The court is sympathetic to the Blockowiczs’ plight; they find themselves the subject of defamatory attacks on the internet yet seemingly have no recourse to have those statements removed from the public view. Nevertheless, Congress has narrowly defined the boundaries for courts to enjoin third parties, and the court does not find that Xcentric falls within those limited conscriptions based on the facts presented here.

– Blockowicz v. Williams, 675 F.Supp.2d 912, 915 (N.D. Ill. 2009).

One possible solution would be to amend Section 230 so that a website would continue to enjoy immunity from third party defamations posted on their site, conditioned on the website owner offering the victim a “right of reply.” If the website owner refused to do so, then it would lose its Section 230 immunity.

This is similar to the DMCA, that conditions immunity from copyright infringement claims on the website owner’s obligation to comply with the notice and takedown procedures of the Act. The website owner can choose not to comply, but will lose its immunity from copyright infringement claims.

While the U.S. Supreme Court has held that a mandatory right of reply statute violated the First Amendment (Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)), no case has ever found that a voluntary right of reply statute would not be found constitutional.

Obviously, a right of reply should not be open-ended, since it could be misused, as the DMCA notice and takedown provisions have been misused, to stifle certain positions or promote a particular point of view, instead of merely replying to a defamatory statement. But that is simply a matter of fine tuning the text of whatever legislation might be enacted.

Do I expect a right of reply amendment to be introduced in Congress in the near future? Probably not. But if the perceived shortcomings of the current Section 230 continued to be emphasized by the courts and commentators, at some point a congressperson will take note. The danger is that Congress may not merely stop at amending Section 230 immunity, but repeal it entirely. That would be devastating.

• With cell phones to tell them the time, there is no need for a wristwatch.
• Email is just too slow….
• They never twisted the coiled handset wire aimlessly around their wrists while chatting on the phone.
• Unless they found one in their grandparents’ closet, they have never seen a carousel of Kodachrome slides.
• Computers have never lacked a CD-ROM disk drive.
• The first computer they probably touched was an Apple II; it is now in a museum.
• They first met Michelangelo when he was just a computer virus.

We all know that technology is evolving at breakneck speed. But it’s always interesting to see just what impact these changes are having on our next generation of workers, inventors and policy makers. It’s amazing how developments in technology have fundamentally affected their worldview.

The difficulty of predicting what technology is going to catch on, and the impact such technology will have on society, is obvious. However, another interesting issue is what impact technology will have on the law. The traditional mantra is that technology changes too fast for the law to keep up. Legislatures are hard-pressed to anticipate technological changes and deal with the legal issues that such changes create. However, in some cases legislatures have attempted to anticipate technological developments – often with interesting results.

I have been developing lectures for an online LLM course I will be teaching this fall in Internet and E-Commerce Law. I was reminded of two pieces of legislation that were enacted in the 1990s to deal with “emerging” technologies that can be seen as somewhat anachronistic in light of later developments.

The first is the Audio Home Recording Act of 1992. The Act was Congress’s response to a controversy between the music industry and the consumer electronics industry regarding the introduction of digital audio recording technology into the domestic consumer market. Everyone thought digital tape recording was going to be the “next big thing” and the music industry was concerned about the ability of these recording devices for piracy. Exempted from the Act were computers, which were viewed in 1992 as an unlikely device for music copying. Well, we know how well that prediction panned out. Portable music players, like the iPod, were not covered by the Act, while digital audio tape recorders (what are they, you might ask?) were. Neither the music industry nor Congress foresaw such technologies as the Internet, broadband, or audio compression (MP3) that would make the copying and transmission of music files over the Internet quick and easy. Oops.

Another interesting, but somewhat irrelevant law, is the DMCA provisions on copyright management information. In 1998, pundits saw a day when digital content files would contain “copyright management information” (CMI) that would be “read” by software and hardware devices and would control the uses that could be made of a digital work. For example, futurists foresaw a time when Internet users could download or share content files and the computer would read the CMI from the file and, depending on what the user wanted to do with the file, would automatically transmit a micropayment from the user’s bank account to the copyright owner’s bank account for an appropriate license. Photocopiers would “read” microscopic barcodes printed on each page of a book or magazine, which would determine whether a particular page could be copied at all, and if so, whether a micropayment should be made to the copyright owner for that copy.

Twelve years later, CMI technology is little used and certainly not a hot topic in legal circles or the courts.. The “problem” that proponents of the CMI legislation identified has never materialized. Oops.

That is not to say that legislatures should never legislate in anticipation of new technologies, only that they should be careful in determining which issues are ripe for legislation and which are not.

Perhaps they should ask an entering college student?

The Internet has become so embedded in most people’s daily lives that they find it noteworthy that they will be “offline” for even a few days. They often post their concerns on Facebook, not knowing what problems being unplugged may cause them.

On a more macro scale, many industries are finding it increasingly difficult to survive in this ever-more-connected world. While the copyright industries blame piracy for their falling revenues, the real culprit is the fact that the Internet has changed the way in which people consume content. If online piracy ended tomorrow, that would give only a temporary blip in revenues for the movie and music industries. However, over the long term, traditional entertainment will see a continuing decline in revenues simply because people have many new ways in which to spend their free-time and disposable income.

