Infringement and the Internet

(Second of three parts)

There is this fascinating story of the world’s first programmer. I am glad I kept the notes I have on Lady Augusta "Ada" Lovelace (1815-52), daughter of the celebrated poet, Lord Byron. The London Examiner had written these words about her: "She was thoroughly original, and her genius, for genius she possessed, was not poetic, but metaphysical and mathematical."

Lady Lovelace was mentor to Charles Babbage, who spent most of his life trying to perfect a calculating machine. His first version of this was called the "Difference Engine," and his second, the "Analytical Engine."

Ada had a gift for writing similar to her father’s, and in 1843, she began a translation of a famous paper on the Analytical Engine. Her insights were such that her notes grew to three times the length of the original article and were accepted for publication in a book entitled Taylor’s Scientific Memoirs.

Ada Lovelace was such a fascinating woman, described as "possessed of an intellect thoroughly masculine in solidity, grasp and firmness." (I will not bother to make a comment on this chauvinistic statement because it was uttered in the mid-1800s). What I gathered from my notes was that her manners and her tastes were feminine in the nicest sense of the word, and the superficial observer would never have divined the strength and the knowledge that lay hidden under the womanly graces.

Proportionate to her distaste for the frivolous and commonplace was her enjoyment of true intellectual society, art and literature, especially the members of the male gender. There are interesting tales of her liaisons with her protégé Babbage and other scientists which may or may not be true. She died at the early age of 36, the same age as her father, Lord Byron.

A century and three decades after, the British Department of Defense inaugurated a special programming language called "ADA" to honor the world’s first programmer, Lady Ada Lovelace. It would be about a hundred years later before women became involved with computers again. By that time, technology had progressed beyond gear-driven calculators to devices employing electricity, vacuum tubes and relays.

Babbage’s machine was reborn at Harvard University in 1944 as a machine called the Mark I or Automatic Sequence Controlled Calculator.

The United Kingdom had addressed the related problem of Internet content responsibility competently. Lady Lovelace, a British national, would have been in the forefront of content innovation had she lived. France, the Netherlands, Germany and Sweden followed suit early enough. Currently, all of Europe have done so.

As regards the restriction notices on shareware or freeware content, if a firm cannot comply with any term noted in the restrictions notice, the employee should be advised not to use the Internet material. And if Internet material is used, a company should have a process to follow, to ensure that the Internet material used did, in fact, comply with the appropriate restrictions.

Firms that effectively use the Internet for internal use, such as IBM, also employ a process that effectively communicates applicable restrictions to anyone receiving a copy of the material.

Internet material that an employee downloads from the Internet through an employer’s computer, and uses outside of the firm’s premises, involves a legal risk that the employee may have infringed upon the intellectual property rights of the owner of the downloaded material and exposed the firm to liability. Thus, employees should exercise caution in distributing material from the Internet, particularly outside of the firm. This will answer the questions of two of my readers: Prof. Lilia Ordense and Atty. Cielito Habacon.

Atty. Juan Collas of the famous Collas clan in the Philippines, who was a classmate of mine at the Yale Law School, sent me an e-mail which, among others, says that he is looking forward to the continuation of my article, and stresses the fact that "having your copyright infringed is one thing, enforcing it is another."

Johnny is a sharp and experienced lawyer from the Baker and Mackenzie law firm. A couple of years ahead of me at the UP College of Law, he went to the Yale Law School only at the same time as myself together with Attys. Ador Hizon, Manny Javelosa, Bing Padilla, and the late Gonzalo Santos. Johnny fell in love with a good-looking Portuguese-American classmate of ours, Maria Moreira. If my information is correct, he and Maria, with their children, now live in Connecticut close to New Haven, where he and Maria fell in love. As a Baker and Mackenzie stalwart, Johnny was principally responsible for the setting up of the firm’s Philippine office.

This portion of my series on "Infringement and the Internet" and the concluding part will focus on court decisions from various advanced countries of the global telecommunity as regards the related responsibility for content control which varies in Europe and the US.

A Paris district court recently found a French ISP (Internet Service Provider) and an Internet site responsible for the content shown on the site. A model, Estelle Hallyday, requested both the Internet Site Owner (ISO) and the ISP to remove a photograph of her in a state of undress. Neither the ISO nor the ISP responded affirmatively. In the court adjudication, the moral responsibility of the ISP to its subscribers was likened to that of a good father watching over his children. The court thus ruled that the ISP must act in conformity with the law and the rules that exist on the Internet, and must also respect the rights of third parties. The court categorically stated that the ISP had both the opportunity to investigate and the power to take action in this instance.

Exoneration could be obtained only if the ISP could prove that: a) the site had been sufficiently monitored through random checks, and b) that as soon as the ISP had become aware of the infringement of the rights of third parties, appropriate measures were undertaken to end the infringement. Thus, the court ordered the ISP to prevent further distribution of the photograph, or face a penalty of 100,000 French francs per day. On appeal, said penalty was reduced to the lump sum of 300,000 francs.

Germany addressed ISP content liability in August 1997 through the enactment of the "Teledienstgesitz" (ISP statute). Paragraph 5 of said legislation provides that an information provider is liable for the content that is published. On the other hand, an ISP is only liable for content originating from others in the event that the ISP has actual knowledge of the infringement and is reasonably able to influence future use of the information.

The Teledienstgesitz provides a criterion for the application of liability. This criterion is applicable to every area of the law as copyright, tort and criminal law. As a result, only after an Internet intermediary is found liable under this test does the issue of liability under the specific provisions of the relevant law of civil or criminal law come into play.

(To be concluded)

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