The Application of Common Law in Terms of Cyberspace - Case Study Example

The Implications of Common Law on Cyberspace Stare Decisis is the principle that indicates that precedent should be the primary source for adjudicating legal conflicts. Within the context of legal precedence, when legal conflicts arise, it is usually clear which party is in violation of the common law. While the use of precedent by the judiciary has been clear and concise, the advent of the internet has created a new frontier where the judiciary has had to make many cross applications of common law. There are a couple of terms that need to be defined. First, Cyberspace is the virtual world also known as the internet. Its a vaguely constructed community of websites that reside at various hosting locations and are accessed through remote computing sources. Secondly common law is pre-established law that is already being recognized, also know as precedent. The application of common law in terms of cyberspace occurred over the course of several important court decisions. This paper explores those cases and discusses the impact that common law has had on the development of regulations within cyberspace. In terms of spam and defamatory content, there have been several situations where companies have been held liable for the distribution of information determined to be slandering. Traditional intellectual property common laws do not deal effectively with digital information products. This is because the products are constantly advancing and finding new uses for the individuals. While intellectual property may ensure protection of some digital information products such as mp3’s and items that have explicit copyrights, there are some areas that could use development. Before we discuss what can be done to increase the protection of digital information and intellectual property, lets discuss what is being done in the status quo. In terms of Individual Protection, in internet protocol there are rights which are known as being unique to the owners of a small class of works, such as intellectual property rights in mask works also known as semi-conductor chips, ship hull designs, databases, or plant (Sterling, 1992). There are a couple of cases building the constitutional framework for specific rights of individuals. One of the more notable cases is the case of Feist Publications v. Rural Telephone that occurred in 1991. In this case, the Rural Telephone Service Company, Inc. was a telephone provider for areas in the north-western region of Kansas. The company was under a statutory obligation to compile a phone directory of all their customers free of charge as condition to their monopoly franchise. Moreover, Feist Publications, Inc. was a company that specialized in compiling telephone directories from larger geographic areas than Rural Telephone Services. They had licensed the directory of 11 other local directories with Rural Telephone Services being the only hold-out in the region. Feist went ahead and copied some 4000 entries from Rurals directory. In the process of doing so Rural, however, had strategically inserted a small number of phony entries to detect copying and caught Feist of doing exactly that (Sterling, 1992). Prior to this case, the subsistence of copyright in United States common law followed the sweat of the brow doctrine that enabled copyright protection for any person who invested significant amount of time and energy into their work. In this case, the court ruled that Rurals directory was merely an alphabetic compilation of all subscribers to its service, which it was required to compile under common law, and that no creative expression was involved. The fact that Rural Telephone Service spent ample time and money collecting the data was irrelevant to copyright common law, consequentially, the courts dismissed their claim. The court ruled in this manner because Sweat of the brow theory does not change the idea expression binary. This code is in an attempt to promote originality. Originality is based on selection, arrangement, coordination, and the manner of display (Roudavski, 2011). This case is critical to protecting the actions by individuals used to compile data. It actually sets a precedent that rewards individuals effort, which is key to the protection of individual intellectual property. But while this case sets a bright-line for what type of work can be considered intellectual property, it needs some legal codification and further defining in order to be effective. In fact, individuals still are capable of not having their works held up in the court room because of the lack of clarity that surrounds the issue. In the 1918 case of INS v. AP the acquisition by labor and investment was fought out between AP which was a pro war group that got the info from the armed forces and INS, William Randolph Hearst who couldn’t get news were the defendants. They are both involved direct competition in the news collection business. The companies both collected news and then distributed them to newspapers around the county and some international papers. The defendants were involved in collecting news posted by the plaintiffs on bulletin boards and newspapers and then reproducing these news as their own work. The courts held that companies may not appropriate news from another to use as their own because this is unfair competition in business. In terms of the labor involved for the AP, INS is stealing it and if it were allowed to continue, it would render publications profitless. In this context, the court was presented with 3 primary questions (Granville, 2003). 