From Cornell International Affairs Review VOL. 6 NO. 2
Legal Dilemmas in the Digital Age
The analysis thus far shows that there are three steps in any cyberspace transaction: one user initiates the transaction by posting material, an ISP or file-sharing site transmits the information, and the end user downloads the material.41 As discussed previously, the Napster case set an early precedent in the United States that a transmitting site is not liable for copyright infringement. Similarly, the SOCAN case set a precedent in Canada that the ISP is not at fault either.
While international law has yet to offer a clear guidelines on the matter, the discussed case examples demonstrate the approaches adopted by forward-thinking and influential nations in the realm of cyberspace that the transmitting institution (whether an individual, a nation or a corporation) should not be held liable for cyber theft as long as that institution promotes fair use in its services and does not seek to intentionally commit copyright infringement.
If file sharing sites and ISPs are consistently not held liable for the copyrights that are violated on their watch, then it could be argued that WikiLeaks and The New York Times in The Pentagon Papers case should not be legally liable under U.S. law for the information they transmitted either. WikiLeaks essentially acts as an ISP of political information and claims good faith in attempting to expose political corruption. The site does not create the information that it posts, just as Napster does not create illegal music files. It only transmits the information into the public sphere where at least the information is available.
The UN might view this as simple practice of human rights, as defined in Article 19. But while certain nations such as the U.S. and Canada support the human rights to free speech over the argument for national security, the amorphous nature of cyberspace still requires a system to adjudicate potential dilemmas which may arise between other nations, as well as protect individuals and intellectual property rights. The parties of the 166 nations at the Berne Convention suggest that this desire to protect IPP is fairly universal, even among developing nations.
A solution to these issues would be a governing cyberspace body. Institutions such as the European Union and the World Trade Organization are examples of a gradual international shift for nations to cede power to larger, specified governing institutions in certain situations.42 An international body to govern cyberspace could help to standardize regulations, boost implementation, and aid international cooperation to address cyber crime. There is unequivocally one common, overarching theme in the cyberspace cases discussed thus far: disputes are on the rise around the world, but as of yet there is no concrete, unified system for international law-making and law enforcement.
Without actively protecting from wrongdoings—which could be as minor as a copyright violation or as major as cyber warfare—states may open themselves to harm just as if they had chosen not to protect the physical borders of their nations. In the same year that Napster emerged, the 1999 Harvard Law Review asserts that, "Internet regulations are necessary to protect state sovereignty" for this very reason.43 In order to maintain the legitimate freedom of press and freedom of expression in the international sphere, a system must be put in place to ensure that cyberspace remains free.
Treaties such as the UN Universal Declaration for Human Rights and the Berne Convention put forward by the United Nations, WIPO and UNESCO offer a strong framework upon which a more formal governing body can be constructed. One proposed solution is to organize national state Internet servers that all answer to a collective, regulated international server overlooked by an international tribunal. One power of such a tribunal proposed by UNESCO would be to unify Internet domain names and restrict usage of the sites found guilty of cyber crime.44 Perhaps even superinjunctions to prevent leaks of confidential material would prove useful.45 This way, violators would be more likely to be held accountable for leaking classified information. Essentially, the Internet needs to be unified in order to create a structure that allows for order in cyberspace law.
Arguments against an international governing body for cyberspace generally take the position that the Internet is a unique system that should be left to govern itself, because it is too vast and intangible to ever effectively control. The fallacy of this argument is that the Internet provides too much opportunity for abuse. Governments unjustifiably censor information contrary to the desire of the United Nations; file-sharing sites infringe upon copyrights and intellectual property laws; and the current system discourages the freedom of speech.
However, practical obstacles to the construction of an international governing body remain. There are apparent differences between the Internet censorship policies of many nations at present. This is an especially pertinent issue because cyberspace has no boundaries and has recently proven to interact between the physical boundaries of differing nations. Despite these challenges, the combination of rapidly developing cyberspace and increasing globalization has brought new urgency to addressing concerns about intellectual property and freedom of speech within an international legal framework.46
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