Cyberlaw Outline - Lal

LAW IN CYBERSPACE OUTLINE
1. Chapter One: Introduction to the Idea of Cyberlaw

a. Why Cyberlaw? i. Easterbrook, Cyberspace and the Law of the Horse, 4-6 1. Dont try to build a separate law of cyberspace things are moving too fast in cyberspace for any law we write to be applicable for long. 2. Just do your best to apply old principles of law theyre not there because they havent worked before. 3. How true is this really, though? Not everything in cyberspace has a real-world analogy. a. USPS isnt liable for libel for something sent through the mail, but an email provider might be. b. Trademark law - two restaurants with the same name on different coasts might not be competing with each other, but theres only one domain name. ii. Lessig, The Law of the Horse: What Cyberlaw Might Teach, 6-13 1. Internet is fundamentally different from the real world. a. Things immediately determinable in the real world, like age or sex, arent obvious in cyberspace. b. Things immediately obvious in the real world, like whether someones following you, arent in the blogotubes. 2. Current law isnt going to work. Have to cook up new stuff, or just leave it alone. 3. How true is this really, though? Its not that different. a. People can watch you in the real world without you knowing. b. Anonymity is harder to maintain on the Internet than it might appear. iii. Frischmann, Why Internet Studies? 13-14
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2. Chapter Two: Problems of Metaphor and Analogy

a. Four ways to regulate behavior i. Law ii. Social Norms iii. Architecture iv. Market b. Trespass to Chattels in Cyberspace i. Elements of Trespass: Intentional and unauthorized use of personal property which proximately results in damage to P. ii. eBay v. Bidders Edge, 27-32 1. Ebay successfully used the 'trespass to chattels' theory to obtain a preliminary injunction preventing Bidders Edge, an auction data aggregator, from using a 'crawler' to gather data from eBays website 2. The court said that eBays trespass to chattels claim required it to show that: 1) Bidders Edge intentionally and without authorization interfered with eBays possessory interest in the computer system; and 2) Bidders Edges unauthorized use proximately resulted in damage to eBay 3. The court found that although BEs interference was not substantial, any intermeddling with or use of anothers personal property established BEs possessory interference with eBays chattel. 4. Snowball effect: If the court were to hold otherwise, it would likely encourage other auction aggregators to crawl the eBay site, potentially to the point of denying effective access to eBays customers. If preliminary injunctive relief were denied, and other aggregators began to crawl the eBay site, there appears to be little doubt that the load on eBays computer system would qualify as a substantial impairment of condition or value. 5. Notes and Questions: a. Decision may facilitate licensing agreements between auction sites and aggregators b. A clear property right to exclude may facilitate bargaining Richard Epstein i. A library of agreements through digital certificates? c. Certain transaction costs to over-propertization of the online environment. i. Tragedy of the Commons: if a commonly-held property is too easy for everyone to use, it is destroyed. ii. Tragedy of the Anticommons: if a commonlyheld property is too subdivided and difficult to
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use, then nobody uses it, which is just as bad as not having it at all. d. Search engines also crawl and index. May be appropriate to craft a public interest and noncommercial exception iii. Intel v. Hamidi, 36-48 1. Holding: There can be no Tort of Trespass to Chattels for electronic communications that neither damages the recipient computer system nor impairs its functioning. 2. Court declined to extend common law trespass claims to the computer context, absent actual damage: the claimed injury is located in the disruption or distraction caused to recipients by the contents of the e-mail message an injury entirely separate from, and not directly affecting, the possession or value of personal property. 3. Court may have implicitly overturned Ebay decision: [W]e do not read [eBay decision] as expressing the courts complete view of the issue. In isolation, moreover, [it] would not be a correct statement of California or general American law on this point. a. Distinguishes Ebay: The standard is not substantial interference but perhaps use. Defendants conduct amounted to use of the Plaintiffs computer. 4. Remember that an injunction requires: a. Potential for irreparable harm b. Likelihood for success on the merits c. The hardships on the plaintiff of not granting the injunction exceed those on the defendant by granting it 5. Public policy concern: private trespass action for unsolicited or unwanted emails will permit website operators and service providers to stifle speech by clearing their network of undesirable communication. a. Propertization of internet creates system of one to one negotiation, giving rise to individual licenses for access b. If cyberspace is a townsquare and hence public, First Amendment protections are necessary. But if the analogy is private property owners, then censorship is allowed. Similar to real world, the architecture of the Internet is a bit of both: public and private. c. Trespass to chattels really does not work in online context: Nothing is taken here that is not meant for public consumption. c. Consumer Confusion and Online Trademarks, 51
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i. Consult Lanham Act and Overview of Trademark Law, Course Supp. 2-11 1. Trademarks: A trademark (or service mark) is a word, phrase, symbol, design, anything used to identify and distinguish ones goods (or services) from those of others. a. TMs symbolize the goodwill associated with the TM owners business and protect consumers from product confusion. b. By using such marks in connection with ones goods/services in commerce, one can acquire the exclusive right to do so. 2. The more distinctive a mark, the broader the scope of protection under traditional trademark infringement law. a. Arbitrary/fanciful mark bears no logical relationship to product. KODAK for cameras, APPLE for computers b. Suggestive mark evoke characteristic of underlying good. COPPERTONE for suntan lotion c. Descriptive mark weaker. Can go on supplemental register. ALL BRAN for cereal d. Not inherently distinctive. MovieBuff? Are protected only if they have acquired secondary meaning when consuming public primarily associates the mark with the particular producer e. Generic marks are unprotected by trademark law. ASPIRIN for painkiller, THERMOS, Soda. 3. Federal TM Law is codified in the Lanham Act, 15 U.S.C. 1114, 1125 a. 1125(a) TM infringement - Any person who, on or in connection with any goods or services, . . . uses in commerce any word, term, name, symbol, or device, . . . or any false designation of origin, . . . which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person shall be liable in a civil action . . . b. 1125(c) TM dilution of famous marks (added in 1995) c. 1125(d) Anticybersquatting Consumer Protection Act (added in 1999) 4. Domain Names a. Domain names are unique addresses for web sites, such as amazon.com and gwu.edu, that map to internet protocol (IP) addresses.
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b. Historically, there were 5 generic top level domains (TLDs) -- .com, .org, .edu, .net, and .gov and many country code TLDs -- .us, .uk, .it c. The Domain Name System (DNS) is the system that coordinates the allocation of domain names. d. Network Solutions Inc. (NSI) was primary registrar of generic TLDs. 5. NSI and TM/DN disputes a. NSI registered DNs on first come, first served basis, with no preclearance procedure b. Whoever was first to register McDonalds.com got it. c. How should TM rights in real space extend to the domain name space? 6. What uses of anothers TM should be permissible on the Internet? What analogies are relevant and appropriate for determining acceptable use of anothers TM in these contexts? a. In domain name b. In metatags c. Use by search engine ii. Brookfield Communications, Inc. v. West Coast Entertainment Corp., 51-58 (Trademark in own domain and also in metatag, which results in more hits for the competitor whenever a customer runs a search) 1. Elements of an infringement case: use of a competitors mark in commerce in connection with the offering of goods or services in a manner likely to cause confusion a. Ps ownership of the mark b. Ps priority as against subsequent users c. Ds use in commerce in connection with the sale of goods or services d. Likelihood of confusion 2. Associational vs. initial interest confusion. a. Associational: confused into thinking that a given product is in fact a competitors product. b. Initial interest: confused into going to a given store by misdirection, thinking it is a competitors store, but using the given store because its convenient, even though its not what you initially wanted. 3. Holding: Brookfield has a valid, protectable trademark in "MovieBuff" and West Coast's use of the domain name moviebuff.com would cause a likelihood of confusion. West Coast cannot use the term "MovieBuff" in the HTML metatags of its web site. Although there is no likelihood of confusion, the use of "MovieBuff" in the metatags could cause an initial interest confusion.
