulations; and (3) networks having a desire to treat various types of internet traffic differently, which would create ‘fast lanes’ versus ‘slow lanes’ on the internet (A virtual counter-revolution, 2010). One example of the issue of governments trying to impose various kinds of limitations is discussed by Karina Travaglione (2009) where ‘clean feed’ internet censorship in Australia is examined. The author notes where the Australian government recently wanted to go forward with ‘clean feed’ internet filtering of internet service providers. The major goal was to protect minors from ‘harmful’ or inappropriate online material. The developments of the Australian government in this regard are potentially troublesome as Travaglione (2009) alludes to, since no other Western democracy has taken such steps before. The government wants to block obvious problem areas such as child pornography, but also has other items it suggested blocking including online gambling sites, pro-euthanasia sites, and even sites that allow download of gaming videos which the government would deem inappropriate for minors (Travaglione, 2009). With attempts at internet regulation in Australia, Fitzgerald (2008) brings out an example of what could be a perceived overreaction that led to new legal provisions in 2007. The event was a ‘reality’ television show along with the corresponding website associated with the show. One episode showed two participants of the TV program engaged in risqué and potentially offensive behavior. The related website showed the more risqué version that the TV program opted not to show. The author noted that the web version was still not nearly as offensive as average graphic online sexual behavior. Yet, the media got involved, and eventually politicians promised to enact tougher laws where nothing of that type of behavior could be seen by minors. Ironically, the website stream was shown late at night, and no proof of a minor viewing it came forth. Still, media involvement combined with a pending election made for new legislation (Fitzgerald, 2008). Online freedom of information is influenced by each country, since no international standards are in place. A study by the U.S. Department of State (2010) said that while most people support the concept of freedom of information on the internet, freedom has different meanings depending on one’s country. For example, Americans are primarily concerned with unchecked government power. Various European countries, on the other hand, are often leery of how information with personal data is used. Google’s ‘street view’ controversy is one example of this occurring (US Department of State, 2010). One Australian court case example regarding information distribution via the internet was with MacQuaire Bank Limited & Anor v Berg (Supreme Court of New South Wales, 1999). In this case, the plaintiffs sought to restrain the defendant Berg from publishing defaming information about them on the internet. Berg was a former employee of the Bank, and had improper information regarding the plaintiff on at least two websites. The Court stated that information published on the internet can be distributed worldwide. Since internet laws vary worldwide, the Court stated that the laws of NSW and the rest of the world would have to be in agreement. Since that was not the case, no enforceable ruling could be made (Supreme Court of New South Wales, 1999). A second court case gained international recognition at the time. The French Union of Jewish Students v Yahoo! Inc. was outlined by Akdeniz (2001). In the year 2000, a group of students and protestors brought a successful lawsuit against American based Yahoo for hosting a site where various Nazi related items could be sold. The French Court said that even displaying Nazi items is a violation of French Penal Code and considered a public threat. Yahoo claimed that France had no jurisdiction in the case since Yahoo was an American based company. Yahoo further said the ruling would put into jeopardy a fundamental right and reason for having the internet. In the end, Yahoo France did not appeal the decision and went with the French Court’s decision. Another area that I examine is with regards copyright laws as it pertains to the internet. As Yu (2010) states, copyrights protect the efforts of writers, musicians, and various other artists. Law is a freedom in this regard instead of a restriction according to Yu (2010). Artists of any kind can be assured that they will be rewarded fairly for their investments of time, energy, and resources with the works they create (Yu, 2010). Users of the internet might find it difficult to know if they are intruding upon the rights of an artist, but Yu (2010) states that copyright laws try to take this into consideration. Distinctions are made between unprotectable ideas that are general knowledge expressions versus protectable ideas, such as a written essay by a researcher. Ideas as the ‘fair use’ doctrine help alleviate many concerns. These is where people can quote copyrighted material, write film or book reviews, or make use of parody without fear of improper intrusion (Yu, 2010). An examination of court cases with regards to copyright law in Australia help to illustrate principles in this area. The first case is summarized by Oratz (2010) with Viacom International, Inc. v. YouTube, Inc, 2010 WL 2542404. This is a case where YouTube was accused of copyright infringement by users. Most of the controversy was with the Court deciding if a general awareness of infringement on the part of YouTube was enough to hold the company liable, even if YouTube promptly removed content whenever it received a ‘take down notice’ due to suspected copyright violations. YouTube claimed protection under safe harbor provisions of the Digital Millennium Copyright Act (DMCA) and the Court agreed with YouTube. The