15.5 Ownership Issues in the Mass Media

Since its inception, the Internet has posed problems of ownership. Over the years, the government has struggled to find ways to introduce copyright protections into the online environment because, unlike other forms of media, the Internet enables users to make an unlimited number of copies of material and to transmit that information around the world (Rosenblatt, 1997). This section explores the unique challenges of dealing with online copyright and intellectual property and the U.S. government’s role in regulating those fields.

Online Creativity and Intellectual Property Rights

Congress passed the Digital Millennium Copyright Act (DMCA) in 1998 to establish a protocol for online copyright matters. Yet the nature of the Internet causes very different copyright and intellectual property issues than older forms of media do. Because of the ease of sharing information online, for example, the DMCA has not worked as Congress expected (Electronic Frontier Foundation). The copying and sharing of materials online remain relatively simple and, as such, piracy and rights infringement run rampant. Many have argued that despite the DMCA’s attempt to stop piracy, it has done nothing (Electronic Frontier Foundation). Additionally, because the dissemination of information occurs so rapidly online, piracy opponents struggle with determining the rightful owner of a particular copyright.

The DMCA and its role in Internet policing have frustrated many online users and watchdog groups. The Electronic Frontier Foundation (EFF) claims that “the DMCA has become a serious threat that jeopardizes fair use, impedes competition and innovation, chills free expression and scientific research, and interferes with computer intrusion laws (Electronic Frontier Foundation).” In 2004, comic book company Marvel Entertainment sued game publishers NCsoft and Cryptic for copyright infringement in their online game City of Heroes. Marvel argued that players could use the character customization system in City of Heroes to make characters look almost identical to Marvel characters (Jenkins, 2004). Situations like this led groups such as the EFF to publically call for DMCA reform. Such disputes serve as reminders of the challenges inherent in issuing copyrights and intellectual property rights for the online industry.

Copyright Protection in Cyberspace

Certainly, the DMCA brought about major transformations by establishing copyright protection guidelines for the digital arena. However, in 1996—prior to the passage of the DMCA—the World Intellectual Property Organization (WIPO) established two treaties designed to “update and supplement the major existing WIPO treaties on copyright and related rights, primarily to respond to developments in technology and the marketplace (World Intellectual Property Organization).” The first of these, the WIPO Copyright  Treaty (WCT), was created to protect authors of literary and artistic works, including computer programs, original databases, and fine art (World Intellectual Property Organization). The second, the WIPO Performances and Phonograms  Treaty (WPPT), deals with “related rights,” or rights connected to copyright. This law attempts to protect the rights of performers and producers of sound recordings (World Intellectual Property Organization). These treaties both ensure basic rights, such as compensation and acknowledgment for those who create works and extend further protections (World Intellectual Property Organization).

Supported by the WIPO and the DMCA, new forms of communication now enjoy copyright protections. Copyright laws cover blogs and website content, provided that these sites contain original writing (U.S. Copyright Office). Despite these developments, however, the Internet still poses challenges for copyrighted material. Because the web changes so quickly, maintaining copyright protection with the Copyright Office may prove difficult. Presently, a work must exist in a fixed and tangible form to earn copyright protection. Different, altered versions of the same work might not have the same coverage under an original filed copyright claim. As such, authors publishing online must take pains to ensure that their work has protection.

The RIAA versus Piracy

Widespread piracy problems arose during the late 1990s with the popularization of technology allowing peer-to-peer (P2P) music sharing. Suddenly, software such as Napster, Scour, Aimster, AudioGalaxy, Morpheus, Grokster, Kazaa, iMesh, and LimeWire popped up on computers everywhere, allowing access to free music around the world—and fueling online piracy. However, in 2003, the Recording Industry Association of America (RIAA) put the laws established by the DMCA into practice and began a campaign to stop online music piracy. In response to the growing number of users, the organization announced that it had gathered evidence against users sharing music on P2P networks. Rather than go after the software engineers, “the RIAA investigators targeted ‘uploaders’—individuals who allowed others to copy music files from their ‘shared’ folders (U.S. Copyright Office).”

This data collection led to the RIAA filing more than 250 lawsuits against individuals in what many called “an unprecedented legal campaign against its own customers (Electronic Frontier Foundation).” Among the first of these lawsuits, a case against a 12-year-old girl who had to pay $2,000 and publicly apologize to settle her case. Since then, the recording industry has filed, settled, or threatened legal action against over 28,000 individuals (Electronic Frontier Foundation). The torrent site The Pirate Bay  found itself under attack for allowing users to search for pirated copies of material. This case mirrors the case of Viacom versus YouTube because the prosecution argued that The Pirate Bay should face liability for the material its users posted and downloaded. These lawsuits raise the question of whether websites have responsibility for the actions of their users, an issue that looks central to future Internet legislation (Masnick, 2009).

The Law and Online Interactions

Even the newest mass medium faces regulation via media laws. Terms of service agreements, as well as legislation such as the 1986 Computer Fraud and Abuse  Act, regulate Internet use. As the following case studies demonstrate, when it comes to criminal use, the Internet does not offer as much anonymity as it seems.

TOS Agreements

All software and most Internet sites have a terms of service agreement to which its users must comply. Terms of Service (TOS) outline legally binding rules that an individual must adhere to to use a particular piece of software or service. iTunes, for instance, makes users agree to use their downloadable material for noncommercial use only and states that Apple is not responsible for lost or corrupted files.  Anyone who has installed a new piece of software or logged on to social networking sites has agreed to a TOS. Entrance into these sites or use of a program typically requires a user to read through lengthy legal guidelines and then click a box agreeing to abide by the stated rules.