1. Is there property in news? The answer here is that the news itself can not be considered property, rather, the content that is published within the news sources is. This has created a precedent that individuals content that is developed is a source of copy right which means that individuals own access to their own particular interpretations of events. 2. If there is, does this property right survive after its publication? As indicated earlier, the right to ones content remains constant and unchanged, this is the internal link to individual protection of copyright. If a timeline were placed on information that is posted on the web, than that would decrease the individuals access to their work. Legally speaking, it is more advantageous for individuals to own their work indefinitely, to ensure originality in future works. 3. Is taking the bulletins/published material and appropriating it unfair competition in trade? The defendant is a competitor of the plaintiffs and it is using the plaintiff’s news stories for its own profit.  D gets the story w/o the labor to produce stories.  Such practice is unfair and it also results in losses to the plaintiffs.  The gathering of news requires money, skill and effort… if you don’t recognize this and protect us, no one will want to get news There is value to being first on the newsstand with a story The defendants are not allowed to “steal” plaintiff’s stories for a certain amount of time. This time should be set so that the defendant will not be able to enjoy the benefits of plaintiff’s labor. In terms of the development of rights in the digital age, this merely as made the distribution of news stories lets concentrated alongside of national sources as well as less immediate. While it becomes increasing important for rights in the information age to encourage the effective flow of information, at times it becomes important to ensure that information is protected when work is involved in the collection and gathering of data to deliver a specific story. The precedent that this sets for society at large is that individuals are due the reward of their actions (Roudavski, 2011). Another important case is the National Basketball Association v. Motorola. This case involved the legitimacy of Pager scores of the NBA The court held that Copyright common law preempts the misappropriation claim. It indicated that Athletic competitions are not copyrightable (Slater, 2002).  While broadcasts are copyrightable, the facts obtained from them were not. This case is necessary to discuss because it is not a situation where “Hot News is an issue because such issues requires situations where individuals gathers information at a cost, and the information has to be time sensitive. While in the NBA case it was not time sensitive and the NBA lost no economic ability from the distribution of information by motorola. This has substantially changed the way that entertainment and technology were able to interact. This is specifically becoming more important as data becomes more portable and transfers at some of the fastest rates ever. Cyber law as an independent field of legal study seems to be misleading due to the fact that the common laws governing activity over the internet stem from situational court precedents and common laws developed to address specific issues (Granville, 2003). In terms of digital information and cyber computing the common laws regulating are vague because the entire network itself is based on differentiated business concepts. This means that individuals who create new sites are in essence creating a new sector of the cyber community. Though sites may appear to be competing for the same market of individuals, the ability to differentiate brands through user capabilities is more distinct online as opposed to offline. This essentially means that the body of common law would have to be constantly developing in order to continuously regulate the new developments within the cyber community. Additionally, the international community fails to recognise a universal code of common laws that regulate the activities within the cyberspace. This has created a unique situation whereby individuals who engage in cyber activity become subject to the totality of common laws governing the use of cyberspace (Slater, 2002). Key examples indicated earlier in this paper prove that individuals are able to access judicial recourse for punitive damages assessed through the internet community (Morningstar, 2003). Copyright common law is an additional component of international common law that becomes increasingly difficult with the internet community. This is because the traditional means of infringing upon copyrights have been replaced with a new system whereby individual are transferring information. This requires information systems to be inspected in controlled by electronic regulatory agencies that have the capacity to recognise illicit duplications of data. In order for the legal body to establish precedent over such activity, its seems as if much of the legislation has been headed down from the judiciary. It becomes increasingly important