If You're on the Internet, Whose Laws Govern Your Behavior?
Geanne Rosenberg N. Y. Times News Service, THE JOURNAL RECORD
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 Internet 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 the trade name locally in Missouri -- what is known in trademark law as a "geographical carve-out." 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 in 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 with the new frontier of cyberspace. Governments' efforts to regulate Internet information have been most visible in cases of pornography, gambling, and hate speech, like 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 reach 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 the Internet. That can spell trouble for businesses. …