Internet law is a lot like non-Internet law — but it usually involves some twist. In every field, there is usually some way in which, because of the Internet, traditional law doesn’t work, and a problem develops. So courts, legislatures, or lawyers have to somehow make a fix for that problem.
This blog will examine those fascinating Internet law twists. For each area, we will describe some business law basics and then give you the Internet law twist. We will also periodically write about other legal issues related to the creation, publication and dissemination of information via the Internet. If you come across any topics you’d like Internet Law Twists & Turns to cover, please e-mail me at msableman[at]thompsoncoburn.com.
Lawyers and lawmakers have spent more than two decades wrestling with the law of online communications. With regard to libel and traditional content-based torts, the problem was that making Internet intermediaries, like service providers and website operators, liable, either as distributors or as publishers, would inhibit the development of the Internet and lead to censorship or self-censorship. The fix was section 230 of the Communications Act, enacted in 1996 — a special exemption from liability for Internet intermediaries. It was the first major Internet law twist.
Copyright raised a similar problem. Under traditional copyright secondary liability principles, an Internet service provider (ISP) could be liable just for being the intermediary between a copyright infringer and the Internet. No one would willingly provide ISP services if they could readily be liable themselves for copyright infringement due to the conduct of any of their customers. And there was another problem — if ISPs received section-230-like immunity, copyright infringers could have free reign to infringe, especially if they could hide their identities or location. So Congress developed a different legal twist for copyright — the Digital Millennium Copyright Act, which made special concessions to both ISPs and copyright owners. It gave exemption from liability for the ISPs only if they followed the DMCA procedures, and it required takedown remedies and identification of suspected infringers for the copyright owners.
In the trademark area, similar legal problems developed because of the way that cyberspace works. For example, two special procedures were developed to address one of the most unique problems in the Internet arena — cybersquatting. Other Internet twists “fixes” in the trademark area are less overt, as courts and lawyers dust off infrequently used doctrines like “initial interest confusion,” struggle with the scope of “fair use” and “nominative use,” and attempt to reach the right balance as to the scope of contributory liability.
In the e-commerce area, the catch was that electronic contracts aren’t formed the same way as written contracts. The traditional model of a written contract signed by both parties doesn’t fit Internet practice. Neither does a Uniform Commercial Code model, based on exchanges of paper and forms and particular kinds of conduct (such as shipment and acceptance of goods). So special fixes for e-commerce were developed like the Uniform Computer and Information Technology Act, “shrink-wrap” and “click wrap” theories of assent, and recognition of electronic signatures. These are the Internet twists of the e-commerce world.
In practically every area of Internet law — social media, blogging, advertising, taxation — some special rules apply to Internet transactions. Internet Law Twists & Turns will explain and follow those twists of Internet law, and help businesses understand what they need to know as they use the Internet.
Mark Sableman is a partner in Thompson Coburn’s Intellectual Property group. He is the editorial director of Internet Law Twists & Turns. You can find Mark on Twitter, and reach him at (314) 552-6103 or msableman@thompsoncoburn.com.