Deterred by the length and legal jargon of the standard TOS, however, many people skip to the end and simply accept the terms without reading them carefully. iTunes, for instance, has a clause that states:

You may not use or otherwise export or re-export the Licensed Application [iTunes] except as authorized by United States law…the Licensed Application may not be exported or re-exported…into any U.S.-embargoed countries…You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons (Apple).

While not all Terms of Service have such clauses, an individual’s breach of any TOS may result in suspension, restriction, or cancellation of account privileges, depending on the severity of the offense.  As individuals become increasingly reliant on Internet services such as e-mail, calendars, and social networks, the potential for disruption is enormous.

The Case of Megan Meier

In 2008, a compelling court case arose regarding TOS violation. Lori Drew, a 49-year-old woman, faced accusations of using a fake MySpace account to convince 13-year-old Megan Meier  to commit suicide. After Drew’s daughter had a confrontation with Meier, Drew created an account pretending to be a teenage boy. At first she used the persona to flirt with Meier and uncover information about the teenager’s social life and relationship to her daughter. Later, when Drew decided she had enough information, she broke off her friendship, telling Meier that the world would be better off without her. Later that day, a distraught Megan Meier hanged herself (Steinhauer, 2008). After Lori Drew’s identity was revealed, Meier’s shocked parents filed charges against her. Despite the tragic events, whether Drew had actually committed a crime remained questionable. Eventually, prosecutors decided that:

Since there were no laws that applied in Missouri, the state where this tragedy occurred, [Drew] will face trial in California (the home of MySpace) where she will be charged with—of all things—TOS violations. Creating a false identity goes against MySpace’s terms of service and…as a result she will be facing 1 count of conspiracy and 3 counts of accessing a computer without authorization (Spalding, 2008).

The complicated case had unprecedented charges. As one author writes, “This raises the questions as to how much weight do online ‘contracts’ hold (Spalding, 2008).”

Prosecutors charged Drew under the Computer Fraud and Abuse Act (CFAA), although that law is designed primarily to reduce hacking into computer systems. In August 2009, a jury found Drew guilty of “misdemeanor counts of unauthorized access,” but commented that “the CFAA was not devised as a vehicle for criminalizing simple contractual violations on the Internet (Paul, 2009).” Although some believe that prosecutors pushed the charge too far, the Drew case brought TOS agreements to the attention of the public, shedding light on the complicated laws associated with Internet use.

Crimes on the Internet

Although cases such as Drew’s have brought about unexpected challenges, other online cases have had less ambiguous results. One clarified aspect of online law involves the use of the Internet to commit a crime. Regardless of the supposed anonymity of online use, law enforcement agencies and courts can requisition Internet protocol (IP) addresses of suspected lawbreakers and trace their computers to discover their identities.  This practice has brought many individuals to trial for criminal offenses committed over the Internet.

Online Hate Crimes and Anonymity

In 1998, a federal court found a 21-year-old Los Angeles man, Richard Machado, guilty of sending racist death threats to 59 Asian students. This case set a precedent because Machado became the first person to face a conviction for an online hate crime for sending a message via e-mail. Machado had used a campus computer to send an e-mail to a group of mostly Asian students at the University of California, Irvine, saying, “I personally will make it my life career to find and kill every one of [you].” Machado, a former UC Irvine student, signed the e-mail “Asian Hater.” Prosecutors charged Machado with sending the threat based on the recipients’ race or ethnicity and interfering with their right to attend a public university (Macavinta, 1998).

The case signaled a new legal development because it signified the first trial regarding online hate crimes. Prosecutor Michael Gennaco said of Machado’s sentencing, “The jury has spoken that a line needs to be drawn in cyberspace. If you cross that line, you’ll be subjected to the same criminal penalties you would be as if you use a telephone or post mail to do these kinds of acts (Macavinta, 1998).” Internet law specialists agree with Gennaco that the Internet is not and should not be treated differently from other communication methods; something posted online carries the same weight as a phone conversation or face-to-face interaction. This means online interactions only give the appearance of anonymity .

Despite the precedent of Machado’s case, many people still mistakenly believe that the Internet will protect them from prosecution. Ask Walter Edward Bagdasarian, who discovered that the government can trace supposedly anonymous posts using IP addresses. U.S. Secret Service agents arrested Bagdasarian, a Southern California man, in 2009  for “posting a racist note to a Yahoo message board in October [2008] expressing displeasure over Barack Obama’s candidacy, and predicting ‘he will have a 50 cal in the head soon (Poulsen, 2009).’” The case exemplifies both the ease with which authorities can and do trace criminal behavior online and their propensity to take such cases seriously.

What does the future hold for Internet legislation? Many say that it will closely mirror that of other media outlets. Cases regarding Internet monopolies, defamation of users, and copyright infringement on message boards and personal websites will continue (Netlitigation). Others argue that Internet regulation should take into account the differences between the use of the Internet and the use of other media; for example, an Arizona radio station that violates broadcasting laws faces trial in Arizona, but where should an Internet podcaster face prosecution? If a user posts information on a community forum, does it now have copyright protection? Does e-mail spam fall under the same regulations as telemarketing? What privacy rights should Internet users have? As the Internet grows and more issues make their way to court, authorities must come to terms with media issues in a constantly changing digital landscape.