Blogiversary Celebration Part 4: How Internet Law and IP Law Have Evolved

Photo credit: Gold 10th 3d Number // ShutterStock

Photo credit: Gold 10th 3d Number // ShutterStock

This is the final part of my four-part series celebrating our 10th blogiversary. I asked the following question:

What do you think is the most significant change in intellectual property law or Internet law over the past 10 years? This could be either substantive changes to the law or changes in how lawyers practice in these areas.

Some responses I got:

Anupam Chander: The rise of international disputes on the Internet.

Michael Geist: I would point to public engagement and interest in Internet law issues. While there were early indications of the public’s interest and concern with Internet and IP issues in 2005, the years that followed included the SOPA protests, ACTA movement, and major public interest in domestic reforms in Canada, Europe, Australia, and more. The availability of sources such as your blog played a key role in raising awareness of the issues, increasing the public’s knowledge of the key policy and legal issues, and ultimately helped craft those very laws.

Scott Malouf: How have things changed? We all have to know a lot more about technology, a lot faster.

Michael Risch: I think a growing hostility toward IP rights among the general public has been the biggest change in the last 10 years, though it may have started earlier with peer-to-peer music sharing and people unhappy with over-the-top enforcement by the music industry.

Joel R. Reidenberg:

* Internet Law: Increasing salience of privacy and surveillance issues. However, the law (and issues) seem the same as 10 years ago–i.e. same issues, same debate, different contours and buzz words.

* IP: The sorting out and diminution of file sharing cases. I attribute this to the Napster/Grokster decisions and the resulting growth of iTunes.

* Practice: The emergency of privacy and security practice groups in major firms and the growth in compliance matters

Marty Schwimmer: We no longer care whether or not there is in fact a Law of the Horse. There are obviously fact patterns that exist only online (DMCA disputes, for example) but I don’t think people define their practices in that manner (much, any more).

* * *

Venkat’s Answer: The influence of the internet and the public on over-reaching in disputes and legislation (trademark bullying, takedowns demands, and SOPA/PIPA) may not be the most significant, but definitely interesting. The approach of big, well-funded companies to regulation, whether we’re talking about stepped up lobbying efforts, or Uber’s approach, is also worth noting.

Eric’s Answers

* The end of Cyberlaw 1.0 issues. Some of my key topics I covered extensively in the early days of the blog seem quaintly anachronistic today, such as:

– spam. CAN-SPAM was just a year old in February 2005, and I had just published an article on spam. Does anyone still care about spam, or has Gmail’s spam filter essentially resolved the issue? We still blog spam cases occasionally but it’s a pleasant surprise to find a bloggable spam case today.

– adware/spyware. Adware was a Big Deal in the mid-2000, and I covered the adware wars extensively. I declared the end of the adware wars in 2008. In 2014, we blogged one adware case.

– metatags. Keyword metatags are probably the Internet technology that have caused the most judicial confusion and perhaps the most doctrinal harm. Fortunately, the word has gotten out that keyword metatags have become irrelevant. We occasionally still see metatag cases, but usually the metatags are just an incidental player in the dispute.

– initial interest confusion. This legal doctrine was linked to the metatag problem, but the IIC doctrine had a broader footprint and thus was even more troublesome. I can’t recall seeing a case where the IIC doctrine helped the plaintiff since 2011, and someday I hope to write an article definitively declaring the doctrine dead.

– gripe sites. 2005 was the height of battles over gripe sites. We saw a string of victories for gripers (including the Lamparello case) that effectively swung the pendulum in their favor. We still see gripe site suits occasionally (such as this 2014 case), but I much more frequently see griping behavior on social media and consumer review websites.

– keyword advertising. We were just beginning the keyword advertising battles in 2005, but those battles are pretty much over. In the near future, I’ll write a short essay declaring the end of the keyword advertising legal battles.

We can learn a lot by reflecting on the hot legal issues of 2005 and seeing how they’ve diminished a decade later. This is such a common phenomenon that it makes me wonder why we keep freaking out about the latest technological developments du jour. A decade from today, we’ll look back and wonder what the fuss was all about.

* The rise of mobile. For the most part, the legal principles we developed for the web world easily extend to the mobile world. However, consumers’ shifts to mobile is stretching Internet law. First, mobile operating systems have different technical capacities than desktop operating systems, which enables new functionalities we haven’t seen previously. Constant geolocation is the most obvious example. Second, mobile is creating new intermediaries to replace the web intermediaries. For example, mobile sessions don’t start with a Google search like they do on the Internet. Third, more than ever, Internet users via mobile have a wider range of online experiences due to their heterogeneous hardware and software configurations, and it becomes harder for lawyers to spot and resolve problems because a single app vendor could have dozens or hundreds of different configurations in the field, whereas a website often only had one user interface to worry about. This also creates problems for archiving and being able to recreate issues subsequently. Finally, the mobile app programming environment has unleashed a cohort of new entrepreneurs who don’t know the law very well. This means we’re in a bit of a “Wild West”–not because there’s no law, but because some key players aren’t trying very hard (yet) to conform to them. Many of these issues will be resolved in the next decade, but expect more bumps during the transition.

* Exceptionalism proliferation. Internet Law has always suffered its own questions about exceptionalism. Whatever questions we had about the appropriateness of cleaving “Internet Law” from the rest of “Law” have been answered by the sheer volume of new Internet-specific law passed over the years. As I’ve mentioned before, in one legislative session a couple of years ago, California legislators introduced over 400 bills containing the word “Internet.” So we study Internet Law in part because there’s just so much of it.

Now, we’re seeing proliferation of exceptionalism within Internet law. Most obviously, we’re seeing social media exceptionalism, where regulators are trying (wholly unsuccessfully) to cleave social media from the rest of the Internet for regulatory purposes. Other exceptionalism examples include mobile apps and online dating sites. For more, see my article on the three waves of Internet exceptionalism.

* Patent skepticism. There have always been skeptics about the patent system. However, in the last 10 years, I think that skepticism has become much more widespread and the skeptics’ influence in policy circles has grown substantially. In my IP class, many of my students now walk into the first day with some skepticism about patents, whereas when I first started teaching IP, I think virtually all of my students assumed patents were unreservedly a good thing. My understanding is that patent skepticism is like a pendulum which waxes and wanes in cycles. I think we’re in a patent down-cycle; eventually the pendulum will swing in the opposite direction again.

* Empirical studies of IP. The last 10 years has seen a dramatic growth in empirical studies of IP. We’re getting the data; now all we need is data-driven policy decisions.

* The emergence of privacy. Privacy is one of the most significant social issues of our time, and the demand for privacy lawyers and professionals has exploded, rivaling–and perhaps eclipsing–the market demand for IP lawyers. In my circles, almost all “licensing” lawyers and many in-house counsel are spending much/most of their practice time on privacy matters. This demand has given rise to a burgeoning cohort of privacy specialists, a trend I don’t see abating any time soon.

This is part 4 of a 4 part series celebrating our 10 year blogiversary:

Part 1: Happy 10th Blogiversary!
Part 2: The Blog’s Impact
Part 3: The Blogosphere’s Evolution
Part 4: Changes in Internet and IP Law
Bonus: A Video Interview About the Blog