The Future of Cybertravel: Legal Implications of the Evasion of Geolocation
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Fordham Intellectual Property, Media and Entertainment Law Journal Volume 22 Volume XXII Number 3 Volume XXII Book 3 Article 2 2012 The Future of Cybertravel: Legal Implications of the Evasion of Geolocation Marketa Trimble William S. Boyd School of Law, University of Nevada, Las Vegas, [email protected] Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Intellectual Property Law Commons Recommended Citation Marketa Trimble, The Future of Cybertravel: Legal Implications of the Evasion of Geolocation, 22 Fordham Intell. Prop. Media & Ent. L.J. 567 (2012). Available at: https://ir.lawnet.fordham.edu/iplj/vol22/iss3/2 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. The Future of Cybertravel: Legal Implications of the Evasion of Geolocation Cover Page Footnote Associate Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas. The author thanks her colleagues at the William S. Boyd School of Law for their comments and suggestions, particularly Professor Mary LaFrance, Professor Ann McGinley, Professor Francis J. Mootz III, and Professor Jean Sternlight. She would also like to thank Professor Pedro de Miguel Asensio, Professor Derek Bambauer, Professor Adam Candeub, Professor John Cross, JUDr. Adela Faladova, Paul Geller, Professor Eric Goldman, Professor Paul Goldstein, Professor Thomas Hoeren, Professor Paul C. Van Oorschot, Professor David G. Post, Wendy Seltzer, Professor Brenda Simon, and Professor Dan Jerker B. Svantesson. The author appreciates the helpful input from the participants of the 2011 Internet Law Works in Progress conference, the 2011 Intellectual Property Scholars Conference, and the 39th Research Conference on Communication, Information and Internet Policy. The author is indebted to David McClure and Jennifer Anderson at the Wiener-Rogers Law Library of the University of Nevada, Las Vegas, and Shweta Kadam of the William S. Boyd School of Law for valuable research support, and Ammon Francom and William “Hunter" Campbell, J.D. candidates at the William S. Boyd School of Law. The author thanks Gary A. Trimble for his unlimited support for her research and writing. Finally, the author would like to recognize a friend from Sunnyvale, California, who inspired the author to write this article. This article is available in Fordham Intellectual Property, Media and Entertainment Law Journal: https://ir.lawnet.fordham.edu/iplj/vol22/iss3/2 The Future of Cybertravel: Legal Implications of the Evasion of Geolocation Marketa Trimble* Although the Internet is valued by many of its supporters particularly because it both defies and defeats physical borders, these important attributes are now being exposed to attempts by both governments and private entities to impose territorial limits through blocking or permitting access to content by Internet users based on their geographical location—a territorial partitioning of the Internet. One of these attempts is the recent Stop Online Piracy Act (―SOPA‖) proposal in the United States. This article, as opposed to earlier literature on the topic discussing the possible virtues and methods of erecting borders in cyberspace, focuses on * Associate Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas. The author thanks her colleagues at the William S. Boyd School of Law for their comments and suggestions, particularly Professor Mary LaFrance, Professor Ann McGinley, Professor Francis J. Mootz III, and Professor Jean Sternlight. She would also like to thank Professor Pedro de Miguel Asensio, Professor Derek Bambauer, Professor Adam Candeub, Professor John Cross, JUDr. Adela Faladova, Paul Geller, Professor Eric Goldman, Professor Paul Goldstein, Professor Thomas Hoeren, Professor Paul C. Van Oorschot, Professor David G. Post, Wendy Seltzer, Professor Brenda Simon, and Professor Dan Jerker B. Svantesson. The author appreciates the helpful input from the participants of the 2011 Internet Law Works in Progress conference, the 2011 Intellectual Property Scholars Conference, and the 39th Research Conference on Communication, Information and Internet Policy. The author is indebted to David McClure and Jennifer Anderson at the Wiener-Rogers Law Library of the University of Nevada, Las Vegas, and Shweta Kadam of the William S. Boyd School of Law for valuable research support, and Ammon Francom and William ―Hunter‖ Campbell, J.D. candidates at the William S. Boyd School of Law. The author thanks Gary A. Trimble for his unlimited support for her research and writing. Finally, the author would like to recognize a friend from Sunnyvale, California, who inspired the author to write this article. 567 568 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 22:567 an Internet activity that is designed to bypass the territorial partitioning of cyberspace and render any partitioning attempts ineffective. The activity—cybertravel, or the evasion of geolocation—permits users to access content on the Internet that is normally not available when they connect to the Internet from their geographical location. By utilizing an Internet protocol address that does not correspond to their physical location, but to a location from which access to the content is permitted, users can view or use content that is otherwise unavailable to them. Although cybertravel is not novel (some cybertravel tools have been available for a number of years), recently the tools allowing it have proliferated and become sufficiently user-friendly to allow even average Internet users to utilize them. Indeed, there is an increasing interest in cybertravel among the general Internet public as more and more website operators employ geolocation tools to limit access to content on their websites from certain countries or regions. This article analyzes the current legal status of cybertravel and explores how the law may treat cybertravel in the future. The analysis of the current legal framework covers copyright as well as other legal doctrines and the laws of multiple countries, with a special emphasis on U.S. law. The future of the legal status of cybertravel will be strongly affected by the desire of countries and many Internet actors to erect borders on the Internet to facilitate compliance with territorially-defined regulation and enjoy the advantages of a territorially-partitioned cyberspace. This article makes an attempt to identify arguments for making or keeping certain types of cybertravel legal, and suggests legal, technological, and business solutions for any cybertravel that may be permitted. INTRODUCTION ............................................................................. 569 I. THE INTERNET AS A BORDERLESS MEDIUM ................. 575 II. GEOLOCATION TOOLS .................................................. 586 A. Use of Geolocation Tools....................................... 586 B. Operation of Geolocation Tools ............................ 592 III. EVASION OF GEOLOCATION.......................................... 599 IV. THE LEGAL STATUS OF CYBERTRAVEL ........................ 605 2012] THE FUTURE OF CYBERTRAVEL 569 A. Is Cybertravel Legal? ............................................ 606 1. Liability of Cybertraveling Users .................... 607 a) Liability under Copyright Laws ................. 611 b) Liability under Other Laws ........................ 624 2. Liability of Cybertravel Providers ................... 628 B. Should Cybertravel be Legal? ............................... 636 1. Cybertravel as a Misrepresentation of One‘s True Location ................................................... 636 2. Cybertravel and the Right to Obscure One‘s Location ........................................................... 638 3. Cybertravel as an Equivalent to Physical Travel ............................................................... 640 C. Can Cybertravel be Legal? .................................... 647 CONCLUSION ................................................................................. 654 INTRODUCTION An important decision awaits countries and the international community at large: whether people should be free to break the territorial limits that governments and other entities attempt to impose on the Internet—whether Internet users should have the freedom to travel in cyberspace. Traveling in cyberspace, or ―cybertravel,‖ allows Internet users to view the Internet as if they were in a location other than where they are physically present. Users cybertravel by altering the information that identifies the geographical location from which they are accessing the Internet on the device they use to connect to the Internet. Once they alter the information, they appear to the Internet world to be physically located in a different location. Through cybertravel, Internet users are able to view or use content on the Internet that they would otherwise not be permitted to access because of geolocation tools that block access to content based on the geographical location of a user. While cybertravel is a network capability that many users appreciate, it frustrates the efforts of those who want geographical borders to be created and maintained on the Internet so that 570 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol.