Playing catch up?
Wednesday, March 17, 2010 at 9:00AM Is the law keeping up with social media and web 2.0 (or even web 1.0)?
I have been looking recently at the issue of companies using their competitors' names in meta tags to divert traffic to their site (see the Search Engine Watch site summary of meta tag lawsuits).
In England we have a situation where the Courts still haven't clarified the legal position much beyond the Court of Appeal decision in Reed v Reed. It seems unlikely that they ever will given that Google no longer pays attention to keywords meta tags and the focus has moved on to litigation about Google Adwords.
This isn't an isolated example; even the position on liability of hyperlinkers for breach of copyright isn't particularly clear.
The E-Commerce Directive deliberately fails to cover legal liability for hyperlinks. In theory, the European Commission are meant to review the directive every 2 years from 2003 with particular reference to whether additional protection for hyperlinkers and/or a "takedown" notice procedure is appropriate, but as yet this hasn't led to any real clarification.
Effectively in the UK we are left relying on various arguments about whether a hyperlink can be classified as an instrument for making of an infringing copy (potentially giving rise to liability under the Copyright, Designs and Patents Act 1988).
In the meantime, the way that hyperlinks are used is changing (think short links tweeted and retweeted on Twitter with no anchor text and possibly not even a description of who or what is linked to).
A common law system should, in theory, be able to adapt to changes like this as quickly as new cases and precedent can be put place by the Courts, but the reality is that many of these areas are governed by domestic and/or European legislation which can (at most) only be interpreted by the Courts and not amended.
On top of this we have the government's attempts to force through the Digital Economy Bill before the end of the current Parliament to implement various controversial proposals such as disconnection on suspicion of copyright infringement (widely condemned by the Open Rights Group and others).
All of this makes me wonder whether it is actually possible for legislation to keep pace with the development of the Internet or whether the law makers are doomed to playing catch up.
What do you think? Is the current system flexible and adaptable enough to cope… or in an ideal world should we be thinking about changing or even replacing it?
Peninsulawyer
I am interested by the comment left by Mark Bower of Connectegrity that legal bloggers in the UK don't really seem to have picked up on the Digital Economy Bill and its implications.
I hadn't really noticed this, but having looked back through my RSS feeds it does seem to be the case.
As Mark mentioned in his comment there are a number of concerns with the bill:-
- the "three strikes" / disconnection without trial rules which can potentially lead to users being disconnected on suspiction of copyright infringement
- the controversial rules to allow rightsholders to require ISPs to take down or block entire sites upon being given notice of infringing material (with potential legal costs penalties in the event that they fail to do so and are subsequently found to have been in the wrong)
- liability and disconnection for providers of open WIFI networks (coffee shops, bars, libraries etc.) if their users are found to have infringed copyright
- the "orphan works" provisions (of particular concern to photographers) which would allow works to be used without reference to copyright protection if a "sufficient search" (which is not defined) does not reveal who owns the copyright. This is particularly worrying as it is very difficult to ensure that attribution information / metadata remains part of the image to avoid it being orphaned.
This is only very brief summary typed at some speed - the Open Rights Group site has more details of the proposals.
There is a new service on the 38 Degrees site which allows you to write to your local MP to express concern at these issues and the way that the bill is being pushed through parliament (effectively the government want to use the "wash-up" procedure to pass it with little or no debate before the end of the current parliament).
I have done this already and judging by the traffic I have seen on Twitter so have many others. If you are concerned about the effects of the bill on internet users and would like to see it properly debated then please do the same.
Reader Comments (1)
I am intrigued, that of the law blogs I follow at least, this is probably the first reference to the Digital Economy bill. Given that it is so controversial, I would have thought to hear more opinion on it from legal bloggers.
If I understand the bill correctly, it allows rights holders to assume the consumer is guilty until they can prove otherwise. This to me is a very unsatisfactory state of affairs.