Young businesses have died on the vine while waiting for legal disputes to crawl through the courts. "Information technology companies, especially, could be out of business by the time something reaches a jury," said David Zurvalec, an attorney and vice president of industrial relations at the Michigan Manufacturers Association in Lansing, Mich.
Hoping to solve this problem, Michigan lawmakers have proposed a new legal institution that operates at Internet speed -- a "cyber court" that harnesses technology to propel lawsuits to resolution. Michigans Gov. John Engler unveiled the idea in his State of the State address last January. A bill to establish the court is now moving through the state legislature.
If the bill becomes law, a software firm in Ann Arbor, Mich., and a subcontractor in Dallas will be able to argue a case before a judge in Lansing without climbing on a plane. Disputants, their attorneys and the judge will meet through videoconferences; theyll share evidence over the Internet; and suits that currently take 18 months should become a thing of the past.
"Our intent would be to create a rocket docket that can move these cases, depending on their complexity, within 90 to 180 days," said Rep. Marc Shulman of West Bloomfield, who introduced the cyber court bill in Michigans House of Representatives earlier this year.
According to the legislation, the cyber court will be available for business disputes involving more than $25,000. The presiding judge will render a decision without a jury. Cases will be argued in the cyber court only if both parties agree to use it rather than the traditional circuit court system.
The bill calls for cyber court cases to be heard via video or audio conferencing, the Internet and possibly other means. When feasible, the court will broadcast its proceedings over the Internet.
"The parties would appear from their own remote, camera-equipped computers, or potentially from a public terminal that could be located in a Kinkos or somewhere else," Shulman said. They would use teleconferencing for the initial hearing, any meetings required during the discovery phase, settlement conferences and, if the case went that far, for the trial and to hear the judges decision. Attorneys could distribute pleadings, exhibits and other documents via e-mail, and witnesses could testify over a video link.
Cases would move quickly because judges wouldnt need to set court dates far in advance to accommodate out-of-town participants with busy schedules. Participants wouldnt have to cool their heels while the judge heard other cases scheduled on the same day. Also, Shulman said, since participation would be voluntary, parties would abide by the rules of the cyber court rather than drag out the proceedings to gain some sort of advantage.
Business Magnet
Besides making it easier for companies to settle lawsuits in Michigan, supporters hope the cyber court will send an encouraging message to businesses, especially technology firms, shopping for a home. "We see ourselves as a high-tech state and we want others to see us that way as well. The cyber court shows how seriously Michigan takes its technological infrastructure," said Joan Trusty, regional director of government affairs at EDS in Troy, Mich. Trusty is president of Automation Alley, a consortium of more than 300 high-tech businesses in Michigans Oakland County.
"Weve reached the point where signatures are done online, contracts are done online -- theres an awful lot of commerce done online," said Barry Cargill, vice president for government relations at the Small Business Association of Michigan, based in Lansing. Companies that are comfortable using advanced technologies in business transactions might see the cyber court as a good reason to locate in Michigan, he said.
Caddy or Chevy?
While the cyber court bill makes its way through the legislature, many details remain to be worked out. Members of the states bar association and representatives of its Supreme Court have formed a group to work on some of those details before the legislation comes before the full House. Subjects theyre tackling include how judges will be chosen, how the court will be administered and what issues of security and privacy need to be addressed, Shulman said.
The state also needs to decide exactly what technologies to deploy. "The question at this point is how much money do we want to spend?" Shulman said. "Do you want the Cadillac right now, or the Chevy?"
The legislation does not spell out a budget for the new court.
The cyber court will likely open for business in a room designed for that purpose in the states new Hall of Justice, due to open in Lansing in late 2002. Michigan could eventually add other high-tech courtrooms elsewhere in the state. "Were going to begin with one locale right now and see how that works, because this is a model that hasnt been tested anywhere yet," Shulman said.
Talking Heads
Michigan may become one of the first states to settle real legal disputes in cyberspace, but the model has already been tested in a laboratory setting -- Courtroom 21, operated by the College of William and Mary in Williamsburg, Va.
Courtroom 21 is a showcase for courtroom technologies and a center for experimental work in that field. "Our expertise is in the use of remote participants," said Fredric Lederer, chancellor professor of law at the college and director of Courtroom 21. "In the last few months - weve been doing some work in that area, with [Michigans] cyber court in mind."
A mock criminal trial conducted in Courtroom 21 last April employed the same kinds of technologies Michigan hopes to employ. The case involved an international terrorist conspiracy, and one of the attorneys on the prosecution team took part in the trial from the United Kingdom. "He was in a 40-inch plasma screen installed in the courtroom at the counsel table, right next to co-counsel," Lederer said. At one point, the onscreen British barrister questioned the government’s chief witness, who appeared live from Canberra, Australia, in a 50-inch plasma display set up behind the witness stand.
