NEW YORK -- Sarah Vaughan sang at the Blue Note. So did Johnny
Cash. But while Vaughan was in New York for her performance, Cash
did his gig in Columbia, Mo., at the nation's other Blue Note.
And while the world of jazz, blues and rock can accommodate two
Blue Notes, it appears that the Internet, arguably, cannot. Earlier
this month, lawyers for the homonymous nightclubs met at the 2nd
Circuit Court of Appeals in New York, in a feud over whether
cyberspace is big enough for both of them.
The clash of the dueling Blue Notes has become a test case in the
United States for an issue currently being debated by lawyers,
academicians, legislators, and regulators in the United States and
from Germany to Malaysia: whether a person or business on the
Internet falls under the laws of some, all, or any of the
jurisdictions from which that Internet site can be reached.
"The heart of the problem is that the Internet is inherently
indifferent to geographical boundaries, while the legal systems of
the world are built on geographical boundaries," said Henry H.
Perritt Jr., a professor at Villanova University School of Law.
The result, in the view of Jane C. Ginsburg, a professor at
Columbia University's School of Law, is that "if you use the
as a marketing tool, that can really subject you to jurisdiction
anywhere that you can get customers," particularly if the customers
can get in touch with the Web site and buy or sell or negotiate with
people at the other end.
Richard King founded the Blue Note in Missouri in 1980, five years
before the owners of New York City's Blue Note obtained a federal
trademark for the name. King, whose clientele is drawn largely from
the University of Missouri campus, ended up with the right to use
trade name locally in Missouri -- what is known in trademark law as
Last year, when his young employees designed a World Wide Web page
for his club, King's reaction was, "Oh, wow. So I don't have to go
to campus every day and put up my posters," he said in a recent
interview. Instead of spending time tacking up posters, however, he
ended up receiving a summons for a case in the U.S. district court
Manhattan. King has acquired a role in one of the first wave of
cases that, bit by bit, will try to reconcile old legal concepts
the new frontier of cyberspace.
Governments' efforts to regulate Internet information have been
most visible in cases of pornography, gambling, and hate speech,
Bavaria's 1995 investigation of CompuServe over material on the on-
line service that was said to violate restrictions on pornography.
(CompuServe blocked most of the material temporarily.) However, as
the Blue Note case illustrates, one need not be a pornographer,
gambler, or access provider to come within reach of distant
jurisdictions. "There is nothing local in cyberspace," said Nicholas
Negroponte, director and co-founder of the MIT Media Laboratory. "I
have my home, my neighborhood, my city, county, state, country, etc.
in cyberspace, I am in it or not in it."
Some countries have taken extreme measures. China, for example,
blocked an estimated 100 Internet sites last year and required
Internet service providers to register with the government and route
international links through a government agency.
But the limited ability of China or any other country to control
incoming data may evaporate altogether. For while the information
that flows through the Internet now travels via telephone, and thus
can be somewhat controlled by local authorities, new technology may
short-circuit those controls. Negroponte believes that if plans to
launch low-orbiting satellites are realized, "My communications
is worldwide, with or without national phone systems."
Meanwhile, back on Earth, states and countries and their courts
still have the authority to try to enforce their laws relative to
Internet. That can spell trouble for businesses. …