that judiciaries practice judicial restraint as opposed to becoming activist courts to ensure that there is a clear body of common laws protecting individuals from the illegal duplication of their owned material (Ippolito, 1998). Another key court case comes from the case of Playboy Enterprises, Inc. v. Chuckleberry Publishing, Inc. In this case it involved a contempt proceeding against Chickleberry for violating a 1981 judgment enjoining it from either publishing or distributing its Playmen Magazine in the United States. While the owners a Playmen operated under the assumption that the U.S. was its unique place outside of traditional state boundaries, the problem with the case was the companies proactive marketing campaign to individuals within the U.S. boarder (Granville, 2003). The court found that defendant violated the injunction because defendant actively solicited United States customers to its Internet site, and in doing so has distributed its product within the United States. While the company cannot be prohibited from operating its website merely because the site is accessible from within one country in which its product is banned. Such a holding would have detrimental implications for companies who use this global service. However, this special protection does not extend to ignoring court orders and injunctions and should not be used as a means of circumventing such orders. If it did, injunctions would cease to have meaning and intellectual property would no longer be adequately protected. A policy that must be considered as contributing to the growing body of cyber law that has been crucial to the development of protection of individual rights is The EU Database Directive. This is an initiative by the EU to take the necessary steps to protect databases. Databases get legal protections in segments which are referred to as terms. The term lasts 15 years from the first of January of the subsequent year following the date of the database’s completion. It can get an addition 15 years for subsequent deletions and addition which means that the database has the potential to gain lifelong protection. The EU has realized that databases have become an emerging trend in the storing of data and that individuals constantly demand access to such databases. It is increasingly important in the digital age for individuals to gain protections within this systems. This initiative helps prove that individuals are gaining greater protections in terms of the digital age, but they are still being limited to jurisdictions. The US does not have the same protections as the EU does when it comes to databases which means that individuals are less likely to engage in such activities without seeking protections (Zhai, 1998). This consequentially increases the entry barrier to engaging in the same activities. Another consequence is that a lot of people are unsure if database really fits in Copyright protection. For example, In 1996 the WIPO copyright treaties had Anti-circumvention discussed in both treaties while databases only appeared up in a 3rd treaty. Congress to this date, has introduced 5 separate bills for the governance of databases but they lack any traction within the house or senate. There is a need to protect the property rights of individuals that are possessed in databases. Regardless of the individuals ability to seek recourse on other grounds, it is essential that congress creates common laws that immediately address the property rights of individuals immediately. The cyber community is constantly developing and continues to grow at rates far beyond the speed that is expected. The common laws that are being developed are doing so in response to previous developments and not in anticipation of future ones. This means that the internet has legal wiggle room but becomes increasingly risky for individuals wishing to innovate within the industry. Content, media, and information all have protection in jurisdictions outside of the Internet. It becomes increasingly important for common laws to be developed to define the limitation of digital internet rights. Common law does create an environment where most legal matters can be predicted, though not all scenarios can be accounted for. Common law at its core should be able to solve for rights disputes within these context. In the years to come there should be a clear foundational set of common laws that make cyber space increasingly predictable, but in the status quo the internet still has many legal disputes to overcome. Reference Granville, Johanna HYPERLINK "http://www.scribd.com/doc/14361572/Dotcon-Dangers-of-Cybercrime-by-Johanna-Granville" “Dot.Con: The Dangers of Cyber Crime and a Call for Proactive Solutions,” Australian Journal of Politics and History, vol. 49, no. 1. (Winter 2003), pp. 102-109. Ippolito, Jon (December 1998 – January 1999). "Cross Talk: Is Cyberspace Really a Space?". Artbyte: 12–24. Morningstar, Chip and F. Randall Farmer. The Lessons of Lucasfilms Habitat. The New Media Reader. Ed. Wardrip-Fruin and Nick Montfort: The MIT Press, 2003. 664-667. Print Roudavski, Stanislav; Parton, Sonya (2011). HYPERLINK "http://unimelb.academia.edu/StanislavRoudavski/Papers/575726/Architectural_Creativity_in_Commercialised_Cyberspace" "Architectural Creativity in Commercialised Cyberspace". 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