JILT 1997 (2) - Mark Gould
Thomas J. Smedinghoff (ed)
Addison Wesley Developers Press, 1996, US$34.95
544 + xxiv pp., ISBN 0-201-48980-5
|3.||The Manifestation of Online Law
This is a Book Review published on 30 June 1997.
Citation: Gould M, 'Thomas Smedinghoff's Online Law', Book Review, 1997 (2) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/bookrev/97_2goul/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_2/gould/>
As with many other areas of computer-related law, there are two ways of thinking about the way law might apply to the Internet. The first approach considers that this new medium operates outside the legal status quo and therefore requires the construction of new legal rules for its regulation. The second regards it as a challenge to legal ingenuity and seeks ways of adapting existing legal rules to that challenge. Those who wish to use the network for commercial purposes will naturally be happier with the notion that there is already a legal framework which might protect their investment, as opposed to a mere hope that their involvement in the Internet is as safe as real-world commerce. This book, which has been written for the Software Publishers Association by members of the Information Technology Law Department of the Chicago firm McBride Baker and Coles, should go a considerable way towards providing that peace of mind. In the first chapter, the editor, Thomas Smedinghoff, sets out the book's objectives. He recognises that, although the law has to adapt to the changing culture of the Internet, there may be limitations to the effectiveness of those adaptations. Nonetheless, the book comprehensively explores the ways in which existing legal principles may be used in cases arising out of the commercial use of the Internet.
Whilst Online Law is broad in its scope, covering a vast number of areas of law, it is not particularly deep. This is in keeping with its intention "to provide practical, understandable, and useful information on the current state of the law as it relates to all aspects of doing business on the Internet." (p. xix.) The book attempts to provide guidance for both businesses and their legal representatives. This is achieved by sketching the general principles of the law in the text, whilst providing pointers to the relevant case-law in the notes. The authors thereby clearly imply that the law is not as straightforward as the text may indicate. However, the text is lucid enough to make it clear to lay readers what their legal obligations might be. The authors have chosen not to describe the technical aspects of the Internet. This is probably a wise course of action, since many of their readers may be better informed in this regard. Nonetheless, there is a valuable glossary and a brief but comprehensive introduction to cryptographic techniques at the end of the book, for those who need it.
Online Law is divided into five substantive sections, each of which addresses the law relating to a particular use of the network by business. The first two of these, "Information Security" and "Online Transactions", offer a synopsis of long-established concerns in computer law. There is little here which is specific to the Internet, but it is particularly useful to have the information on digital signatures, authentication, and payment mechanisms gathered in one place, and together with the later sections. The third section, on "Rights in Electronic Information" will probably be the most well-used section of the book. The Internet simplifies the already straightforward abuses of information made possible by the computer. The chapters in this section make it clear what rights exist and the ways in which they may be protected. In addition, there is a chapter on an Internet-specific problem - the interaction of domain names and trademarks. It is also worthy of note (especially for an English reader) that rights of publicity and privacy are canvassed in this section. The concern addressed in those chapters carry over into the fourth section, on "Regulating Information Content". Here one gets a definite American flavour. There is a chapter on the role of the First Amendment, and the chapters on sexually explicit materials, defamation, and the regulation of advertising are also less clearly applicable outside the United States.
Some of the concerns which might be raised by a non-U.S. reader are addressed in the final substantive section, "Regulating Online Conduct", the first chapter of which examines the question of jurisdiction. Despite this concession, however, it is clear that the target readership is based in the United States of America. This last section is a little less cohesive than the earlier ones, as it contains chapters covering subjects as diverse as export controls and e-mail in the workplace. There is also some overlap with earlier chapters in other sections. Chapter 28, on Unfair Competition and Deceptive Trade Practices, needs to be read with earlier chapters on trademark and copyright, as well as the chapter on advertising regulation. Likewise, Chapter 29, on Liability for Conduct of Others, adds a gloss to the earlier treatment of breaches of copyright and liability for defamation. There is a risk that a hasty reader will miss these areas of overlap and gain a slightly mistaken view of their responsibilities.
3. The Manifestation of Online Law
It seems a little odd for a book about an area such as the law relating to the Internet to be published only in the traditional form. This book is now a year old, and many of the cases it refers to have been reconsidered. For example, the Communications Decency Act is referred to in Chapter 20, together with a note that its constitutionality has been challenged. In the meantime, that challenge was successful, and has been appealed to the U.S. Supreme Court, and a decision on that appeal is due very soon. Likewise, the issue of personal jurisdiction has been considered in a number of Internet-related cases during the past year (see, for example, Compuserve v. Patterson 89 F. 3d 1257 (1996)). In addition, there are new legal issues arising almost on a daily basis. There is, for example, a campaign to extend the U.S. law on junk faxes (47 U.S.C. 227) to unsolicited commercial e-mail. As the context in which the law operates is so new, the law itself has to adapt quickly. It may therefore be difficult to be certain that some of the propositions made in the book are still true. The authors cannot be blamed for this. However, the publisher missed a valuable opportunity to provide an updating service on the World Wide Web, which would have enhanced the utility of their publication. If necessary, such a service could have been password-protected so as to exclude those who had not bought the book. Unfortunately such a use of the technology runs against the traditions of publishing - the fact that the publisher was incapable of printing the correct URL for its own web-site on the cover of the book suggests that their commitment to such traditions prevails.
Naturally enough, Online Law has been written for an American audience. The authors, the publisher and the commissioning organisation are all based in the United States. Unfortunately, that is not necessarily true of many of the transactions undertaken by the readers of the book. Admittedly, this fact is recognised in the chapter on jurisdiction, but this limited approach may prove to be too narrow. The treatment of regulation of the Internet and Internet-based commerce is particularly U.S.-centric. There is no guarantee, for example, that the Advertising Standards Authority in the U.K. will refrain from examining advertising which originates in other countries. There are also a number of unanswered questions about the taxation of Internet commerce. Answers to these and similar questions would probably require a more detailed treatment of the law than Online Law provides, but it would have been useful to see the issues raised throughout the text, rather than in specific places.
Online Law is limited in another respect. It is aimed at business. This is understandable, but readers should be aware of the assumptions that result. There are a number of questions which might be asked by those who use the Internet for educational or personal purposes. Some of those questions may be the same as those asked by commercial users, but others may not. Likewise, the regulation of Internet commerce may not necessarily produce the best results for non-commercial users. This is not intended to be a primer for policymakers or regulators, but it will inevitably end up on their reading lists.
Notwithstanding the caveats entered above, this is an important book. It is one of the first in this field; and sets a high standard for those who would compete with it. One of the fundamental features of the Internet which has caused its explosive growth is the ease with which individuals may compete with large corporations. Another, less pleasant, feature is the ease with which legal rights may be abused via the network (even if only accidentally). This book provides straightforward access to the legal principles governing Internet commerce so that those without corporate counsel can avoid expensive mistakes. As such, it ought to be on the bookshelves of any serious Internet entrepreneur.