Copyright, trademark, privacy and pornography. These are all issues that, while still very much unsettled, we’ve at least begun to address online.
While not all of the answers have been great, there are signs that the law is thinking about these issues and that the wheels of justice are grinding forward.
So while that may be small comfort, it’s important to remember that there are areas of the law that we either barely have addressed or have not addressed at all.
It’s in these spaces that the next frontier of Internet law may be hiding. These may well be the areas of law to become hot topics in the coming years and they could easily be the areas that will have huge impacts on you and your sites as they rise up.
On that note, here’s a look at the areas of law that we haven’t really begun to address, but most likely will have to soon.
1. Internationalization of Law
Typically, a site is seen as being bound by the rules of the country it is hosted in (the same as a person is bound by the laws of the country he or she is in). So, if you’re a U.S. citizen and you host your site in China, your site has to comply with Chinese law or move.
On the positive side, this can be useful if you live in a nation like China or Iran that is known for Internet censorship and tightly controlling the types of sites that citizens can create. On the other hand, it can be bad if you use it to “forum shop” for a site most countries would consider illegal.
Attempts to standardize laws across borders have, for the most part, failed. The first problem is that traditional methods have involved using treaties, which is a slow, tedious process with few guaranteed results. The other is because such attempts to standardize, such as with the Anti-Counterfeiting Trade Agreement (ACTA) are wildly unpopular.
The Internet is the first truly global thing. Cars can cross borders, boats can cross oceans and planes can cross countries, but the Web crosses the world and that creates a need for a truly global law, something that has never existed before.
This has created the desire for some truly global standards when it comes to law. Standards that can’t really be reached through treaties and will likely require something very different in the near future.
2. Jurisdiction
A related issue with international law is the issue of jurisdiction, meaning which court or courts have the right to hear the legal issue before them.
Think about it this way: If an Australian man uses a U.S. server to violate laws in France, where is the case handled? Many would jump and say he should be prosecuted in Australia but he didn’t break any laws there, in fact, what he did might not even be illegal in Australia.
The next solution many have is to ship him to France to face the court. However, he didn’t break any laws while physically in France and, theoretically, under French law.
But what about the United States? What he did might be illegal there and owning servers and equipment there could grant jurisdiction as he has (or had) a business presence? Should he go to the U.S. instead?
These are the type of jurisdiction issues that the Web raises. Though jurisdiction law has existed for centuries, it’s typically dealt with physical actions and with returning people to the physical place they committed a crime or needed to be sued. Now, it’s possible to violate a country’s laws without ever setting foot inside it.
The recent case of Kim Dotcom highlights just how bizarre this area of law has the potential to be. A New Zealand citizen facing extradition to the United States over copyright infringement, money laundering and other acts that he’s accused of having done from within New Zealand.
These days, you can commit a crime anywhere from behind your computer. We just haven’t necessarily figured out how to make sure that such crimes are punished.
3. Property on the Web
Think about this, the Internet is a world where nothing physically exists, at least not in the same concept it’s used. If you get a special weapon in an online role playing game, a digital copy of a book or access to an online site, you’re paying or acquiring something that doesn’t really exist, not in the physical sense of the word.
So what happens when someone steals your virtual property or you’re denied access to a work that you legitimately bought? It’s often times unclear.
In some cases, this comes down to a matter for contract law. When you buy a game on Steam or a book through Kindle, you’re agreeing to a set of terms that often gives the company the right to serve you your content at their discretion, even if you paid for it. This is how cheaters are banned from video games and, sometimes, legitimate customers are denied access to works they bought.
Also, with a physical object you own, you have certain rights. For example, you can destroy something you own, you can resell it or you can give it away. Though there are some restrictions, such as with firearms, for the most part, any physical object you own, you can do with as you please.
However, if you try to resell your games on Steam or your books on Kindle, you’re likely to find that you don’t have those rights online. Though the European Union recently ruled that citizens should be able to resell digitally purchased goods and there is a push to force Steam to comply, there’s no indication as to how this would work or what structure this would take.
While intellectual property law does cover a lot of the property online a lot of the questions digital property raises can’t be answered easily, creating the possible need for a whole new definition of what it means to own something.
Bottom Line
The simple truth is that the world and its courts have never seen anything like the Internet and the laws have no hope of keeping up.
In the long run, the real change the Internet may bring to the law is not any of these areas, but a rethinking of how we view the idea of law itself. After all, when it takes longer to pass a law that it does to invent a new technology, it’s clear that the system we have for creating and enforcing laws can’t catch up or keep up.
How we fix that is a tough question and I doubt there are any answers that will be liked. Every possible solution has serious drawbacks.
However, one thing all of this does make clear is that the Internet will change the world. To be sure, it’s a gradual change, one that moves over years, but the effect is still faster and greater than anything that’s come before it.
Think about it this way, the first “modern” automobile was invented in 1771 and the first speeding ticket was handed out in 1904.
Clearly, the car took a lot longer to change the world and its laws than the Internet has and that change is only accelerating.