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4. Facts: a. Brookfields business model: Searchable database of entertainment info. under MovieBuff mark as of 1993 i. 1994: Calif. TM registration for MovieBuff for computer software ii. 1996: attempts to register moviebuff.com with NSI iii. This DN has already been registered by West Coast iv. 1997: applied for fed reg. of MovieBuff b. West Coasts business model: i. Video rental store chain like Blockbuster ii. SM The Movie Buffs Movie Store fed. registered in 1991 iii. 1998: plans to launch moviebuff.com website iv. Plans to use moviebuff as metatag in connection with website c. Brookfields claims against West Coast: i. TM as DN ii. Arguments that West Coasts use of moviebuff.com as DN is TM infringement iii. Use of mark, in commerce, likely to cause confusion d. West Coasts defense i. West Coast first to register a similar trademark and first in time to buy DN ii. Intended use of moviebuff.com would not cause a likelihood of confusion so there could be no violation under the Lanham Act. iii. Using movie buff as descriptive term 5. For likelihood of confusion test: Court uses eight factors known commonly as the Sleekcraft factors in determining whether there was a likelihood of confusion: "similarity of the conflicting designations; relatedness or proximity of the two companies' products or services; strength of Brookfield's mark; marketing channels used; degree of care likely to be exercised by purchasers in selecting goods; West Coast's intent in selecting its mark; evidence of actual confusion; and likelihood of expansion in product line 6. See Strick Corp case: Internet surfers are inured to the false starts and excusions awaiting them and are unlikely to be dissuaded or unnerved when after taking a stab at what they think is the most likely domain name for a particular website, guess wrong and bring up another webpage. 7. Brick and mortar comparisons
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8. Is there a free speech component? Acceptable uses of meta-tags that dont create confusion: a. Criticizing social or business practice i. Nike uses child labor. Boycott Nike. ii. Planned Parenthood is immoral . . . b. Differentiating with another competitor i. This is West Coast not Brookfield ii. Were better than Brookfield iii. Playboy v. Netscape (Search engine keys trademaekred terms to advertisements for rival websites) 1. Facts: Playboy claimed that Netscape's use of the terms playboy and playmate in its keying technique for ads constituted trademark infringement. In addition, by displaying competitor's ads that were not obviously from a competitor at first glance, Playboy claimed that Netscape has committed trademark dilution. 2. Initial interest confusion doctrine: The Ninth Circuit employed an eight-factor test, originally set forth in AMF Inc. v. Sleekcraft Boats, to determine the likelihood of confusion, giving more weight to actual confusion (factor four). 3. Defenses: a. Fair use b. Nominative use c. Functional use. 4. Trademark law doesnt really fit; domain names can have only one user while trademarks can have many as long as theres no likelihood of confusion. d. Internet Access and Content Filtering in Public Libraries i. Mainstream Loudoun v. Board of Trustees of the Loudoun County Public Library, 63-66 1. Issue: Whether public libraries violate the First Amendment freedom of speech rights of library users or web publishers, by installing blocking software on computer terminals in the libraries? 2. Rule: a. Public school libraries may make acquisition decisions based on content. b. They may not make removal decisions based on content. c. Getting the entire Internet is an acquisition decision. The library need not provide any Internet at all but once it has chosen to provide access, it cannot selectively restrict certain categories of speech because it disfavors their content. 3. Battle of analogies: The Acquisition vs. Removal Debate
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a. Library: The Internet is a vast Inter-Library loan system and therefore, restricting the Internet is equivalent to deciding not to acquire material for the librarys patrons b. Plaintiff: Internet is like a set of encyclopedias, a single, integrated system, from which the Board has decided to redact some portions deemed unfit for patrons. 4. Related concerns: The Supreme Court ruled in 2003 that the Childrens Internet Protection Act (CIPA), which ties federal funding of Internet services in public libraries to mandatory filtering, is constitutional only if adults can get filtering turned off without significant delay e. The Platform Metaphor, 68 i. Gillespie, The Politics of Platforms, 68-73
