Staying Out of Prison in the
Information Economy
Lecture Caveats
• I am not a lawyer and do not have any
formal legal training
• This lecture is made up of my observations
of the legal system to make you aware of
important issues concentrating on an
information technology workplace
• Cardinal Rule: Be aware of the law, but
always consult an attorney if/when you
become involved with it.
Law Caveats
• Some people read the text of the law and
think they know it. Things are never so
easy. If you have questions ask a lawyer.
• Others ignore the law relying on corporate
lawyers in case something goes wrong.
This is not a good idea. As in any other
system, catching problems in the design
phase is always better than in the debugging
phase.
Talk Overview
• Life for Lawyers Vs. Life for Engineers
• Patents, copyright, trademarks, trade secrets
reviewed
• Defamation
• ISP Liability
• Privacy
• Jurisdiction Issues
Life for Computer Professionals
• Binary
– Problem solutions either work or not.
Little room for gray areas.
• Physical and mathematical laws ultimate
authority when disputes arise
• Guiding Philosophy - “Tell me what you
need and I will create a system with
appropriate trade-offs at least cost to solve
your problem.”
Life for Lawyers
• Gray
– Effort and intent often matter as much as
results
• Supreme court ultimate authority when
disputes arise
• Guiding Philosophy - “Laws are passed
based on how society should run - even if
enforcement and legal interpretation issues
have yet to be nailed down.”
When Worlds Collide . . .
• Legal community always behind the technology
curve
• Lawyers and politicians typically have poor
technical backgrounds
• As a result, analogies often made between new
technological paradigms and old world systems some more easily defended than others.
• Different interpretations would result in different
laws
Patents
• Embodiment of a specific methodology
• Competing products must use different
method for achieving same task to avoid
payments
• Definite lifespan beyond which patent
information freely available for use by the
public
Copyright
• Specific work
• Automatically held when work is created,
but easier to defend if it is registered
• Definite lifetime beyond which the work is
freely available to the public
Trademark
• Specific name or phrase
• Generic terms cannot be trademarked
• Trademarks can be lost if they are not
defended
– Lost trademarks: aspirin, kleenex
– Held Trademarks: Coke, Pepsi
Trade Secrets
• Does not expire - as long as it is kept secret
• Competitors may not use secrets obtained
through extraordinary means
• Example: Walled chemical plant layout
learned through helicopter use
Defamation
• Publishing damaging statements you cannot
prove about others
• The publisher and author are both liable
• Slander is a less serious, but similar, crime
where damaging statements that cannot be
proven are made in a public arena
Bally Total Fitness Vs. Faber
• A “Bally Sucks” web site was created by
Faber complaining about Bally fitness
centers
• The trademarked Bally seal was placed on
the site overlaid with the words “Sucks”
• Bally sued Faber making claims of
trademark infringement, dilution, and unfair
competition.
Bally Case Decision
• No trademark infringement - little possibility of
confusion
• No dilution - the defendant did not sell a
competing product and did not convey confusion
about the author’s identity
• No dilution (lessening ability of the plaintiff’s
mark to identify its goods and services) since
defendant was not marketing a competing product
• Incidentally - no slander, negative opinions
protected under the first amendment
ISP Liability
• What is an Internet Service Provider Like?
– Phone Company: Route information
flows between individuals
– Newspaper: Package content for
distribution in a public forum
• Answer determines ISP’s legal liability
• The rules have been in a constant state of
flux in recent years
Ancient History (~Decade Ago)
• Defamatory posting on Prodigy (Stratton Oakmont Vs.
Prodigy Services 1995)
– Prodigy a large ISP
– Claimed to be “family friendly”. Prodigy advertised
that internal newsgroups monitored for
bad/inappropriate language
– Role of a publisher - hence, Prodigy like a newspaper
– CompuServe did not monitor users activity - like a
telephone company (Cubby Inc. Vs. CompuServe Inc.
in 1991)
Modern Era
Communications Decency Act
• ISP may monitor user activity (according to
policy)
• If statement to the effect that ISP does not
take responsibility for user traffic in place
then no ISP liability, BUT
– Area for complaints must be available
– Complaint response must happen in a
timely fashion
DMCA
• Digital Millennium Copyright Act
– If a copyright infringement is claimed a web
site must be taken down (however tenuous the
claim may be)
– Web site can only be reinstated after an appeals
process.
Near Future? . . .
• European Computer Crime Treaty may be
created by the end of this year
• ISP’s may be required to monitor user
traffic with a 40 day data-log.
