The Internet has revolutionized the world in which we live: we are able to communicate instantaneously with one another, to disseminate and receive information on an unprecedented scale, and to (at least theoretically) track people’s activities in cyberspace. In these ways and more, the law has faced adaptive challenges: is old statutory language amenable to new advances in technology (consider whether “communicating to the public” in copyright law includes Internet dissemination which is received in individualized private settings)? Can common law doctrines be applied to the Internet context (consider whether spam on your computer is a trespass to chattels)? The early debate on these issues saw academics falling into two broad camps: exceptionalists saw the Internet as sui generis: cyberspace was a space unto itself which could not (consider the issues of jurisdiction) and, at least for some, should not be regulated. The unexceptionalists maintained that existing legal doctrine can, and should, be applied to the Internet since activities there, like everywhere else, have real-world consequences. The unexceptionalists seem to have won the day, though the challenges the law faces in adapting to this technology remain.
I was fortunate that some excellent papers were submitted for evaluation in my Internet Law 599 class this past term. It seems a shame that such papers should be for “my eyes only”. I am grateful to the editors of this year’s Alberta Law Review Online Supplement who have agreed to publish four (4) selected papers online, on a rolling basis. These papers were chosen not just for their quality but also for content in terms of highlighting topical issues and major themes of Internet law. There was one other excellent paper by Dane Bullerwell that was not chosen since it concerned criminal law and computers (I have, however, suggested that he publish this paper in a law journal). In publishing these papers online, I will provide a brief introduction for each. The papers to be presented and their authors are as follows: Alex Coombes “Free Information Exchange or Free Riding Profit Taking: Exploring the Effectiveness of Existing Copyright Law in the Context of Online Media”; Darren LaRose “EdStelmach.ca and the Tort of Misappropriation of Personality”; Dave Ranson “Can the CRTC Control Internet Radio Content”; and Maurice Dransfeld “Property Crimes in Virtual Worlds.”
1.Alex Coombes “Free Information Exchange or Free Riding Profit Taking: Exploring the Effectiveness of Existing Copyright Law in the Context of Online Media”
In this paper, the author explores the effectiveness of fair dealing in copyright law in connection with news aggregation websites, in particular Google News and Digg. The author argues that while fair dealing probably saves the reproduction of others’ copyrighted materials (see e.g. s. 29.1 and 29.2 of the Copyright Act), the doctrine is sub-optimal for a number of reasons. Fair dealing is uncertain (a notoriously fact-intensive exercise), offers zero sum results (it either is or isn’t fair dealing) and, taking a Lockean turn, allows news aggregation sites to free-ride on the efforts of primary news sites. Moreover, while news aggregation is often mutually beneficial for the aggregator and the primary site referenced, this is not always the case as mirror sites may be set up to divert users away from the primary site (thus diverting revenues). The author suggests that a revenue sharing model be used to share ad revenue between aggregating and primary sites based, for example, on click streams. There are two striking features about this analysis. First, technology may constrain the application of existing legal doctrine though it may also enable (here digital accounting) new and possibly better solutions. Second, it sheds new light on a central tension in fair use analysis. Those who have studied Acuff Rose v. Campbell[1] will recall that the tension in that case was between freedom of expression, on the one hand, and commercial use, on the other. In other words, how should fair use work when both these elements are in play, that is, the critic is profiting from her criticism? A revenue sharing model may indeed be one way of resolving this tension.
[1] 510 U.S. 569 (1994).
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