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UNIT II - WHO TO REGULATE Chapter 3: Problems of Geography and Sovereignty

a. The Theoretical Debate 1. Johnson and Post, Law and Borders, 79-84 i. 4 ways borders relate to law: 1. Power. Control within your borders. 2. Effects. Proximity of people to one another, and consequent effects on behavior. 3. Legitimacy. Consent of the governed. 4. Notice. Once you cross the border, youre on notice that new laws apply. ii. Online transactions cannot effectively be regulated by territorial sovereigns because of the ease with which cyberspace actors can relocate their activities beyond the reach of the enforcing sovereign iii. It is illegitimate for territorial sovereigns to regulate activities beyond their borders iv. People selling across borders on the Internet cant very well obey the laws of every jurisdiction! 2. Goldsmith, The Internet and the Abiding Significance of Territorial Sovereignty, 84-89 i. Just because regulation is difficult and occasionally ineffective doesnt mean that governments shouldnt try to regulate an activity that creates harmful effects ii. There are plenty of ways to enforce regulations: arrest people passing through a country, seize their property, extradite them. Government can also control local effects by prosecuting end users or local intermediaries such as service providers. iii. A practical example of borders in Internet regulation: extraterritorial regulation of speech. b. Jurisdictions, 99 1. Three forms of jurisdiction: i. Jurisdiction to Prescribe when does one country have the right, as a normative matter, to apply its legal norms to a given dispute (esp. a dispute involving extraterritorial conduct) 1. Choice of law inquiry 2. Jurisdiction to Adjudicate countrys ability to subject persons to the legal process -- personal jurisdiction ii. Judgment Recognition/Jurisdiction or Power to Enforce -Circumstances under which one legal authority will choose to enforce the judgment of another legal authority 2. Jurisdiction to Prescribe (Choice of Law)
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i. As a normative matter, each country has the right to regulate extraterritorial conduct that has significant local harmful effects in that country (per customary international law) (Goldsmith) ii. Does cyberspace necessitate revising Effects Principle? 1. Effects Principle is only coherent when border-crossing effects are on the margins, when Effects Map retains geographical coherence. Effects principle does not work in cyberspace, where most conduct does not produce effects within that territory. 3. Extraterritorial Regulation of Speech i. LICRA v. Yahoo!, 99-101 1. Facts: LICRA sues Yahoo.com for hosting auctions of Nazi paraphernalia. The auctions of Nazi memorabilia were open to bidders from any country, including France; the display of such objects, and the viewing of such objects in France, caused a public nuisance and was forbidden under French criminal law; Yahoo! Inc. was aware that French residents used its auction site, as it displayed French-language advertisements on its pages when they were accessed from computers in France. Court says Yahoo! has the means to prevent surfers in France from accessing these services and sites so it is not an insurmountable obstacle. Yahoo goes for lowest common denominator and yanks the auctions, rather than sacrifice growth. 2. Concerns: If websites are subject to the laws of all jurisdictions, would the legal norms of the least restrictive or most restrictive community prevail? 4. The Dormant Commerce Clause i. Definition: Prohibits discrimination aimed directly at interstate commerce and bars state regulations that, although facially nondiscriminatory, unduly burden interstate commerce. 1. No direct regulation of interstate commerce 2. No laws that favor in-state businesses over out-of-state businesses 3. No inconsistent regulation where consistent national regulation is required 4. The Pike test: facially neutral laws that burden interstate commerce must have a local benefit that outweighs the burden on interstate commerce. For a state to regulate the Internet, need to show a strong local benefit with at most, minor impact on interstate commerce. ii. American Libraries Association v. Pataki, 104-110: NY law criminalized sending harmful communications to minors. 1. Burden on interstate commerce: regulation affects Internet, which is everywhere. Chilling effect on speech everywhere outweighed NYs local benefit, so deemed unconstitutional.