• ISP’s not explicitly exempt from liability
• Hacker/Security Tools Illegal
• Citizens must provide passwords for data
seized by police
Privacy in the Workplace
• Test for employers/employees - “Do you
have a reasonable expectation of privacy?”
• A case can be made that private e-mail on
business machines still private, but this is
not the law
• Work-related material on business machines
is definitely not private
Privacy in E-mail
• Legally, e-mail is like a postal letter
– Expectation of privacy in transit
– Mail loses its special protected status once it
leaves the letter carrier's grasp
• For e-mail,
– Expectation of privacy while signal travels over
Internet
– E-mail loses its protected status at the mail
server whether you have read it or not
Spam and Address Spoofing
• Matthew Seidl v. Greentree Mortgage Co. (1998)
• Greentree hired third party to send mass e-mail to
potential customers (spam)
• Return address spoofed to read
nobody@localhost.com (an actual address)
• Over 7,000 complaints sent to nobody resulting in
denial of service for 3 days
• Libel case dismissed since third party was a
contractor. Likely that third party would, in fact,
be vulnerable to a lawsuit.
Business E-mail
• Electronic Communications Privacy Act
(1986) says all business communication
belongs to that business
• Deleting e-mail can be ruled spoliation
(intentionally destroying company records)
• Archive worthless if it cannot be indexed
effectively (in effect, saving everything can
be equivalent to saving nothing)
What about Privacy at Home?
• A lot of public information is considered
private.
• An increasing amount of public information
available on the Internet
–
–
–
–
Reverse phone lookups
Campaign Contributions
Housing prices
(Thwarted) Driver’s license information and
photographs
Data Collection
• Data collection has few boundaries in U.S.
• Check privacy policy (can change!!)
• EU Safe Harbor agreement may change
things in the future (TRUSTe web site
privacy seal program)
Jurisdiction
• “The Internet has no boundaries”
• Is that really true?
• If you break a law in Finland, but you were
on the Internet in the United States, what
happens to you?
• What if you are in California and you break
a law in Minnesota?
E-Commerce Big Questions
• Did you sell an illegal item to a resident of
community X?
• Did you try to stop the flow of illegal sales
into X?
• An easy example of where this might come
up is found in the on-line pornography
boom.
Obscene or Offensive?
• Indecent speech and offensive speech
protected under the 1st Amendment
• Obscene speech is not
• But what is obscene speech?
Miller Test for Obscenity
(1) Whether “the average person applying
contemporary community standards”, would find
that the work, taken as a whole, appeals primarily
to prurient interest.
(2) Whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically
defined by applicable state law.
(3) Whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific
value.
Federal Court System
• 94 US District Courts (89 in the 50 states)
• 13 Judicial Circuits, each with a court of
appeals
• Supreme Court ultimate appellate court
• Jurisdiction can be a determining factor in
case outcomes
US V. Thomas (1994)
• Mr. And Mrs. Thomas ran a pornographic
BBS in California
• State officer paid a membership fee and
downloaded pornography in Tennessee
• Couple tried in Federal court in Tennessee
and lost their case
International Jurisdiction
• Extradition over civil suits unlikely
• Big Question #1: Do you have assets in the
country in question?
• Big Question #2: Will you ever try to enter
country X?
Godfrey Vs. Dolenga
• Dolenga was a Cornell Biochemistry Master’s
student from British Columbia
• Godfrey, a nuclear physicist from London, made
anti-Canadian remarks in a newsgroup
• Dolenga responded by flaming Godfrey
• Godfrey notified Cornell of the offensive remarks,
but they were not removed (First Amendment)
• Godfrey filed defamation suits against Dolenga
and Cornell in Britain (one of at least seven such
cases)
Dolenga Did Not Defend Himself . . .
• Dolenga was found guilty by default in
English court
• BUT - Dolenga does not have assets in
England and it is unlikely that American
courts will enforce the British judgement.
Cornell Did Defend Itself
• Cornell has assets in England (the Cornell
abroad program)
• The suit was for roughly 80,000 pounds.
The University could have settled, but chose
to take the case to court
• The suit was brought to a successful
conclusion (for Cornell)
• Lessons to be taken away from this . . .
Conclusions . . .
• The law is constantly changing and never as
simple as it seems
• You should try to be familiar with the law to
protect yourself (corporate lawyers are like
a fire department, not like a seeing eye dog)
• Even so, you DO need the help of someone
with formal training when dealing with
legal issues