revelent part of the statue is that DMCA states that an online provider is not liable for copyright violations for storing content at the request of a user assuming certain conditions are fulfilled. The major condition that YouTube did fulfill was acting when it received a ‘take down notice’. This is a lower court decision that is expected to be appealed (Oratz, 2010). A second copyright case was in Federal Court of Australia (2005) with Universal Music Australia Pty Ltd. v Sharman License Holdings Ltd [2005] FCA 1242. This case was in regards an internet peer-to-peer file sharing system controlled by Sharman Holdings. There were 30 individuals from Universal Music that claimed the system violated their artistic copyright protection. It was clear to the Court that a large proportion of the shared files were subject to copyright. The plaintiffs’ stated copyright infringement occurred under the Trade Practices Act along with conspiracy. The Court rejected those claims. However, the Court did address the copyright infringement principle. The judge summarized that the plaintiffs overstated their case in direct copyright infringement. The issue left is whether the defendants authorized issues to infringe on the copyrights. The Court stated that Section 101 of the Australian Copyright Act does indicate that improper authorization of a third party would be infringement in Australia. The judge did grant favor for a majority of the plaintiffs in the case since no measures were used to limit file sharing such as keyword filtering or other means. The judge also stated that despite being aware of this practice, the defendants encouraged it through advertising for profit maximization instead of using any type of reasonable means to address the known issue. (Federal Court of Australia, 2005). A third court case was heard in the Federal Court of Australia (2005) with Universal Music Australia Pty Ltd v Cooper [2005] FCA 972. This case involved 31 plaintiffs of various Universal Music artists who had copyright violation complaints, along with record company owners with large catalogs of music who had complaints of copyright infringement. In addition to the above, the plaintiffs are using s52 of the Trade Practices Act 1974 (Cth); s38 of the Queensland Fair Trading Act of 1989; and s42 of the Fair Trading Act of 1987 on the basis of deceptive misrepresentation of the legality of downloading music from the internet. Damages were sought under s 115(2), 115(4), and 116(1) of the Copyright Act 1968(Cth). Also, s82 of the Trade Practices Act 1974(Cth); s99 of the Queensland Fair Trading Act 1989; and s68 of the Fair Trading Act 1987(NSW) for delivering and transferring infringed copies. In this case, the defendant’s website provided embedded links to other remote websites. In addition, internet users could add their own links to the defendant’s website. The website was structured and had search engines for locating music from the internet, along with charts of the most popular songs for internet users to take advantage of in quickly locating popular music. The defendant was provided with free website hosting in return for advertising the IPS’s logo. A major question was whether the defendant infringed on the rights of the plaintiff. Once a user clicked on a hyperlink, they could download music. The website was very successful in attracting a large number of visitors, and the defendant did not have to pay for fees for the site simply by displaying the ISP’s logo The Court found the defendant Cooper was liable for breach of copyright. Finally, a new concept is emerging with the idea of ‘net neutrality’. The idea has promise, but is too early in development to know how extensively it could work globally. Mueller (2007) describes net neutrality as overcoming individual country’s laws. It addresses the idea of internet user’s access to information from the internet without interference from government or network providers (Mueller, 2007). One aspect of how net neutrality works in practice is described by Rundle & Conley (2007) as where no entity would have capability to discriminate in regards information. Each node of material is passed through the network without concern for whom sent the information or what the information pertains to (Rundle & Conley, 2007). Europe has a related ‘Internet Treaty’ proposal made recently which would attempt to protect the internet from political interference as Ballard (2010) describes. He states that the proposed treaty would ensure open standards and not discriminate with regards information. Any discrimination would be left to the internet user themselves. This is a current issue that the United Nations is addressing. (Ballard, 2010). Factors are already at work pressing European countries to look more at neutrality in regards the internet. One such item is mentioned by Hogendorn (2007) where European telecom firms have an interest in charging companies such as Google for content distribution. As we can see from the above discussions, the original question of whether or not law is desirable or practical over information in cyberspace is not a question that can easily answered. There are times where having law is a freedom for individuals, such as in the case of copyright law. The location of the internet service provider and the location of the individuals producing the information are still adherent to any government legislations or Court restrictions. The idea of having no restrictions over information may or may not ever be workable in practice due to various political and social settings that we all live in. We can see however a good example in net neutrality being proposed and this could lead to more global harmony with information freedoms, which would be desirable path. Bibliography “A virtual counter-revolution”. 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