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opinion.gif (236 bytes)Opinion - A question of liability -
(January 2000)
Ian Murphy highlights some of the legal issues raised by the Web.

We have all become accustomed to the fact that the Internet is awash with stuff that is distributed without the knowledge of the copyright holder, and most people have downloaded programs or utilities and used them in breach of the software agreement. One of the most widely abused programs in this way is WinZip. Most people download the latest version, yet only a fraction of one percent ever bothers to actually licence it. Others put up with the nagging notice that tells them they are over the trial period and should licence the software. Because the vendors choose not to make the software cease working at that point, people assume that it is all right to keep using it. Just as serious is the distribution of television materials over the Internet. We are constantly exposed to adverts from the film, video and television market telling us what to do if we suspect something is a copy, and we often see trading standards programs where officers raid markets and boot fairs, then revel in the amount of material seized.

Beam me up

Recently, someone decided to package up complete episodes of Star Trek and transmit them through a public newsgroup. Having been on the receiving end of several hundred MB of incoming mail, I decided to inform my service provider so that it could reasonably take the newsgroup offline or warn its customers of the problem and potential on-line time. Demon told me that it could do nothing about it as it was in a public newsgroup and despite being told that it was copyright infringed material, it was down to individuals to block the incoming messages. Unfortunately, unless you received the messages you couldn’t block them as Demon wouldn’t warn its customers. The same attitude to a major breach of copyright was exhibited by several other ISPs I contacted

To make matters worse, trying to inform Paramount in the UK showed that they seem to care very little. After spending a day being passed from one office to another, I was eventually told that Paramount, UK had nobody who could deal with this issue. They didn’t even know whom I should contact in the USA to deal with it. Having obtained a US number from a colleague, I was stunned to find that no one there seemed to know what to do. Almost two weeks on from the initial incident I am left under no illusions about how little Paramount seems to care about copyright infringement. Whilst they can obviously afford to be so cavalier about being ripped off, small businesses cannot and nobody is being helped by Paramount’s attitude.

Court in the act

My final issue this month should strike fear into the heart of every Webmaster in the land. On the 10th November 1999 the appeal court ruled that downloading child pornography from the Internet was the equivalent of creating pseudo photographs. Anyone doing so was just as guilty of possession as they would have been if they held a glossy print. The ruling is exceptionally good news for moral rights and strengthens the law in this area but it does open up a more complex issue. When the head of CompuServe Germany was successfully prosecuted over the holding of newsgroups containing obscene material on the company servers, many thought this would soon be appealed and overturned. It has never been so and with this ruling in the UK, material distributed via newsgroups and cached on corporate and ISP’s servers may well be deemed to be the responsibility of the company.

Almost certainly the responsibility will fall to the Webmaster to police this and they are likely to be the person who could be prosecuted. But what happens when the information is sent unsolicited to an email address? If I download my email am I guilty of committing an offence if someone maliciously sends me offensive material? To whom should I report this offence? What is the responsibility of my ISP or worse, my corporate IT department if it is sent to me at work? Until the CompuServe Germany ruling, it was assumed that email and newsgroups would be treated in the same way as telephones and standard postage where the carrier cannot be held responsible. The current move to harmonise European law may well remove that defence and corporate Webmasters now need to urgently review their policies and press the government for clearer guidelines.

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