If we are looking for a “canary in a mineshaft” warning, just look at the publishing industry. The industry is in a free-fall. Borders UK has gone bankrupt, Barnes & Noble has put itself up for sale, independent bookstores are being shuttered at an enormous rate, and newspapers are closing their doors daily. The Federal Communications Commission is even talking about federal subsidizes for newspapers. Absurd, but true.

The fact is, if we haven’t reached the tipping point yet, we soon will. And when that happens, all the lawsuits in the world and all the government bailouts will do little to stem the tide of inevitable change. Those companies (and industries) that don’t adopt quickly will be swept aside to be replaced by new companies and industries that meet the needs of today’s (and tomorrow’s) consumers.

What those companies will look like, and how they will differ from existing organizations, no one can envision. Just like someone in 1980 would have been unable to even imagine companies like Facebook and Google, sitting here today, even the most savvy pundits are unlikely to be able to see what will take place over the next decade.

And as businesses and industries change, they will need lawyers who can help them chart a course through these massive changes. And that’s the good news for all of this.

I use Google Reader to help me locate interesting blog entries, news articles, law review articles, etc. I subscribe to slightly more than 500 different blogs, so I receive hundreds of items per day from Google Reader. I spend on average about two hours per day reviewing all of these entries.

I review each entry to determine whether it is on topic, timely, etc. If I think it is, I then highlight the title of the article and use bit.ly (a URL shortener) to generate a tweet. The tweet consists of the title of the linked article (in quotes), plus the shortened bit.ly URL. I then post the finished tweet to the appropriate Twitter account.

You may see other tweets that contain the identical title (in quotes). That means that the other Twitter user used a process similar to what I have just described. It is a fairly standard process used by Twitter users who post the same types of tweets that I do. But usually the URL will vary, depending on what URL shortener they used.

Hope that explains the process. If you have any further questions, please feel free to contact me directly at mdscott@swlaw.edu.

The program will be divided into four panel discussions addressing a variety of topics, including:

1. The New Government Energy Policies and CleanTech’s Opportunities: Incentives and Market Drivers

2. Learning from the World’s Renewable Energy Leaders

3. Clean Technology Innovation and Protection (focusing on cleantech patents, licensing and tech transfer)

4. Financing Clean Technologies

The keynote speech will be given by Ted Flanigan, President, EcoMotion, Irvine, CA

More detailed information on the event, as well as a copy of the conference brochure, is available here.

The cost for the entire event is only $195 (early bird discount) and 5 CLE credit hours are available. (Space is limited to 95 attendees, so early registration is advised.) Online registration is available here.

I look forward to seeing you and your colleagues at the Summit. If you have any questions, please do not hesitate to contact me directly at mdscott@swlaw.edu.

The IT Law Wiki has reached an important milestone with the posting of its 5000th article. We are grateful to all of the lawyers, law students and law professors who have contributed to the wiki.

While the work done thus far has been impressive, there is much more to be done. We have thus far been able to summaries only slightly more than 850 cases — most of which were decided in U.S. courts. We hope to continue to expand the number of case summaries and could use help in doing so. We are also looking to expand the number of articles that focus on non-U.S. law.

So we are issuing a general “Call for Articles” to accelerate the growth of the wiki.

If you are a law professor, and you have your students writing papers for your class, consider suggesting to those who write the best papers that they post them to the wiki.

If you are a lawyer that supervises law clerks or young associates who may not be fully occupied due to the slowing economy, consider having them do research for the wiki. It will keep them busy and help them continue to develop their research and writing skills.

Also, if you are a lawyer, law professor or judge writing papers for conferences or your firm’s website, consider posting them to the IT Law Wiki as well.

Authors retain copyright ownership of all materials posted to the wiki, and those postings are made under a Creative Commons license.

If you don’t have the time to post the materials yourself, you can forward them to me at mdscott@swlaw.edu, and I will make sure they are promptly posted.

Onward to 10,000 articles!!

The fact is lawyers have been “specializing” in videogame law since the 1980s. When I began working as General Counsel for a multimedia developer in the early 1990s, the basic legal issues of videogame law already had been well established. What was still unclear was the appropriate business model/licensing structure for such games – particularly when a videogame was to be based on a movie, or when a multimedia product was going to include pre-existing content (music, video clips, text) from other sources. And while entertainment companies and videogame developers are still debating which entity provides the most “value” to a given interactive product, the basic legal issues surrounding their relationship are well settled.

When the Internet emerged as a burgeoning field in the mid-1990s, a lot of young lawyers touted “Internet law” as the next big thing. However, except for a few areas, such as domain names as trademarks and privacy issues, most of the bread-and-butter legal issues (copyright infringement, licensing, business deals) were merely variations on what had gone before.

And while it is true that the emergence of MMOs (Massive Multiplayer Online games) have given rise to several interesting new issues (particularly ownership of “virtual property”), most of what lawyers do in the videogame arena is well-settled.

