E-Commerce Law Week, Issue 366

Politics May Make ICANN Say "ICANN'T" to .xxx Domain
As one way to help curb -- or at least channel -- the spread of pornography online, the Internet Corporation for Assigned Names and Numbers ("ICANN") in June announced the creation of a .xxx domain.  It's a move we likened at the time to creating a virtual black curtain for segregating "adult" web content, the Internet's version of the adult section in the back room of a video store.  But now, groups like the Family Research Council and even some of ICANN's own Government Advisory Committee members are expressing concern about the new domain, fearing that the new domain would increase the amount of Internet pornography.  As a result, Assistant Secretary of Commerce Michael Gallagher asked that a hold be placed on the contract to run the .xxx domain pending further discussion, and ICANN announced a one-month delay in approving the domain.  As this debate is taking place, courts in the U.S. are continuing to struggle with how to assess legal restrictions on Internet pornography, including how to apply local "community standards" to the Internet (as in Nitke v. Gonzales, on which we previously reported) and whether content filters offer a less restrictive alternative to the legal prohibitions of the Child Online Protection Act on content harmful to minors.

Communications, Privacy and the Fight Against Terrorism -- A Tough Recipe for Italian Chefs
The July 7 terrorist attacks on the London subway appear to have produced substantial turmoil in Italy over how to balance the need for effective anti-terrorist measures (particularly in relation to communications data) with respect for citizens' rights to privacy.  Responding in part to threats by Al Qaida against Italy as a result of the Italian presence in Iraq, the Italian government has implemented the Decree Law on Anti-Terror Measures ("the Decree").  The Decree, which was rushed into force on July 31 only days after being approved by the Italian Cabinet, contains a string of measures governing retention of and access to communications traffic data.

Meanwhile, in a somewhat contradictory move, the Italian government has said it will introduce measures to rein in the use of wiretapping.   The Italian government said this month that it would present a bill in September introducing tough limits on wiretapping and longer jail sentences against whoever leaks or publishes transcripts.  Moreover, the Garante per la Protezione Dei Dati Personali ("Garante") officially petitioned the country's telecommunications operators to unveil the methods they use to collect and store data from wiretaps placed on behalf of public authorities.  The security of the data collected from those taps is the responsibility of telephone companies until it is handed over to the organization that requests it.  While laws already exist governing how the taps are carried out, how the information is transcribed and stored, and who may legitimately access the data, a spokesperson for the Garante indicated it was questionable whether these laws were being put into practice by operators.

Europe Adds Fuel to the Grokster Fire
Less than two weeks after file-sharers and peer-to-peer software developers got singed by the Supreme Court's decision in MGM Studios, Inc. v. Grokster, Ltd., the European Commission added fuel to the fire with its proposed directive and framework decision on copyright infringement.  The EC proposal would criminalize not only direct copyright infringement, but also "attempting, aiding or abetting and inciting" such infringement.  So while the EU has not gone as far as the U.S. in extending the terms of some copyrights (in 1998, the U.S. extended corporate copyrights to 95 years, to the benefit of big content owners), EU copyright enforcement rules may become even stricter than those in the land of the free and the home of the RIAA.

In Grokster, which involved peer-to-peer file sharing software that had been used to share copyrighted music and video files, the Supreme Court held that "one who disributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."  But the EC’s proposal goes even further than Grokster.  For while Grokster involved potential civil liability for contributory infringement, the proposed EU directive would make such indirect copyright infringement a criminal offense.

Knowledge: The "Missing" Link in Linking Liability
When does a hyperlink violate copyright law?  Traditionally, the answer to that question has been a murky one.  But a few recent court decisions suggest that judges in several countries may be gradually moving toward a consensus:  a hyperlink violates copyright law when the linker knows that the linked-to site contains copyright-infringing content.  Most recently, a German appeals court found that a hyperlink on an online news site violated German copyright law because it sent users to the homepage of a software vendor whose product -- as the news service was aware -- could be used to circumvent copyright-protection mechanisms on DVDs. (BMG Records GmbH v. Heise Zeitschriften Verlag (July 28, 2005).)  Upholding a lower court’s decision, the Intermediate Court of Appeals of Munich ruled that the hyperlink made Heise Online liable as "an aide and abettor" of “unlawful acts.”   But the court refused to find Heise liable for merely reporting about the software in question, as the German music industry had wanted.  But that's not all.  If the recent European Commission proposal (see item above) to criminalize contributory copyright infringement is adopted, hyperlinkers like Heise Online might one day be prosecuted for a criminal offense.

Questions and comments about E-Commerce Law Week are always welcome. Please send your feedback to Sally Albertazzie.