One question Courtroom 21 has yet to resolve is how to share physical evidence, since scientists have not yet learned how to beam up three-dimensional objects through the Internet. The court recently dealt with that issue in a fictional dispute in which a U.K.-based mineral water company claimed a U.S. firm had copied its bottle and label.
Disputants on both sides of the Atlantic received samples of both bottles, Lederer said. Although this is a low-tech solution, the mock trial also took advantage of images transmitted from a graphics program at the University of Leeds in the U.K. "At one point we actually sank one bottle into the other electronically, so you could see one bottle inside the other," making similarities and differences immediately clear, he said.
Surprising Pioneers
Though they have a pretty clear picture of how the cyber court would work, proponents say they can’t yet predict how much traffic it would draw. "Only time will tell how much this will be used. But if you dont try to set up a structure, youll never know," said Zurvalec.
Another key question is how well the cyber court would go over with lawyers. Attorneys, as a group, have generally been slow to embrace new technologies.
Lederer pointed out that as more students graduate from law programs like William and Marys, the pool of tech-savvy lawyers will gradually increase. Also, attorneys who handle cases in the cyber court will have no choice but to use its equipment.
"Some lawyers are indeed very cautious," Lederer observed. "But many lawyers are surprising pioneers in the area of technology. And others are guided by the duty to the client and the nature of the adversary system. No one likes to lose. If theres a possibility that technology will be a significant factor on the other side, people tend to look at it."
The US Supreme Court is taking a pass on a set of cyber bullying cases; it's a big disappointment for those trying to fight off the online attacks.
The Court decided not to take up one case out of West Virginia; it involved a web page that alleged another student had a sexually transmitted disease. The court decided to let the suspension of the student who created it—stand.
Another case came out of Pennsylvania; two students wrote parodies about their principals on MySpace. The court stayed out of the rulings that said schools couldn’t discipline the two students.
As the courts step away, the problem of cyber bullying is continuing to plague students all across the nation.
It’s a social media virus that's infecting our youth. “We asked kids how many people have been bullied online through text and the majority raised their hands,” says Hanford Chief Investigator Karl Anderson. “Then we asked how many told and adult—there were very few.”
It's a problem the Supreme Court is leaving to the schools and a decision that is disappointing the National School Board Association who says, “We've missed the opportunity to really clarify for school districts what their responsibility and authority is," said Francisco Negron, general counsel of the National School Boards Association. "This is one of those cases where the law is simply lagging behind the times."
The law might be lagging but cyber bullying is growing. “Every case is different from the minute 'I don't like you, you're ugly' to trying to destroy someone's reputation,” says Anderson. He gives cyber bullying classes at Pioneer Middle School. It's just one of thousands of schools trying to prevent the painful scars words can leave behind. “Traditional bullying happened on a playground, someone pushed someone down; it stayed at school two or three people saw it,” says Anderson. Now, it's become a phenomenon—texts, posts—it’s a virus that's spreading and schools can only do so much. “We can't look at students cell phones and we can’t get on their Facebook page or twitter page,” says Pioneer’s Principal Greg Henry.
If bullying happens on kid’s route to campus, the school could step in; if it happens outside of school, parents or students have to report it. The situation has to disrupt the education process. “It’s also a grey area,” says Henry.
It's a fine line the Supreme Court—at this point—won't define. “I do think the Supreme Court might have taken the easy way out but it’s a grey area and it’s going to grow from here,” says Henry.
Many parents may monitor their children's social media activity but do you have the right page? During cyber bullying presentations investigators say numerous kids admit to having a fake profile for their parents and a real one for themselves.
Christina Lusby Reporting.
CYBER SQUATING
The importance of cyber-squatting to corporations has been growing since the creation of the ACPA and will continue to grow as time goes on. We predict that cyber squatting will be an issue involved in e-commerce law in the future although the complainant may shift from big businesses to smaller businesses based on recent court decisions. In addition, there are various amendments that could be made to the current cyber squatting acts in order to increase their effectiveness as well as fairness. These changes will need to occur as the Internet expands and online businesses continue to flourish.
There are many current cases which challenge both the powerful individuals’ and businesses’ right to a domain name, as well as challenging the individual’s right to hold the domain for personal use. Earlier this month, a case was tried in the U.S. Court of Appeals in regards to the use of the domain “fallwell.com” as a critical site to the preaching of televangelist Jerry Falwell. Jerry Falwell accused the owner of this site of infringing on trademarks and cyber squatting but his claims were rejected when the courts decided that the site could not be confused with Jerry Falwell’s official domain “falwell.com” due to differences in both appearance and content [20].
