What’s
jurisdiction actually mean? What are
the real problems?
1.
Internet
developed by engineers with characteristics it didn’t nec need to have.
a. No geography – even if the
domain name would suggest it was attached to a certain country
b. Portable Addresses
2.
Net
is no longer a “shared hallucination” – it has enough popularity to attract the
attention of lawmakers, etc
3.
Johnson
& Post argument – govt shouldn’t intrude in these governments which are
governing themselves.
a. Example of cyber anarchist
& libertarians
b. J&P solutions deal only
with problems that arise in the course of consensual activities between people
interacting online. It doesn’t deal
with problems like gambling where the state asserts an interest in what parties
do online
c. You see all this mirrored in
debate on Internet sales tax. Way
states have tried to solve jurisdiction issues is to say that where a consumer
doesn’t owe a sales tax you owe a “use tax”
4.
if
state wants to govern behavior that they have some pretext to govern (due to
harm which comes into the state from the activity)
What
we mean when talk about jurisdiction:
1.
what
are proper boundaries of a legal sovereigns reach ()?
a. Procedural issues If look at
early Internet syllabi dealt with a lot of these issues (e.g. Blue Note LA vs.
Blue Note NY)
b. Substantive Limits – when’s
it fair for a state to say this is the way the world should be because it’s
hurting our citizens but other nearby states want the exact opposite. (e.g. Yahoo case)
i.
US
has an expansive view of its jurisdiction.
ii.
It
can be really important when thinking about setting up a website & client
asks who’s rules apply.
iii.
“Rule:”
never upset a G8 nation (violated in the Yahoo case)
2.
J&P
were calling for a separate set of rules for cyberspace.
a. Sort of have it in UDRP
b. If look at legal principles
of UDRP – the standards are hollow – basically can petitioner advance some
right & did the respondent register the name in bad faith.
c. Would J&P be happy?
i.
Yes: This is best example of sui generis scheme
for determining rights.
ii.
No: they were really calling for anarchy – sets
of rules consensually based
d. Conflict of laws vanish
e. UDRP works so long as there
are enough contracts in place
f.
UDRP
works in part because the things at issue are cyber things – the harm &
damages aren’t in the real world the way they are with harmful speech, etc.
Case
Study 1: I Crave TV
Facts: US © law vs. Canadian © law.
1.
It’s
a substantive conflict of laws.
a. Canada permits
re-broadcasting cable signals but US law didn’t
b. US law – if you’re a cable
company & want to retransmit you must get the permission first. If cable people didn’t want to carry the
signals they can make you do it
2.
I
Crave was based in PA but tried to
place their receiver just over the border so Canadians could watch.
3.
Court
wanted to know what steps the company had taken to make sure that only
Canadians could watch because if you couldn’t distinguish then its illegal.
4.
Jurisdiction
is figuring out a substantive boundary & this was the court’s answer. It might have been harder if everything
ICrave was doing was in Canada.
5.
Now
it may not even be legal in Canada to rebroadcast without permission from a
special panel
6.
What
can ICrave do?
a. Go to Sealand – will Sealand
help? Need to know
i.
Would
Sealand allow it to be on their servers
ii.
Can
you get the satellite transmission on Sealand?
iii.
Is
it legal under Sealand laws? you can’t
use it
1. as a base for attacking
other systems
2. for child porn
3. for Spam
iv.
What
if the NFL starts going after the individual viewers?
v.
Keep
in mind its really expensive to get space at Sealand & documents are never
really beyond the jurisdiction of the court
vi.
Now
there are cases in court trying to establish the status of Sealand
vii.
Sealand
may not be doing that well given all its limitations
7.
Should
result in Yahoo case be any different from ICrave TV?
a. France is basically saying
the same thing US said to ICrave – stop or you’ll pay.
b. Difference is that Yahoo is
a CA company so went to the court to try & block France from collecting
their judgment through CA courts
c. Strange case because default
rule allows for enforceability in different countries.
d. Dilemma: if we impose our rule then the convoy will
only move as fast as the slowest ship BUT we’re sovereign & we get to
decide what happens to our citizens
Summary:
Practical
problems of jurisdiction: it gets dealt
with in treatises – they usually agree that in the consumer realm it’s the
destination that controls.
Substantive
limits: differing legal schemes. 2 ways to deal with it –
·
unify
under a sui generis scheme (UDRP & Johnson & Post) but JZ doesn’t think
this is the wave of the future.
·
“start
zoning or stop complaining” & location tracking is probably where its
headed.
How
can you assert the power once you have it?
·
If
you have a reciprocity scheme you can start putting it into play
·
Can
look to cyber remedies (UDRP)
We’ve
focused on content providers but you can also look to ISPs (PA has now done
this for child porn) & individuals.
Look to other pressure points for taming anarchy
1.
Sherman
Anti-Trust Act
a. Section 1: price fixing is
bad.
b. Section 2: no monopolization
of a trade. Courts have interpreted
this as …
i.
monopoly
(a very large market share of a defined market) alone is not illegal
ii.
High
market share coupled with not much access from competitors.
iii.
You’re
under special scrutiny as a monopolist – you’re constrained in ways that
non-monopolists aren’t.
1. Predatory pricing
2. Tying products
3. Maintenance (bullying)
2.
Monopoly
& MS
a. MS has a monopoly on OS
b. They tried to prevent other
OS from getting a grip on the market (DOS was tossed) to encourage people to
make transition they placed both DOS & MS on the computers.
c. DRDOS was competing DOS but
MS got them out. MS would only sell
computer manufacturers the same # of licenses as computers manufactured. IBM couldn’t just get DOS for 20% of their
machines. This was the 1st
case btwn DOJ & MS but was settled in a consent decree
d. Consent Decree à 1997/98 DOJ said MS had breached it &
should be held in contempt à 1999/00 was new antitrust
case
3.
Consent
Decree
a. MS cant force someone to
take DOS if they didn’t want to. Section 4E of Decree
i.
4E
had huge hole – don’t know if something is an integrated product which was
allowed or a separate product.
ii.
The
Tuney Act said the Judge has to approve the consent decree but he
wouldn’t. DC Circuit ends up granting
it
b. Consent Decree forgotten
about until the contempt case saying MS had violated it with Internet
Explorer. Requiring a license of IE
with Windows was a violation. This was
a huge problem for Netscape
c. Need to consider if IE is
integrated or a separate product à Jackson appointing a
special master (Lessig) to figure out the case & an order that MS stop
licensing IE with Windows
d. MS letter to Compaq, etc
that they can still pre-install IE (and if you don’t then the computer will
basically be useless). Pisses off J.
Jackson who holds MS in contempt of the contempt case & fines them
$1MM/day. Ct. Appeals reviews &
tosses it all
4.
DOJ
brings a new Sherman Act case independent of the original consent decree
TO
BE CONTINUED….
5.