Cyberlaw and Its Discontents

Cyberlaw and Its Discontents

2002-05-18
Beyond Our Control? Confronting the Limits of Our Legal System in the Age of Cyberspace
Beyond Our Control? Confronting the Limits of Our Legal System in the Age of Cyberspace
Cambridge, Mass: MIT Press. 2001. 452 pages including index.

Setting one scholar’s legalistic solutions against texts by cyber-critics and posts by netizens and web artists, geniwate looks at the issue of copyright law online.

In Beyond Our Control, Stuart Biegel, a member of the faculty at the Graduate School of Education and Information Studies and the School of Law at the University of California, Los Angeles, “…strives to discuss enough representative examples so that a comprehensive overview of current regulation issues [in cyberspace] emerges” (xiv). In order to carry out his project Biegel must plot a course through a maze of competing interests, summarized in his conclusion:

Cyberspace regulation continues to mean different things to different people. For many stakeholders, particularly in the libertarian atmosphere of the online world, the mere mention of the word regulation is enough to generate extremely negative reaction. Dystopian predictions of pervasive monitoring and dictatorial control over every aspect of our cyber-lives are inevitably set forth in this context, and government is typically portrayed as the ultimate enemy.

For others, cyberspace regulation generates images of a return to a simpler and more circumscribed lifestyle, when human action seemed much more predictable and when people could more easily rely on certain time-tested principles to guide their daily affairs. Those holding such a view do not feel threatened by government action in cyberspace, but rather by lawbreakers and anarchists who might use this new communications medium to further their own nefarious ends. On some level, particularly for certain problem areas, the Internet itself is seen as the enemy here. Regulation is viewed as a panacea, and the government is perceived as not doing enough. (353-4)

As a consequence of these competing viewpoints, Biegel acknowledges the moral ambiguity of areas of cyberlaw (233). In chapter 1, he likens the growth of the Internet to the “civilising” of the American West, as it has been portrayed by Hollywood. Biegel says about both:

On some level, at the heart of each story, it is unclear who really is in charge and what the rules are. (17)

These comments suggest that so many competing interests will impede a happy solution. Biegel goes on to discuss the differences between cyberspace and the material world, and whether regulation is the answer. Beyond the first part of the book, however, Biegel’s legalistic predispositions take over.

Biegel establishes a taxonomy of legal and ethical problems, which becomes the structure for his analysis of cyberlaw issues. From the most to the least harmful they are:

1. Dangerous conduct - physical or national security is at stake (55); for example email threats and websites that incite violence (56), child pornography (57), unlicensed online heath care (58);

2. Fraudulent conduct - economic crimes and misbehavior (65);

3. Unlawful anarchic activity - which is “most controversial since there is frequently so little agreement regarding the nature and the extent of the problems”; for example - digital copying, pornography, online defamation, which “exemplifies the anarchic image of the online world” (73); and

4. inappropriate conduct - harassment, hate-related activity, overly aggressive business promotion and other offensive acts (85).

Biegel concludes that the way to “improve” the current range of regulations, which may either be not strong enough, not malleable enough to suit technological change, or unrealistic and outdated (304), is to introduce a variety of three types of regulation (359). They are:

1. traditional nation- and state-based regulation;

2. international treaties; and

3. code based and architectural regulation.

However Biegel also suggests that some problem types fall outside the regulatory frameworks, for example in regard to online hate. Biegel suggests that community-level approaches - for example private rule making at ISP level, education, policies to promote diversity - might be more appropriate here (349).

Although Beyond Our Control covers many areas, I am going to focus on copyright. Copyright law attempts to balance the interests of consumers to access texts (understood in the broadest sense), and the producers of the texts to make income. Biegel doesn’t specifically address copyright issues for digital artists and theorists. I’m now going to quote what several digital artists feel about digital copyright:

I think we’re dealing with an outdated paradigm of copyright that was not made for the artist, it was made for publishing houses. I wish that more artists understood the reality that copyright privileges capital, and not the individual.
Patrick Lichty 12/04/02

…net art space, in its immateriality and evanescence, resembles a kind of condition of poetry. I agree that we should be paid: but by whom and at what cost? the political conditions that prevail in my country support a range of technological innovation and less regard for content. It is a kind of amnesia, a forgetting of content, that contributes to a malaise just under the surface in the states.
Christina McPhee 18/04/02

the issues of copyright that i *am* very concerned about are centered around the necessity to have copyright at all. some folks may be aware of a bill in the US congress that requires all media devices, hard or soft, to have a digital copy protection embedded in them. this law will force me to stamp all my work with some federal approval code, whether i want to or not. it will cost me money to get this stamp. somehow this is for my own good, this will somehow “protect” my rights of copy? no thanks, rip me off please.
John Klima 8/04/02

As we can see, the reaction of artists to copyright law ranges from a position that copyright should be made to work better in their favour, to a position that copyright is inappropriate for the digital medium and will only ever work in favor of corporate players.

