Henry H Perritt Jr.'s

Law and The Information Superhighway

John Wiley & Sons Inc. 1996
673 pp plus Table of Cases, Regulatory Determinations and Index - £105
ISBN 0 471 12624 1

Reviewed by
Charlotte Waelde
University of Edinburgh
charb@srv0.law.ed.ac.uk

Contents

1. Introduction
2. The Superhighway as a network of roads
3. Practicalities
4. Solutions to Potential Problems
5. Conclusion

Excerpts from the opening chapter

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Date of publication : 30 September 1996.

Citation: Waelde, C (1996), 'Henry H Perritt Jr; Law and The Information Superhighway', Book Review, 1996 (3) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/elj/jilt/bookrev/3waelde/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1996_3/waelde/>.

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1. Introduction

In recent years, as the Information Superhighway has become increasingly commercialised, there has been debate as to which laws may be applicable to the regulation and activities that take place in Cyberspace. Many commentators now accept that traditional laws do apply albeit in novel ways. Law and the Information Superhighway is one of a growing number of books in which the author examines the current law (in this case, United States law) and applies it to these novel situations encountered in the Information Superhighway.

Professor Perritt is in a good position to write such a book. He has given advice not only to the President's Office on Federal Electronic Policy but also advised the European Commission and the OECD on Information Technology. His wealth of experience reveals itself through this book.

2. The Superhighway as a network of roads

In common with others, Professor Perritt compares the Superhighway to a network of roads. Vehicle accident law translates into an examination of laws ranging from defamation to misleading advertising in Chapter 4. Liability for loss that may be caused if there is a traffic jam, if potholes cause damage, or if incorrect signposting causes users to lose their way is covered in Chapter 5 on the responsibility of service providers. In Chapter 8, there is a description of the network providers and of the regulatory framework designed and operated to encourage compatibility and interoperability of the various parts of the network. The comparison is with those who paint lane markings on the roads and with those who ensure that the ends of the roads meet so that drivers can pass from one highway to another without worrying that the uneven road Sutfaces will cause the car radiator to jump through the bonnet. Other Chapters include comments on practical issues that are relevant to the Superhighway, such as how access can be gained to the network in Chapter 2; and how electronic commerce works in the Highway particularly in relation to electronic contracting and the electronic authentication of documents in Chapter 4. Civil dispute resolution and procedure is covered in Chapter 12; criminal law in Chapter 13 and International law and trade in Chapter 14. The Orwellian vision of a society in which every individual act is monitored by or on behalf of those in public authority is not dissimilar in concept from the works of earlier authors such as Plato with his Republic and Thomas More's Utopia . It may be that it is the element of technology which transforms visions of a surveillance society from dream to nightmare. Simon Davies goes on to draw another literary comparison. 'The society we are developing now', he suggests, 'is more Huxley-like than Orwellian. It is Brave New World.' The key component of the distinction is the sense that, albeit as the result of life-long conditioning, conformity, and surveillance to ensure this, comes from within the individual members of society rather than being imposed by some external and authoritarian force. The differentiation of the two modern images of the society to come is an interesting one but is perhaps of questionable validity. Much of the imagery in 1984 and indeed the very phrase Big Brother is familial in nature. Although the reader may recognise the signs of totalitarianism, the closing lines of the novel tell a different tale. Winston Smith comes to 'love Big Brother'.

It is a feature of all the works referred to above that the distinction between the public and private sectors is almost invisible. To an extent, this is paralleled by modern developments. The ease with which data may be transferred from one computer network to another, a phenomonen epitomised in the Internet, is serving to break down boundaries between the sectors. Ever increasing amounts of personal data are gathered in an attempt to satisfy the appetites of IT system. As a French saying has it, however, appetite comes with eating, and the availability of and perceived need for data feed each other incessantly. Techniques such as data mining strive to extract the last ounce of value from raw data whilst the practice of data matching enables linkages to be made between the contents of what were previously discrete data banks.

3. Practicalities

Scattered throughout the book are interesting and practical points relevant to a variety af economic aspects of the Information Superhighway. For example in Chapter 1 (page 16) there is a discussion on how the Internet provides a forum for disaggregating value productions and how a variety of players must fill these roles to provide added value. These insights are very useful in helping to keep the legal discussion firmly rooted in the subject that is being analysed

At times the author suggests practical ways in which players may protect their interests without needing to look for legal protection. For example he describes how intellectual property on the Superhighway may be protected without the need to resort to the law of copyright (page 458 Chapter 10). Some of his suggestions are familiar from traditional publishing, others are peculiar to the digital nature of the Internet. A well known but still developing method is that of HTML tagging, another is encryption. The author makes an interesting suggestion; copyright material should be placed on the internet that has a fine granularity, and which is therefore not decipherable by anyone but those with the correct authorisation and technical means to 'decipher' the text. Perhaps this has its genesis in the production of documents on pale blue paper in a fine type which makes photocopying difficult.

Henry Perritt continues his practical theme by providing exarnples of wording for agreements that players may find useful. An e-mail storage agreement that includes obligations to maintain privacy can be found on Page 158; and examples of selection and choice of law clauses on page 540.

4. Solutions to Potential Problems

In many parts of his book, where lacunae in the law exist, perhaps because it has not yet caught up with the technology being used, Henry Perritt gives suggestions as to how the problems may be resolved. For example he deals with some of the problems posed by caching; on page 435 - 436. Caching can be a copyright infringement. Henry Perritt explains how to apportion the risks using a network of novel contractual provisions. It is disappointing that the author does not go into greater depth in his discussion on the topical issue of the ways in which domain names may conflict with registered trade marks. He gives a brief description of the issues but no insight either how the conflict may develop nor any suggestions for resolving the conflicts .

Professor Perritt seldom becomes immersed in academic discussion His approach is that the current law can deal with the lnformation Superhighway with no more difficulty than it had dealing with ocean commerce, international civil aviation or telecommunications when they were new' (page 31) His book is consistent with this approach and applies the relevant laws of the Unitcd States (taking the assumption that it is the law of the United States that is relevant) to the Information Superhighway in a clear and concise manner.

5. Conclusion

Obviously, the focus of the book is on the laws of the United States. Nonetheless it will provide valuable reading for those whose work involves advising on almost any aspect of the lnformation Superhighway. As the book is such a comprehensive survey, it should be well worth while reading and extrapolating and applying to a particular jurisdiction those topics which are particularly relevant or of particular interest to the readser. if a working knowledge of the Law of the United States in this area is required then Law and the Information Superhighway is an excellent springboard for further study.