Major Court Decisions Will Shape the Internet in 1999
By Carl S. Kaplan
The New York Times
January 1, 1999
H.L. Mencken, the sage of Baltimore, once advised that when crafting an editorial, it is better to be wrong than timorous. The same truth might be applied to the prognostication business, where boldness counts. With that in mind, Cyber Law Journal asked a panel of legal experts to predict the most significant or interesting developments in Internet law and policy for 1999. What follows are edited excerpts from some of their fearless responses.
Eben Moglen, professor, Columbia Law School
1. U.S. v. Microsoft: Should it happen that Microsoft is found liable for antitrust violations, the single most important legal event of 1999 will be the decision as to what do about it. The right answer is to make slight compulsory licensing changes to allow the volunteer programmers all over the world who write the free GNU/Linux operating system to release code freely that would make GNU/Linux run Windows applications programs. That way anyone who now uses Windows-based programs of any kind could run those programs either under Windows or under a much more technically sophisticated but completely free alternative operating system. Immediately, Microsoft would have the strongest possible competition in its core market, eliminating the problem of possible coercion of other market participants, and with a minimum of government intervention in industry.
2. Encryption regulation implodes: Next year people will become generally aware that every multimedia notebook on the planet can be turned into a strong-encryption secure telephone at no cost, using freely available software. The recognition that traditional encryption regulation is entirely obsolete will spur further development around the world in both authoritarian and libertarian directions, depending on local government conditions.
3. Personal information privacy: As the European Union and the United States try to find a modus vivendi for the continued exchange of commercial data, U.S. insistence on free-market, minimum-regulation approaches to information privacy will come under intense pressure, as a new consumer movement tries to use international privacy law to rein in the behavior of large corporations in the U.S. economy. This story will come to no resolution in 1999, but it will rise to a prominence it never had before.
Blake A. Bell, counsel, Simpson Thacher & Bartlett
I believe that as massive numbers of inexperienced investors begin to invest through online brokers, we are going to see increased instances of investor losses that lead to arbitration claims against the brokers, alleging that investors were permitted to trade themselves to ruin through risky investments that were unsuitable for them and that the brokers should have known were unsuitable for them.
Jeffrey R. Kuester, partner, Thomas, Kayden, Horstemeyer & Risley
1. More Internet patents. The patents that were issued last year were filed in 1995, when commercial use of the Internet was new. Consequently, a much larger number of Internet patents should be granted in 1999. Patents prevent others from doing certain things, such as designing and maintaining certain types of Web sites. Thus, as more and more Internet patents are issued this year, there will be more electronic landmines to avoid for all companies with an Internet presence.
2. Hyperlinking. In 1999, the Ticketmaster v. Microsoft case should begin to shed light on the legality of hyperlinking without permission. [Ticketmaster sued Microsoft in federal court in 1997, challenging Microsoft Sidewalk's right to link to pages deep within its site, bypassing its home page.] Most attorneys around the country have been waiting a long time for guidance from the Ticketmaster case. Ticketmaster certainly thinks there is a trademark problem with unauthorized deep hyperlinking. Since both sides in the matter have both the money and apparent intent to fully argue the issue, this case is definitely the ticket.
Kenneth C. Bass III, partner, Venable, Baetjer and Howard
(Bass represented the library trustees in Loudoun County, Virginia, in their defense of a strict content filtering policy on library computer terminals available to adults. The policy was deemed unconstitutional by a federal district court judge.)
1. The decision in U.S. v. Microsoft -- a critical first-decision on the future of the leading software producer and the effects of legal controls on software development. At least as significant as Judge Greene's AT&T decisions [which led to the breakup of the company]. The Microsoft trial verdict will either reinforce Microsoft's marketing and business approach to the world of software and the Internet, or cause a substantial rearrangement in the companies that do Internet software business. In short, the decision will either lead to a continuation of Netscape-like startups or rapid transition to a Microsoft-controlled oligopoly of Internet software.
2. A second judicial decision, either by way of appeal in the Loudoun case or by way of a second litigation, adopting the 'other' view [that filtering of library terminals for adults does not violate the First Amendment] and setting the stage for U.S. Supreme Court resolution of the novel legal issues. . . . I genuinely believe [the Loudoun County filtering policy] will ultimately prevail when, and if, the issue ever gets to the appeals court or the Supreme Court.
Dan L. Burk, professor, Seton Hall Law School
For 1999, I'd say the most significant thing pending is the certain re-introduction of database legislation in Congress. This legislation nearly passed last year, but was stopped at the last minute because there wasn't enough time for hearing or compromise. It is extremely controversial -- it would create a new form of intellectual property in databases. Critics claim it wold create significant barriers to small database providers, allowing large information industry companies to gain monopolies over collections of information.
Robert W. Clarida, attorney, Cowan Liebowitz & Latman
In 1999, it will be interesting to see what, if anything, happens with database protection in Congress. Also, I'm looking forward to the Second Circuit decision in Tasini v. New York Times, which will be a major decision affecting electronic rights for freelance writers, no matter how it comes out.
Michael Froomkin, professor, University of Miami School of Law
1. The U.S. Court of Appeals for the Ninth Circuit will decide the Bernstein case. Originally taken up on an "expedited" basis almost a year ago and inexplicably delayed since, the court is being asked to rule that Daniel Bernstein's cryptographic source code is First Amendment speech, and hence exportable, or that no program is covered by the First Amendment. A win for Bernstein means the case will go to the Supreme Court; a loss will invite the government to re-write the export control rules to include, for the first time in our history, a ban on the export of some books [because the books reprint certain encryption source codes that the government says are illegal to export].
2. Law enforcement officers will spend increasing hours online posing as child pornographers and young girls. As a result there will be more media-friendly arrests of Internet users for obscenity-related offenses. As a political result, if logical non sequitur, the FBI will renew its calls for domestic controls of cryptography.
Yaman Akdeniz, director of Cyber-Rights & Cyber-Liberties (UK) and Researcher at the Cyberlaw Research Unit, Faculty of Law, University of Leeds
1. In 1998, the European Commission announced a draft "Directive on Certain Legal Aspects of Electronic Commerce in the Internal Market." I look forward to the final version of the report and its implementation in 1999, as it will clarify for good the issue of Internet service provider liability within Europe. According to the draft directive, ISPs shall not be liable, other than for injunctive relief, for the information transmitted, on condition that the provider does not initiate the transmission, does not select the receiver of the transmission, and does not select and does not modify the information contained in the transmission.
2. A further threat to cyber-speech will come from the development of rating and filtering systems outside the United States. Currently, these blunter instruments are being developed within the European Union under the EU action plan on promoting safe use of the Internet, but such technological solutions will only give a false sense of security to parents and concerned users rather than addressing the potential problems.