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iii. Washington v. Heckel, 110-15: WA law prohibited misrepresentations in spam sent from or to a WA computer. Benefit is reducing costs on recipients of spam. Burden is imposing truthfulness. Also, compliance (truth) is easier than noncompliance (spoofing the address)! Benefit > burden, so constitutional. iv. Note on CDT v. Pappert, 117-18: Pennsylvania statute that blocked access to Internet sites carrying child pornography resulted in overblocking. Subscribers in other states found that the websites were not available to them when ISP removed offending IP address of the website from their message-routing database. Court held that the law violated the First and Fourteenth Amendments and the Commerce Clause of the Constitution 1. Note: Court also found that the law has minimal local benefit because child pornographers will find ways to evade it 2. Still easier to target intermediaries than end users v. Note on CAN-SPAM: No private right of action 5. Community Standards for Sexually Explicit Speech, 118-19 i. The Child Online Protection Act (COPA). 1. Definition of obscenity was originally found in the Miller test. a. Appeals primarily to the prurient interest as defined by community standards b. Patently offensive c. Lacks serious literary, artistic, political, or scientific (SLAPS) value. 2. COPA required all commercial distributors of "material harmful to minors" to restrict their sites from access by minors. "Material harmful to minors" was defined as material that by "contemporary community standards" was judged to appeal to the "prurient interest" and that showed sexual acts or nudity (including female breasts). This is a much broader standard than obscenity. 3. In ACLU v. Reno, the 3d Cir. said that the Internet is fundamentally different from traditional distribution of obscenity; COPA is unconstitutional because it forces the application of the most restrictive community standard to everyone. Very Post-ish. 4. In ACLU v. Ashcroft, the Supreme Court overruled the 3d Cir. Felt that nothing inherently wrong with having to abide by the most restrictive community standard. Adopted the Goldsmith reasoning the Internet isnt fundamentally different from traditional distribution, its just broader, and if you want to use such a broad communications medium, you have to abide by the most restrictive standards. c. Jurisdiction to Adjudicate 1. The United States Personal Jurisdiction Inquiry, 129-31
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i. Pennoyer. Geography is all. ii. Later, p/j based on either presence or consent. iii. International Shoe. Minimum contacts, traditional notions of fair play and substantial justice. iv. McGee. Specific personal jurisdiction. You can be sued in a jurisdiction based on a single limited contact with that jurisdiction if the suit is about that contact. v. Hanson v. Denckla. Have to have reached out to a state and availed yourself of its laws before you can be sued there. vi. World-Wide Volkswagen. Cant be subject to the laws of a jurisdiction due to the unilateral actions of another. vii. Calder v. Jones, 132-33: Personal jurisdiction where the brunt of the harm was felt. The most widely used test internationally. viii. Zippo: Sliding scale test 1. Interactive websites easy to get p/j. Businesses. 2. Passive websites No P/J 3. Intermediate websites in the middle. Some interaction, not commercial. Gaping hole. 4. Criticism of Zippo Test: a. Unclear how exactly one draws the distinction between passive and interactive b. What does it mean to examine the level of interactivity and commercial nature of the exchange of information? c. Why is the degree to which a website interactive relevant to the question of jurisdiction? 5. Courts have shifted away from Zippo towards a test based on Calder. 6. Alternative: Targeting approach d. Jurisdiction Based on Online Interaction 1. Analogies for translating minimum contacts analysis to Internet context: i. Is a website doing business in / purposefully availing itself of benefits of all states where it is accessible? ii. Or is a website located where its servers are located, with users coming to visit it there? 2. Young v. New Haven Advocate, 138-42 i. Facts: Lawsuit brought by Warden Young in VA for libel, claiming that the two newspapers implied he was a racist who advocated racism Young alleged that newspapers circulated the allegedly defamatory articles throughout the world by posting them on their Internet websites. Newspapers argued lack of P/J in VA. Court states that it is not relevant that newspaper websites could be accessed anywhere in the world but whether the newspapers intentionally directed their website content to a VA audience. ii. Rule: Look for whether the website is targeting towards a particular forum state through language, adverts on website