The fact is that “Videogame Law” is so well established that law schools are offering courses (see here and here) in the field to law students.

In light of these facts, it is hard to understanding why two well-respected newspapers would run articles on this issue as if it was something brand new. Perhaps a slow news day?

1. Tell me about the new Information Technology (IT) Law Summer Program in London?

The program will allow students to earn six units of course credit while enjoying five incredible weeks in London. Each student will choose two of four courses: Comparative Electronic Commerce Law, Comparative Information Privacy Law, International Cybercrimes or Drafting Information Technology Agreements. Classes will be held from 9-1, Monday through Thursday, which makes every weekend a three-day weekend. Classes will be supplemented by field trips, guest speakers and various social events.

2. When did you develop the idea for the IT Summer Law Program?

I have been interested in expanding the school’s offerings in international technology law since I joined the full-time faculty in 2003. There are not a lot of professors in Los Angeles, or even the United States, that have expertise in this area. Because of the growing importance of the European Union, and the enactment of new IT laws in the EU, it made sense to locate the program within the EU where we can hire professors knowledgeable in comparative US-EU IT laws.

3. Is this the first program of its kind?

Yes. There have been summer abroad programs that offer one or two courses in IT law, but this is the only program that focuses exclusively on international IT law. This gives students interested in practicing in this field a great opportunity to learn from professors who are internationally recognized educators in the field. It should give students participating in the program a distinct advantage over other students in getting a job in the IT sector.

4. Why London?

I actually looked at several other cities in Europe first. I had a list of characteristics I was looking for in a host city. None of the other cities had all of those characteristics; London did. In London you have first class housing and classroom facilities, a great transportation system, plenty of cultural, social and educational opportunities, easy access to other European destinations, a safe environment, and the ability to attract a world-class faculty.

London is, in my opinion, the most exciting city in the world. Spending five weeks in London is a once-in-a-lifetime opportunity. There is a dizzying array of things to do in London, from watching tennis stars at Wimbledon to enjoying plays, musicals and outdoor concerts just down the street from the school. We are literally only blocks away from the British Museum, the British Library and numerous historical sites. Stonehenge, Oxford, the Edinburgh Festival (and many other destinations) are easily accessible by train or bus. In addition, most European cities are no more than an hour or two away. For example, there is a train within walking distance of the dorm that will whisk you to downtown Paris in just two hours. You can have lunch overlooking the Eiffel Tower and be back in London in time for dinner, or spend the entire weekend in Paris or another wonderful destination.

5. What makes this such an exciting and timely program?

The Internet and electronic commerce are the fastest growing business sectors worldwide. Every company, whether considered “high tech” or otherwise, understands the importance of being “online.” As a result, there is an enormous demand for tech-savvy attorneys, even when there is a downturn in the economy. These classes are unique and will provide students with an international perspective on IT law that is simply not available elsewhere.

6. How and why was each participating faculty member selected for the program?

Having practiced in the international IT law field for almost 30 years, I have had the opportunity to travel extensively and get to know IT lawyers and academics worldwide. When I was planning this program I contacted dozens of recognized experts in the field and asked them whom they thought were the best educators in IT law in the U.S. and the UK. That search led me to each of the professors who will be teaching in the program. As shown by their biographies, they are all accomplished authors, speakers and teachers. It is a truly an amazing faculty.

7. What are some of the biggest issues in IT law and how will this program help prepare students interested in the field?

When a company establishes a website, it is instantly doing business globally. That means that the company is potentially subject to the laws of every country in which its website is accessible, including contract law, privacy law, and criminal law. It is not sufficient for a company’s lawyers to understand only the laws of the country in which that company is located. They must understand the potential impact of foreign laws on their client’s business, and the potential liability that client may face around the world. This program will provide students with that global perspective.

The genre will be science fiction, the location Jupiter, and the title “The Red Spot.” “Site 209.” My daily output will be posted at a new blog created just for this event. You are invited to come along for the ride.

A recent article by John Mackoff in the New York Times pointed out that the U.S. is beginning to lose its status as the crossroads of the Internet, with many countries and international companies routing traffic around the United States because of their concern that we are spying on their communications. “While the United States carried 70 percent of the world’s Internet traffic a decade ago, he estimates that portion has fallen to about 25 percent.” Many countries are expanding their Internet capabilities to provide an alternative to U.S.-based Internet services – business that we are losing and will never get back. As noted in the article:

“That lack of investment mirrors a pattern that has taken place elsewhere in the high-technology industry, from semiconductors to personal computers. The risk . . . is that upstarts like China and India are making larger investments in next-generation Internet technology that is likely to be crucial in determining the future of the network, with investment, innovation and profits going first to overseas companies.”

As a result, “[w]e are, by comparison, militarily weaker, economically poorer and technologically less unique than we were then.”

Will the new president, whomever he is, make a change? Do either of the candidates have a “real” technology policy that might turn things around? I haven’t seen one yet. Let’s just hope the winner has one.