Biegel favors a pragmatic approach that includes rules that all netizens can understand, involves his three modes of regulation, and makes some private personal activity legal. Some of Biegel’s possible solutions, in particular architectural ones, should be of concern to artists. In regard to copyright:

reasonable code-based adjustments can play an increasingly important role in bringing a semblance of order to this territory. (314)

Examples of code based regulatory options are trusted systems and digital watermarking. However, such architectural regulation may not just limit what we are allowed to do, but even what we dream of doing. As US copyright lawyer Lawrence Lessig comments:

There is nothing to guarantee that the regime of values constituted by code will be a liberal regime; and little reason to expect that an invisible hand of code writers will push it in that direction. Indeed, to the extent that code writers respond to the wishes of commerce, a power to control may well be the tilt that this code begins to take. (546)

Furthermore:

The code need not be balanced in the way that copyright law is…. Trusted systems, therefore, are forms of privatized law. They are architectures of control that displace the architectures of control effected by public law. (528)

Lessig believes that “the law needs to protect intangible property only in order to create the incentive to produce” (“The Law of the Horse” 525). This principle might translate into a lower level of regulation and sanction than ones that Biegel considers. Potentially, Biegel’s preparedness to incorporate code-based regulation means that a small level of private personal copying, which he also supports, will become impossible.

Biegel’s potentially anti-libertarian, pro-national, and pro-commerce position on copyright is reflected in the other areas he discusses in Beyond Our Control.

These other aspects of Biegel’s approach concern me. Although Biegel is at pains to discuss the extent to which on- and offline legal situations differ, he nevertheless is prepared to accept the offline world as some sort of ideal, and therefore attempts to “slot in” the online. In intellectual property law, for example, offline practice hardly seems that ideal, given that traditional people are being dispossessed of the economic benefits of their traditional medicine by Western multinationals, and international patenting regulation means sub-Suharan Africans suffer and die for lack of access to HIV/AIDS medication.

Organizations that seem to assist the First World and multinational corporations are treated reasonably well in Beyond Our Control. The WTO is represented positively, and relatively scant attention is paid to arguments that such organizations further dispossess poorer people and nations.

Copyright law protects nations, corporations, and individuals that are already wealthy. Were international copyright treaties to be enforced, a cumulative and endless copyright trade deficit would be accrued by less wealthy and smaller nations to larger nations (in particular to the United States).

Biegel does not really explore the ways in which treating US law and ethics as the benchmark in cyberspace may result in increased international inequities. At one point, he seems to suggest that US power might be right, or at least unavoidable (352).

A particularly thorny issue in the international arena is the control of hate-promulgating websites: in the US, the First Amendment makes legal restrictions on these websites particularly difficult to enforce. In other first world nations, curtailing freedom of speech to mitigate the worst excesses of racist behavior is considered appropriate and legally enforceable (Biegel 344-345). International treaties will be difficult to enforce where different mores hold sway.

Biegal’s legal training perhaps blinds him to a range of options that might exist beyond law enforcement. Many of these options hark back to the idea of an implicit social contract in cyberspace outlined in chapter 4 (page 101), but which is sidelined for much of the book (until chapter 12, mentioned above).

Meanwhile, the history of the Internet, which was established in part as a space for free exchange of information amongst scientific and academic communities, seems to have been more or less forgone. As Sadie Plant observes:

There is always a point at which technologies geared towards regulation, containment, command, and control, can turn out to be feeding into the collapse of everything they once supported. (143; see also Lessig’s conclusion in Code)

Biegel believes that regulation is inevitable (page 52). For libertarians he offers a dystopian future in which individuals have lost the freedoms of the Internet to create and distribute any content they wish in favor of corporate control. Biegel’s solution, which is to build a consensus among stakeholders as to what is/isn’t a problem and then craft potential solutions (page 95) seems, by the end of Beyond Our Control, to have been swamped by the range of regulations he recommends.

Conclusion

As a basic introduction to what is a rather dry field, Beyond Our Control is a useful and thorough coverage of recent events and cases. For example, the story of the denial of service attacks in chapter 9 is excellent reading for the general reader. Perhaps this thoroughness is a greater strength than Biegel’s rather unimaginative legalistic solutions.

As the author says in the introduction, this book is “about control of the online world” (xiii). As such, all online users, even those who don’t think the Internet should be controlled, have a stake in these issues. Artists also may have some ability to take control if they organize cooperatively:

re copyrite - artists do have power and choice here. yesterday i got a request from a show asking me to send my online work to them on rom..(they have no money, they are poor instution, their internet connections are bad..etc etc) once upon a time i would have done it because i wanted my work to be as availabe as possible in every country in the world.., but im just not prepared to now, i wont provide content to an organistation where everyone else gets paid without a licence fee or an exhibition fee or nice publication etc… this is the only way i can think of to alter how curators and instutions work - by keep stating what is not acceptable, that artists dont work for free.
Melinda Rackham 18/04/02

We really need to think a lot more about getting together than balkanizing, friends. It might boil down to solidarity.
Patrick Lichty 12/04/02

Decisions about the legal status of online activity can and will have ramifications for what we can do there, and what the digital environment will “look like” in the future. We should all educate ourselves about the issues Biegel is raising, and although some of his solutions trouble me, I recommend this book as a solid introductory text.

works cited

Klima, John. “Re:copyright.” posted to the empyre list, 8/04/02.

Lessig, Lawrence. “The Law of the Horse: What Cyberlaw Might Teach.” Harvard Law Review, vol 113 (1999): 501-546.

Lessig, Lawrence. Code and Other Laws of Cyberspace. USA: Basic Books, 1999.

Lichty, Patrick. “Copyright?” posted to the empyre list, 12/04/02.

McPhee, Christina. “Re: Intellectual property and the space of net art.” posted to the empyre list, 18/04/02. Christina’s website is www.naxsmash.net.

Plant, Sadie. Zeros + Ones. London: Fourth Estate, 1998.

Rackham, Melinda. “Re: Forward from ippolito re gift economy vs art market #1.” posted to the empyre list, 17/04/02.