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1. Criticism: A publisher, particularly one carrying on the business of publishing does not act to put matter on Internet in order to reach a small target. (Dow Jones) 3. uBid v. The GoDaddy Group, 142-45 i. Rule: Effects test 1. D expressly aims its actions to cause harm to the P in forum state 2. D knows harm to P is likely to result from its actions ii. Facts: uBID claimed GoDaddy violated the Anti-Cybersquatting Consumer Protection Act by registering domain names confusingly similar to uBIDs trademarks and domain names. uBID asserted GoDaddy tried to profit from uBIDs marks and took advantage of web surfers by selling advertising for confusingly similar websites. The district court dismissed the complaint for lack of personal jurisdiction. uBID appealed, and the Seventh Circuit Court of Appeals analyzed whether the district court had personal jurisdiction of GoDaddy. 1. GoDaddy is incorporated and headquartered in Arizona. GoDaddys computer servers are in Arizona. Most of its offices and employees are located in Arizona. 2. GoDaddy automatically provides services to customers from IL and there is no evidence to show that the company expressly aims it conduct at this state. Court places a lot of emphasis on registrations that are automated. 3. Existing contracts with customers in IL does not demonstrate purposeful availament to the forum state. 4. The court of appeals agreed that the district court correctly found that GoDaddy was not subject to specific jurisdiction in Illinois. 4. Berman, The Globalization of Jurisdiction, 148-50 i. Conceptualizes legal jurisdiction in terms of social interactions that are fluid processes not motionless demarcations frozen in time and space. ii. Cosmopolitan pluralist conception of jurisdiction: courts would take seriously the multiple definitions of community that might be available for exercise of jurisdiction. e. Judgment Recognition and the Power of Persuasion, 151-52 1. Mere assertion of jurisdiction does not necessarily entail the ability to enforce the judgment reached. 2. DNS i. Registry: An entity controlling a list of domain names. Verisign, Educause. ii. Registrar: Someone who accepts registrations to go on that list. Joker, GoDaddy. iii. Registrant: Someone registering a domain name. Clownpenis.fart.
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3. Ways to attack DNS infringers: i. Lanham Act 1. 15 U.S.C 1125(a) TM infringement - Any person who, on or in connection with any goods or services, . . . uses in commerce any word, term, name, symbol, or device, . . . or any false designation of origin, . . . which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person shall be liable in a civil action . . 2. Have to show likelihood of confusion or mistake. Difficult when Coke the soft drink maker sues Coke the paper maker. 3. Personal jurisdiction can be difficult to get. ii. Trademark dilution suit 1. Same elements as above, but replace likelihood of confusion with mark has to be famous. Makes it easier to knock out someone elses use. 2. Personal jurisdiction is difficult to get iii. Anticybersquatting Consumer Protection Act (ACPA) 1. 15 U.S.C. 1125. a. (d)(1), in personam suits. Have to be able to actually get in personam jurisdiction somewhere in the US. Good penalty provisions but have to show bad faith. Bad faith cant be found if the person believed his use was fair! b. (d)(2), in rem suits. If you cannot get in personam jurisdiction anywhere in the US, can sue where the registry or registrar are located. For .com, E.D.Va. Remedy is limited to cancellation or transfer of the domain name. c. If youre doing this, make sure to get the registrar to lock the name. Preferably, deposit it with the court. d. Be prepared to show bad faith in an in rem suit. Not technically required but a lot of judges will require it, since its needed for an in personam suit. iv. Uniform Dispute Resolution Protocol 1. Elements of a UDRP case: a. Registrants domain name is confusingly similar to the complainants trademark b. Registrant has no legitimate rights in the domain name c. Registrant has registered the domain name in bad faith
