October 19, 2000-Vol32n9: Q&A

Is e-law breaking any new ground? Or do the legal rules of the "real" world apply? Should, for example, slander or fraud committed via the Internet be handled legally the same way as slander or fraud committed via the telephone or snail mail?

The basic principles of law-that is tort, contract and property-are not altered by the introduction of the Internet. There are some new problems, such as how to handle linking or privacy issues in the virtual world, but these are perennial problems in new technological packages. The new challenges raised by the Internet are ones of ownership and accountability. For example, one issue raised by the Internet is that of the liability of an Internet service provider (ISP) for the actions of a subscriber or other user of an Internet service. Although this seems like a new problem, the legal issue raises fairly traditional questions of agency law; that is, who is acting on whose behalf and who should be accountable. The challenging legal question is how to adapt old principles to new factual situations. The answer rests in understanding the policy justifications and historical background of the old principles and the current needs and problems raised by the new factual situations.

Is there case law yet in this area? What kinds of cases will you use to teach your students about e-law?

There are several cases in the area of Internet law and I could not adequately address them all here. An important new casebook recently has been published in the area by a major law-book publisher and authored by several leading scholars in the areas of intellectual property and computer law. Internet-law cases have entered my coursework in several ways. I have taught in three principal areas: tort law, intellectual property and antitrust. In the last two areas, Internet-law cases are pervasive and offer important challenges to intellectual property, such as what constitutes fair use, and to antitrust, such as what are permissible agreements among competitors in the area of business-to-business commerce. Tort law, a fairly traditional field dealing with liability for harms and injuries to third parties, also has been expanded by the Internet. There are some very interesting recent cases about liability for "spamming" under the traditional tort theory of "trespass to chattels," which deals with physical damage to personal property. Several spammers have been found liable for trespass to chattels when their spamming activity caused harm-usually by slowing down or causing servers to crash. These cases illustrate how old principles are applied to new fact situations.

Is e-law the specialty that the savvy law student should pursue? Will the job market be wide open for these students?

I am not here to give career advice. A smart law student will study broadly across different areas and perhaps concentrate in one or two areas that are of personal or professional interest. Internet law or computer law or intellectual-property law would be a part of that program since the issues are pervasive across legal fields. A smart student should not focus narrowly on any one field without exploring as many areas as possible, which is what law schools should be designed to allow and encourage.

Privacy appears to be a crucial issue on the Internet. A good portion of the email we receive is unsolicited junk. How do these e-entrepreneurs get our email addresses so quickly? How can we protect ourselves from this spam?

The same way they find our "real-world" addresses through mailing lists and phone directories. You can limit this problem by not giving out your email address readily or by using filters available on most common email programs.

Right now it appears the Internet is totally unregulated. Should the federal government step in to protect consumers?

The federal government has intervened to protect consumers in several ways, and existing laws do extend to Internet transactions. Whether there should be special federal legislation to deal with consumer fraud on the Internet is a difficult question. Right now, there does not appear to be a need since most existing federal statutes could work. It also is wrong to say that the Internet is totally unregulated. Most existing law would apply to activities on the Internet, though of course there are complications, such as issues of jurisdiction and proof.

Can you explain the whole Napster issue?

The issue is one of how music will be distributed to the consumer. The music industry has evolved through several familiar means of distributing music: concerts, record and CD sales, radio, jukeboxes and licensing of performance rights to different bands or to movie/TV producers. Also familiar to many is the underground way in which music has been distributed: sharing of records and CDs, recording of concerts (unquestionably illegal), making of tape recordings, etc. These two methods of distribution have come into conflict on a massive scale in the Napster case. The file-sharing technology offered by Napster creates a fairly effective and substantial distribution mechanism for music that allows the consumer an end-run around traditional distribution outlets. The technology also allows consumers to repackage music. For example, consumers through Napster can download and acquire one song without having to buy the album on which the desired song is bundled with other songs. This unbundling is particularly desirable and also threatening to the industry. Napster also allows the distribution of music that may not be profitable to market through traditional distribution channels, such as music from other countries and old songs and pieces of music that are available only on vinyl because it was not cost-effective to transfer them to CDs. The Napster technology is too valuable to vanish through law or other means. Most likely, the technology will be subsumed by the Recording Industry Association of America, either through outright purchase or through a licensing mechanism, such as what exists under Broadcast Music International/American Society for Composers, Artists and Performers, or the mechanism that exists for licensing performance rights on jukeboxes. That is what I predict will be the result; how we will get there is something that I do not feel comfortable in predicting.

What question do you wish I had asked, and how would you have answered it?

Is the Internet and the interest in the law of the Internet a fad? Many people think so or hope so, but the Internet and Internet law is more than the "flavor of the month." Although I do not think that the technology radically alters our legal world view in any way, it does challenge the way in which we as a society fashion our means of communication and distribution of information and entertainment. The fun and challenging question is adapting legal principles and ideas to the new social and economic arrangements.