This case is a major victory for individuals who wish to criticize public figures or organizations through the use of the Internet. In the future, granted that the individuals who own and operate the domain have no intent to profit from its use, there is very slim chance that a court could find in favor of either a powerful individual or a large corporation. This lack of “bad faith” intent involved with the operation of a site is used to protect individuals from being bullied out of cyberspace by large businesses.
Bad Faith in the Future
“Bad faith” has been used as a defense for many small businesses and has provided them with a layer of security when their use of the domain does not infringe upon the larger company’s trademark. Non-profit use is one of the strongest defenses and its inclusion in the ACPA is one of the greatest strengths of the act. Many other aspects of the ACPA allow big businesses to push smaller ones out of the Internet market and simply having larger exposure and a larger name has allowed them to bully others out of the e-commerce market [19].
The ability of large companies to force smaller ones to give up domain rights is being challenged by many court cases and the victories of some of these small businesses is paving the way for others in the future. These results are also being looked at in many states as they look to clarify and improve the cyber squatting laws. This is because as we stand now, the Internet may not be able to survive only on the acts which have been passed in the last few years. With the Internet rapidly expanding into new domains, such as “.biz”, “.edu”, “.in”, and many others, the chances of registering common domains increases greatly. Along with this, many individuals and companies are becoming more educated on the technical aspects of cyber squatting. This is only increasing the complicated nature of cases and making it harder for courts to come to a decision regarding the rightful ownership of a domain name.
Changes
Problems can be dealt with through the expansion of the acts that currently deal with cyber squatting. The ACPA, in conjunction with the ICANN, has power over the domain names that are registered and can influence the decisions made in regards to them. By enhancing the ACPA with more individual-friendly sanctions, the government can help to protect the rights of an individual to own and operate a site that may be common to a corporation’s trademark. In addition to this, the ICANN and other such organizations have the authority to sell the rights to a domain to anyone who pays for it, but also have gained the power to transfer these rights to another party if they deem fit. These decisions can be appealed and taken to court; however, a failure to promptly file an appeal with the domain registrar can lead to a loss in court no matter what arguments are brought about [20].
In order to prevent these organizations from unfairly dictating the law of the Internet, legislation must be passed in order to amend the ACPA in order to correct the flaws that have been found in recent court hearings. This will undoubtedly gather much opposition from large businesses and influential individuals who wish to protect their own rights without concerning the right of the common individual. These laws in the United States act to override the laws of foreign nations and also act to undermine the authority of international efforts such as ICANN in order to avoid complex and costly international lawsuits. The ACPA has received much opposition and typically gains complaints including such grounds as legislative overkill, free speech concerns, and reverse domain hijacking. The future of the ACPA holds legal ramifications that will affect not only U.S. citizens, but also foreign citizens and businesses. This holds true in the case of the International Olympic Committee which has used the ACPA as a weapon in order to prevent the use of domains remotely associated with the Olympics [21].
Cyber squatting has been an active threat since the early 1990’s and has increased in severity ever since. The prevention of cyber squatting revolves mainly around two acts, the UDRP and the ACPA. The UDRP was adopted by ICANN in order to provide a mechanism for trademark holders to obtain domain names from cyber squatters. The UDRP states that before a domain name registrar will cancel, suspend, or transfer a domain name that is the subject of a trademark-based dispute, it must have an agreement signed by the parties, a court order, or an arbitration award. The development of the UDRP created a "cyber arbitration" procedure to quickly resolve domain name ownership disputes that involve trademarks. All owners of “.com”, “.net”, and “.org” domain names are subject to the UDRP by virtue of the registration agreements at the time of acquiring their domain names.
The ACPA is a valuable tool intended to protect the infringement of trademarks online and to protect the credibility of a company through the protection of their name as a domain. However, it is also a weapon used by corporations in order to force smaller businesses out of the e-commerce market. For this reason, the ACPA must be modified in order to account for some of the unfair court cases which have been decided in the past years. The rights of the individual must be protected and as it currently stands, courts have been favoring the businesses with the largest name and largest pockets regardless of the intent of the individual who owns the domain.
Both of these systems have their advantages, but they must be used properly in order to achieve the desired result. The UDRP provides a method for quick resolution of a dispute whereas the ACPA allows for an extended legal battle with the potential of large monetary settlements being awarded. However, both systems help to provide security and structure to the complicated and widespread problem of cyber squatting. These acts, along with the legal system, are the only protection available to those who wish to defend themselves from cyber squatters.
