Legislating the Internet - The Questionable
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Goldman cited two more Internet-related laws as effective but questionable. Let’s take them in turn.
The No Electronic Theft Act (NET Act) was passed in 1997. It’s actually a modification of the law that deals with criminal copyright infringement. Previously, you broke the law if you infringed on copyright for money. The new phrasing redefines the term “financial gain” to include “receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.”
Why does this make a difference? The law was an attack on the culture of warez traders. These hackers latch onto copyrighted works such as video games or software and trade them with others in the warez community. Money never exchanges hands in these transactions, since warez traders generally believe that “information wants to be free.” That may be all well and good, but it does leave copyright holders in a bad position – and one has to wonder if warez traders would be so free about trading something that was their own original work if they had a chance to profit from it (some would, no doubt, but many others wouldn’t).
Goldman considers the NET Act to be a lousy policy, “most importantly because criminal sanctions do not deter warez traders,” according to Goldman. As with other Internet laws that end up not working out as well as expected, it seems likely that the legislators did not understand the nature of the community they were trying to target. Even so, the law has had a certain amount of success. “Removing warez traders from the Net, one by one, is a crude but ultimately effective method for curtailing warez trading,” Goldman notes.
Another law that can be considered at least a somewhat mixed success is the Anti-Cybersquatting Consumer Protection Act. It was enacted in late 1999 as a response to the myriad of domain names that contained well-known trademarks but were registered by someone other than the trademark holder. This practice, known as “cybersquatting,” was often engaged in with the idea of monetary gain from the domain name. Cybersquatters could stand to profit in a number of ways. They could sell the domain name at a tremendous markup to the true trademark holder; they could attempt to fool Web surfers into thinking the site at the domain was in some way associated with the trademark; or they could simply try to monetize traffic from people typing the trademark into the address bar.
When the Internet Corporation for Assigned Names and Numbers dragged its feet in creating anti-cybersquatting regulations, Congress acted. The important part of the law says that “A person shall be liable in a civil action by the owner of a mark…if, without regard to the goods or services of the parties, that person…has a bad faith intent to profit from that mark…and…registers, traffics in, or uses a domain name that…is identical or confusingly similar to that mark.”
The law has been a boon for trademark holders. It’s also been good news for domain name registrars and registries, because it eliminated them as lawsuit targets for trademark owners (which they had been before the law was enacted). But it has also been used against gripe sites such as “thiscompanysucks.com.” And, as Goldman points out, “the ACPA hasn’t curbed domain name parking, domain tasting, and other AdSense-fueled sites using trademarks or typographical versions of them.” Still, it has accomplished a certain amount of good.
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