Saturday, November 15, 2008

Home computer and Internet users need protection of legal reforms

There does seem a need to pursue some legal reforms to protect home and perhaps small business computer and especially Internet users (perhaps even cell phone users, too) from “chilling” legal exposures. While recently I’ve written about media perils for bloggers, there seems to be a need to rethink possible risks for ordinary users even when just surfing or accessing material.

One thing, there has been discussion of a need to clarify downstream liability concerns if a person’s machine is hijacked, along with security education, standards for anti-virus packages, and even an “Internet driver’s license”.

Consumers, as we know, face sudden civil liability exposure if they illegally download copyrighted materials, especially songs and movies. Most of the exposure in practice seems to come from P2P networks, particularly for users who set themselves up as “nodes.” However, parents have been sued (starting with phone calls, often) for activities of their kids or even visitors who used their computers. Another exposure would come from making illegal copies of software or movies. The theory is, of course, is that the vendor is entitled to and needs the income from original sales. But I can remember back in the 1960s taping phonograph friends’ phonograph records, even though I bought hundreds of them. In the 1980s, before buying compact discs as they came out (and they were expensive then), I made cassette copies of some of my own records just to preserve them from wear. Was this illegal? In the early 1990s, there were controversies when companies sometimes made diskette copies of dialup software for on-call employees to take home, before the Software Publishers Association started auditing companies for violations. Moviegoers have, in a few occasions, been arrested and prosecuted for trying to camcord trailers of films in theaters.

If an Internet visitor views an illegally uploaded video from YouTube, is she guilty of infringement herself? The Internet visitor in this case is not always in a position to know if the video infringes or was posted without permission. It would sound as though that could be comparable to music downloads, but I’ve never heard of people being sued for surfing and saving copies for their own use. (They could be sued if they posted the copyright materials somewhere else). Nevertheless, it sounds like, by analogy to the P2P suits, there could be a theoretical exposure for consumers that the law should address. The issue could come up in the Viacom litigation.

The other exposure could come with “accidental” possession of child pornography (from machine infection, as discussed Nov. 11, even in the workplace) by mere searching and surfing. Someone may not know from the title of a domain that illegal content is present. One might encounter the problem while moderating comments for a blog or doing legitimate research. It appears that police sometimes track home users visiting materials being tracked by the National Center for Missing and Exploited Children. This makes sense for some overseas material that the US cannot shut down readily. But if illegal material is hosted domestically, it seems prudent that it be taken down immediately rather than left up to expose visitors possibly to accidental viewing and accidental “strict liability.” Police stings, such as those described by Wired Magazine in early 2003, have been set up (with Yahoo! groups and with some Usenet groups) but if the enticing material was illegal, why wasn’t it just shut down immediately? It is legal for police to impersonate minors in order to attract and prosecute criminal behavior, and this happens in every state and in most western countries including Britain and Canada. But that doesn’t mean posting illegal content and therefore having law enforcement or a cooperating company “possess” it first under technically illegal circumstances. There need to be definite legal limits on what kinds of “entrapment” are acceptable.

Home users rightfully expect to be able to depend on common sense, and in general will not have the legal expertise to know reliably if they could get into trouble. Home users also believe that if they visit sites or services hosted by reputable companies they will be all right. Of course, these companies cannot be required to prescreen what is published (that’s the Section 230 and DMCA safe harbor issue) and depend on user feedback to notify them of infringing or illegal materials. (They are required to act on copyright claims and on child pornography, in varying circumstances.) Users (not legally sophisticated) might believe that they are protecting themselves by flagging or reporting content that is remotely questionable, burdening ISPs or publishing services and employees who themselves lack legal training.

All in all, this sounds like an area that needs major legal reforms.

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