Since cyber squatting is going to shift from larger businesses to small businesses in the future, modifications to the cyber squatting acts will need to be made in order to increase protection. The ACPA will need to be modified to protect individuals who own a cite similar to a corporation's trademark because currently the act favors big businesses. Cyber squatting problems are going to continue to develop because of the rapid growth and expansion of the Internet. The issue cannot simply be ignored or else it may hurt the economy. Its important to learn from the victims of cyber squatting so we can prepare ahead of time for the issues to come.
References
[1] “Trademarks.” Nolo. <www.nolo.com>.
[2] e-Commerce Law. Issues for Business. John Bagby. West Legal Studies in Business, Canada (2003)
[3] "Anticybersquatting Consumer Protection Act." Wikipedia. 4 Nov. 2005 <http://en.wikipedia.org/wiki/Anticybersquatting_Consumer_Protection_Act>.
[4] "Cybersquatting." Wikipedia. 4 Nov. 2005 <http://en.wikipedia.org/wiki/Cybersquatting>.
[5] "Domain Name Disputes." Business, Internet, e-Commerce, & Domain Name Law. KEYT Law. 5 Nov. 2005 <http://www.keytlaw.com/urls/acpa.htm#What%20Must%20a%20Mark%20O wner%20Prove>.
[6] "Electronics Boutique Holdings Corp. v. Zuccarini." Business, Internet, e-Commerce, & Domain Name Law. KEYT Law. 5 Nov. 2005 <http://www.keytlaw.com/Cases/electronic.htm>.
[7] "ICANN." Wikipedia. 4 Nov. 2005 <http://en.wikipedia.org/wiki/ICANN>.
[8] "Evaluating the Uniform Domain Name." Harvard Law. 05 Nov. 2005 <http://cyber.law.harvard.edu/icann/pressingissues2000/briefingbook/udrp-review.html>.
[9] General Information. World Intellectual Property Organization. 30 Oct. 2005 <http://www.wipo.int/about-wipo/en/gib.htm#P152_21309>.
[10] "Cybersquatting cases increase again." Legal Media Group (2005). 30 Oct. 2005 <http://www.legalmediagroup.com/news/print.asp?SID=15124&CH>.
[11] Sporty's Farm, L.L.C. v. Sportsman's Mkt., Inc. 202 F.3d 489. No. 98-7452. US Court of Appeals Second Circuit. 2000. Online. LexisNexis Academic. (30 October 2005).
[12] Virtual Works, Inc. v. Volkswagen of Am., Inc. 238 F.3d 264. No. 00-1356. US Court of Appeals Fourth Circuit. 2001. Online. LexisNexis Academic. (30 October 2005).
[13] Chatam Int'l Inc.v. Bodum, Inc. 40 Fed. Appx. 685. No: 01-3422. US Court of Appeals Third Circuit. 2002. Online. LexisNexis Academic. (30 October 2005).
[14] Mattel, Inc. v. Adventure Apparel. 00 Civ. 4085. US Court for the Southern District of New York. 2001. Online. LexisNexis Academic. (30 October 2005).
[15] Shields v. Zuccarini. 254 F.3d 476. No.00-2236. US Court of Appeals Third Circuit. 2001. Online. LexisNexis Academic. (30 October 2005).
[16] “Anticybersquatting Consumer Protection Act vs. Uniform Dispute Resolution Policy.” Asmus, Scott J. and Kaji, Reiko. Copyright 2004, Maine and Asmus. <http://www.maineandasmus.com/publications/trademark-articles/acpa-udrp.htm>.
[17] “Domain-Name Registrations and Online Trademark Infringement.” Kitts, Kristina Tung and Caditz, Cindy L. September 2002. <http://www.wsba.org/media/publications/barnews/archives/2002/sep-02-domain.htm>.
[18] Domain Names and Cybersquatting. “Cybersquatting Cases.” Mitchell, Karyn and Stover, Chad. March 2003. <http://www.unc.edu/courses/2003spring /law/357c/001/projects/karyn/domainnames/ cybersquatting_cases.htm>.
[19] Ramlall, Vishva V. “U.S. Anticybersquatting Consumer Protection Act.” 29 Oct. 2005. <http://users.ox.ac.uk/~edip/ramlall.shtml>
[20] “The death of cyber squatting?” CIO Magazine. 30 Oct. 2005
<http://www.cio.com/archive/041500/fine.html>
[21] “Cyber squatting: What is it and what can be done about it?” Nolo. <http://www.nolo.com/article.cfm/objectID/60EC3491-B4B5-4A98BB6E6632A2FA0CB2/111/228/195/ART>.
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