SENSIBLE ADVICE FOR BEGINNERS ON A SLIPPERY LEGAL SUBJECT:
A Review of Doug Isenberg's Internet Law Guide

Doug Isenberg, The GigaLaw Guide to Internet Law (Random House 2002)

Attorney and website founder Doug Isenberg has just published a guide to Internet law.(Certain sections were written by other contributors, as well.) In doing so, Isenberg assigned himself a Sisyphean task: to offer a "one stop legal resource for conducting business online," as the subtitle indicates.

The problem is that Internet law is too slippery a beast to pin down in one book. Since the book's printing, much new law has been made, and new issues have arisen.Yet even where it is impossible for the authors to give a final answer, they do a good job of drawing out the key issues which anyone starting or transacting a business on the Internet should know about.

The truth is that a website that wants legal advice is best served by having a lawyer on call.Indeed, the authors themselves warn that the reader should consult his or her own attorney "before attempting to comply" with the law as explained in the book.For those who seek an introduction to Internet law, reading Isenberg's book is an excellent start.

The book is most useful for - and primarily geared towards - the novice reader who is starting a website or web-based company. Accordingly, rather than delving into the nuances of policy issues, Isenberg and his co-authors concentrate on spotting the issues of which one should be aware - much as any diligent law student is trained to do on a final exam.

The book thus helps readers know when it is most urgent to consult a lawyer. Yet even the cyberlaw expert will find value in the book, and will enjoy the read, particularly for a refresher course in the "history" of Internet law, all seven or so years of it.

Among other virtues, the book deserves praise for explaining the central principles of which anyone involved with an Internet business should be aware.It also should be applauded for delineating the legal traps and minefields that, as of its writing, threatened to imperil the unwary.

The book's chapters cover a range of areas of Internet law-including intellectual property, free speech, spam, privacy law, website development agreements and online contracts.Copyright, trademark, and patent law alone take up about half of the book, and rightly so.

Many Internet businesspeople and users may be unfamiliar with the traditional central issues in these areas of the law.And without knowing those issues, it is hard to understand how this law is being adapted to the new problems that have arisen with the new medium of the Internet.

Experts in the area may find nothing new in these sections, but those less familiar with intellectual property law, in general and as interpreted on the Internet, may find them invaluable.

Less Concerned with Policy Than Providing Practical Advice

Instead of passing judgment on the issues, the writers are intent on extracting the key lessons to be learned from important cases and legislation. For example, the writers don't pass judgment on the various failed acts intended to protect children from pornography online, or suggest what legislation would look like that might pass muster in the Supreme Court. Instead, the writers describe the various Acts and then sum up the lessons to be drawn.

The authors are less concerned with shaping policy than with providing practical advice. Thus, regarding legislation on child pornography, they explain: "Congress has repeatedly tried to regulate content on the Internet, but the courts thus far have found that the regulations violate the First Amendment, because they are vague (by not defining what's off-limits) or overly broad (by restricting more content than is necessary)."This kind of treatment shows why the book might be at times of less value to experts, than to businesspeople interested in knowing only the law directly relevant to them.

The Digital Millenium Copyright Act Discussion Is Too Brief

However, one area where this lack of policy discussion or criticism of legislation was most galling was in the brief treatment of the Digital Millenium Copyright Act, an important piece of legislation that has drawn much fire and discussion in the last year. It resulted in high-profile cases such as the arrest of Russian programmer Dmitry Skylyarov on criminal charges, and the DeCSS case in which movie studios allege that a hacker violated the DMCA by offering for download a program that facilitates the decrypting of DVDs, both of which are briefly mentioned in the book.

Similarly, the book sidesteps delving into several other important Internet cases, such as the French court ordering Yahoo in 2000 to block the publication of hate related items on its auction site, and the ruling by a U.S. district court in November 2001 that the French court's order was not enforceable against Yahoo in the United States. These are fascinating and perplexing cases with ramifications for the evolution of international jurisdiction online that deserve detailed and thorough treatment, but here receive only a few sentences, probably because the law is so undefined and it would be impossible to draw out clear guidelines for readers to follow. Still, these are cases with tremendous ramifications for companies doing business online.

A Handy Guide to Internet Law That Even Experts Will Appreciate

One of the book's best features - and one even the cyberlaw expert will

find interesting - is its handy, comprehensive "history" of the highlights of Internet law.(Amusingly, on the Internet "history" extends only about seven years when it comes case law and legislation.Imagine trying to explain Constitutional Law with cases from only the first seven years after the Constitution's adoption, and you will have sympathy for the task Isenberg et al. took on.)

What is especially fun to read even for those already familiar with Internet law are the case studies that begin most chapters, some of which are fascinating in their quaintness. In particular, the description of the battles over cybersquatting of corporate names by individuals, back in the Wild West days of the Internet when not ever domain name imaginable was already registered, was amusing in its reminder of different the digital landscape now is.

Just as quaint in its reminder of how much has changed in such a short time was the case study of GeoCities which settled FTC charges in 1998 of violating consumer privacy, receiving a great deal of adverse publicity and then being bought by Yahoo in a stock deal "reported to be worth 3.6 billion." Those were surely the good old days of start up Internet companies.

Most of the case studies--such as the Zeran v. America Online case which starts the free speech chapter etc. etc.- stem from these early pioneer days of the Internet. Even the cyberlaw expert will find a review of these cases refreshing, a good reminder of how far Internet law has come, how much has changed, and in some cases, has not.

Yet the downside of focusing on the bad old days of Internet law is that the book does not address some of the most interesting and confounding issues in Internet law today, such as global Internet jurisdiction--how laws passed in one country affect Internet companies based in another country.

As a result, while the book is an excellent handy resource for someone starting a business online who wants a primer on legal issues to look out for or to ask his attorney about, or for the lawyer who either wants to learn about Internet law or wants a refresher course, and even for the cyberlaw attorney, inevitably it is not the final definitive word on the ever-evolving state of Internet law.