The next frontier of Internet legal battles

Crowell & Moring partner Michael Songer outlines the major legal trends in the past two decades (think P2P and cybersquatting) and outlines what we can expect.

Editors' note: This is a guest post. See Michael Songer's bio below.

Throughout the 1990s and 2000s, we have seen a number of well-known legal disputes: legality of peer-to-peer services such as Napster and Grokster, cybersquatting, laws (trying) to regulate porn, even trying to use the MTV domain name.

As we head into 2010 and beyond, here are some legal issues that are likely to careen through cyberspace in the next few years.

1. Lawsuits related to stupid/silly conduct shown on the Internet.
The assimilation of broadband brought with it those "viral videos": Star Wars Kid, Numa Numa Dance, Aleksey "Impossible is Nothing" Vayner, and the like. The latest fad seems to be taking videos of crude behavior and posting it for all to see--think of the two girls bathing in the Kentucky Fried Chicken kitchen, or the Domino's employees creating a "special" meal for a customer.

Someone will be offended, someone will sue. In some cases, the lawsuits make sense (violating health codes for the KFC and Domino's videos); in other cases, they don't (Star Wars Kid sued, and Aleksey Varner threatened a suit, though the legal basis for these is shaky).

Expect to see a rise in these types of lawsuits related to conduct shown on the Internet and calls for Congress to do something. What, exactly, can be done is less clear; it's hard for the legal system to regulate conduct that, while not breaking the law, is merely stupid. But that won't stop people from trying and lawyers from garnering headlines.

2. Lawsuits related to social media.
The last few years have seen a number of lawsuits brought against Facebook and MySpace for conduct occurring on those sites--think of the Megan Meier case (Megan Meier was the teenager who committed suicide after a woman pretended to be her friend, and then turned on her).

The government prosecuted the offender in that case, though the legal basis for the prosecution is less than clear, and an appeal is under way. And there have been calls for regulating what you can and cannot do (no sock puppets!) on these sites.

These are likely to continue for the simple reason that more and more people are using these new technologies. With that increased use comes the increase in libelous statements, crude conduct, even illegal activity (think prostitutes using Craigslist to advertise their services).

I'm sure--if it hasn't already happened--that someone will sue over some "tweet" in the next year. Expect more of these lawsuits.

3. The next battle in the copyright wars.
The $1 billion battle between Google's YouTube and Viacom is churning away, with no end in sight. At issue is the liability of sites like YouTube for hosting content posted by others.

Like the earlier Napster decision, this case has major ramifications for content on the Internet. However, just as Napster begat legal file sharing (iTunes), consumer demand might work out a solution faster than the courts.

YouTube recently announced a deal with Sony to stream movies, with television shows on the horizon. But whatever the final outcome of the YouTube lawsuit, nagging copyright issues associated with liability and fair use of content uploaded into social sites will not go away.

Recently, the Associated Press threatened to sue aggregators and clamp down on the use of their articles, and others are sure to follow this path. Expect more content owners to use copyright lawsuits to shape what we view and read on the Internet.

4. Blogger liability for the comment section.
Currently, bloggers cannot be sued for libelous statements posted in the comment section of their blogs. Something called "section 230" (after the particular legal code) immunizes bloggers from legal harm caused by another's comments (bloggers, however, can be sued for libelous statements that they post).

This immunity was enacted in the mid-'90s and was designed to protect the "publishers" on the Internet at that time: the AOLs, CompuServes, and ISPs that enabled Internet access. The law never contemplated the explosion of bloggers, MySpace authors, and other "social publishers." And the law never contemplated the accompanying (usually anonymous) comments to those posts, as well as the ill will associated with the all-too-common flame wars.

Several courts have expressed dissatisfaction with the blogger immunity--particularly when the blogger knows that the comments are defamatory or wrong. Expect more challenges to this immunity, and perhaps calls for Congress to roll back section 230.

5. The taxman cometh.
Anyone who has read a phone bill has seen a dizzying array of taxes, assessments, and special charges. Your Internet access is free from such taxes until at least 2014, due to Congress and the Internet Tax Freedom Act. The law, passed in 1998 and extended by the Bush administration, prohibits federal, state, and local governments from taxing access to the Internet, and it bans "Internet-only" taxes such as bandwidth or e-mail taxes.

States remain free to tax sales on the Internet.) Of course, that was before the current economic crisis, and the general rise in taxes on everything from mobile phones to cigarettes. A bill has been introduced to make the tax ban permanent, but nothing is "forever" with Congress. Expect to see calls for Congress to tax these areas before 2014.

Of course, given a steady pace of new Internet technologies that allow different ways for humans to interact with one another, more unique, complex, and downright strange events will occur that give rise to legal disputes. (Think "upskirt" cams.)

The legal system is flexible and has dealt with much over the last 10 years, in many instances driving Internet growth in ways both good and bad. The next 10 years promise much of the same.

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