Internet Regulation
| Author | Jeffrey Wilson |
| Pages | 1041-1048 |
Page 1041
The Internet is an immense labyrinth of more than 200 million computers, computer networks, and databases interconnected across the world. Through its user interface, known as the World Wide Web, the Internet gives users access to a vast amount of information, including typewritten text, tabular and graphic material, sound recordings, video images, pictures, and computer programs, which are stored at locations called "Web sites." Each Web site has a unique address, identified by its alphabetic Universal Resource Locator (URL) and its numeric Internet Protocol (IP). For example, http://www.montana.edu is the URL for Montana State University's Web server, while 153.90.2.1 is the IP for the school's Web site. The Internet also enables users to communicate to each other through e-mail, instant messaging, chat rooms, and message boards.
Most users do not access the Internet directly but instead go through an Internet Service Provider (ISP). ISPs typically charge subscribers an hourly or monthly fee for the service they provide. In addition to providing users with a connection to the Internet, many ISPs offer content of their own, ranging from e-mail and video games to personal banking, home shopping, tax, and research services. Subscribers connect to ISPs in a variety of ways, including cable modems and satellite uplinks. However, the most common means of accessing an ISP is over a telephone line. ISPs provide subscribers with telephone numbers that dial into servers that are connected to the Web.
Once connected, users literally have the world at their fingertips. Web sites today are as diverse as they are countless. Governments, governmental watchdogs, non-profit organizations, commercial entities, consumer protection groups, educational institutions, religious institutions, news media, and members of the sports and entertainment industries are just a few of the entities hosting Web sites on the Internet. The group of users visiting these Web sites is similarly large and diverse. In September 2001 researchers estimated that approximately 420 million people were accessing the Internet each day in at least 27 countries. Despite the enormous amount of daily global Internet traffic, no single authority exists to regulate it.
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In fact, the Web was designed in part to thwart outside control and withstand foreign attack. The Internet evolved from the Advanced Research Project Agency Network (ARPANET), which was created by the U. S. Department of Defense in 1969 to function as a decentralized, self-maintaining national communications network that permitted computer-to-computer transmissions across vast distances in case the United States came under nuclear attack. ARPANET was programmed to work without human intervention, and sometimes in spite of it. For example, if a communications processing hub became disabled, ARPANET would re-route all transmissions through a different hub.
In the early 1980s the National Science Foundation relied on Internet technology to create the NSF Network (NFSNET), a high-speed communication network that facilitates research at remote academic and governmental institutions. NFSNET now serves as the technological backbone for all Internet communications in the United States. In 1989 English computer scientist Tim Berners-Lee developed the first prototype of the World Wide Web as means for the general populace to access the Internet. A year later he invented the concept of hypertext browsing, a method for imbedding shortcuts into on-screen text, a look that still defines the Internet today. In 1991 the World Wide Web debuted on the Internet, and by 1995 16 million people were reported "surfing" it each day.
As more people posted content on the Web and more people used the Web for personal, governmental, and business purposes, the Internet soon opened the door to an array of lawsuits and legal disputes. In one sense, the legal disputes were as novel as the Internet itself. But in another sense, the disputes merely presented new variations on longstanding legal controversies. As the millennium approached, law schools, lawyers, and judges were recognizing a distinct area of jurisprudence known as Internet law.
Internet law consists of state and federal statutes, case law, and other legal norms that regulate activity on the World Wide Web. Although the law governing the Internet is in many ways no different than the law governing other areas of life in the United States, legal disputes involving the Internet have generally centered on four bodies of law: (1) intellectual property; (2) free speech; (3) privacy; and (4) contracts.
Trademarks consist of words, logos, symbols, slogans, and other devices that are used to signify the origin and authenticity of a good or service to the public. Established trademarks symbolize the quality of the goods or services they are associated with, and enable consumers to make effective and reliable buying decisions. For example, the circular black, blue, and white emblems attached to both ends of motor vehicles manufactured by Bavarian Motor Works (BMW) represent a familiar trademark that has come to signify meticulous craftsmanship to many consumers. However, the federal Trademark Act only protects marks that are distinctive and not merely generic. 15 U.S.C.A. sections 1051 et seq. Once a mark is sufficiently distinctive, competitors are prohibited from luring customers away from each other by using confusingly similar marks in commerce. Competitors are also prohibited from using marks that dilute or tarnish the value of another's mark in commerce.
Most Internet trademark litigation has revolved around domain name disputes. A domain name is the portion of a URL that follows the "http://www" prefix. A domain name can be reserved for use on the Internet by registering it with any one of several registrars that are accredited by the Internet Corporation for Assigned Names and Numbers (ICANN). Domain-name litigation typically arises when a business that has invested heavily in developing good will for a famous trademark is thwarted from using that mark for its Web site by a so-called "cybersquatter." Cybersquatters are individuals who intentionally reserve a third-party's trademark as a domain name for the purpose of selling it back to the owner for a profit.
A leading case on this issue is Panavision Intern., L.P. v. Toeppen, 141 F.3d 1316 (9th Cir. 1998), in which the defendant was sued after reserving approximately 240 domain names that were extremely similar to the trademarks of famous commercial entities, including "deltaairlines.com," "britishairways.com," "crateandbarrel.com," and "ussteel.com." One of the commercial entities sued the defendant. The defendant admitted he had no intention of ever using the marks to sell goods or services, and thus the plaintiff could not claim that consumers were likely to be confused by the similar names. Instead, the court found that the defendant diluted the plaintiff's trademark by curtailing the exploitation of its value on the Internet.
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A year later Congress codified the rights of Trademark owners against cybersquatters, passing the Anti-Cybersquatting Act of 1999 (ACPA). The Intellectual Property and Communications Omnibus Reform Act of 1999, PL 106-113, 113 Stat 1501 (November 29, 1999). ACPA imposes civil liability upon defendants who have registered, trafficked in, or used a domain name that is identical to or confusingly similar to a trademark owned by the plaintiff, so long as the mark is distinctive and the defendant acted with a bad faith intent to profit from the plaintiff's...
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