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2. Have to select an arbiter: WIPO, National Arbitration Forum, or ADNDRC. Select for success rates for complainant, costs, 3. Registrant can always go to court after a UDRP proceeding IN HIS OWN COUNTRY! If youre trying to get a domain name away from someone in another country, file an ACPA suit or youll find yourself in court somewhere you do not like. Not much finality to a UDRP case, but the default judgment rate is very high. 4. blahblahsucks.com cases tend to go either way under the UDRP. 4. Yahoo! v. LICRA, 152-57 i. In Response to LICRA ruling, Yahoo! filed a complaint in federal court in California seeking a declaratory judgment that the French courts orders are neither cognizable nor enforceable under U.S. laws. ii. Comity: the extent to which the U.S. or any other state honors the judicial decrees of foreign nations is a matter of choice, governed by the comity of nations. iii. Principle of comity outweighed by obligation to uphold the First Amendment: The court chooses not to enforce a foreign order that violations First Amendment protections. iv. District court does not question the jurisdiction of the French court to prescribe. Decision ultimately dismissed for lack of PJ over LICRA/lack of ripeness. 5. Citron v. Zundel, 159-63 i. Issue: Whether it is a discriminatory practice to post material on a website if the material is likely to expose a person to hatred or contempt. ii. 13(1) of Canadian Human Rights Act restricts hate speech that is transmitted over telephone lines. Court finds it inappropriate to say that hate propaganda is licit because it has found expression through the Internet. iii. Court cannot prevent the material on Zundels site from being disseminated online but finds that there is a symbolic value in public denunciation of the action.
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Chapter Four: Problems of Public versus Private Regulation

a. Private Regulation
1. Centralized Standard Setting Bodies, 169-72 i. Weiser, Internet Governance, Standard Setting, and SelfRegulation, 169-72 1. Whether or not we admit it, the Internet did not develop without government influence and, given its importance, government cannot afford to ignore the limits of standardsetting bodies as a form of self-regulation 2. Larger the community, the more difficult it is to maintain a commons model: The government should develop a principled framework for when to mandate open, interoperable standards that have yet to be instituted by private standard-setting bodies 3. Substantial private ownership and control in cyberspace, unchecked by Constitution 4. In cyberspace, one uses privately owned browsers to access privately owned online service providers, with messages traveling over privately owned routers to privately owned websites. 5. And the governance of the domain name system is currently in the hand of a private corporation ICANN 6. Internet has end to end architecture principle a. Commitment to openness b. Modularity and protocol layering c. Shifting of intelligence and control to the edge of the network 7. Two particular concerns for courts and anti-trust enforcers to guard against: a. Use of standard setting bodies to freeze technology, either through delay or refusal to certify the new technology b. The non-disclosure of information that enables a company to control key proprietary technology used in a purportedly open standard ii. How to facilitate internalization of negative externalities 1. Govt regulation - Government will take into account aggregate effects and manage resources efficiently. 2. Private property rights - Government clearly defines property rights and facilitates market exchanges. 3. Collective regulatory systems - managed access property regime 2. Decentralized Collective Action, 173
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i. Media3 Technologies v. Mail Abuse Prevention System, 173-76 (Bottom-up private regulation) 1. Facts: Before agreeing to host a Web site, Media3 follows the standard industry practice of requiring its customers to sign an Acceptable Use Policy for conducting business on the Internet. This policy contains provisions that are standard in the industry, including an anti-spam provision. However, Media3 policy did not prohibit its hosted Web sites from providing other services that could be used by a spammer; these include sales of email address lists and programs that can harvest similar lists from the Internet. However, only a few Media3 customers do this. MAPS is a non-profit Internet service provider based in California with the stated purpose of combatting spam. It does this through its Real-time Blackhole List, a list of Web sites that, MAPS concludes, send or support sending spam. A Web site that gets on MAPS's list is generally blocked by subscribers to the MAPS list from sending any email to the subscriber's system. In May 2000, MAPS learned that Media3 was hosting ten spamming Web sites on one of its Class C networks, and told Media3 to stop those activities, or it would blacklist all Web sites on that Class C network. Media3 refused, and the whole network was blacklisted. Media 3 sued for preliminary injunction. 2. Court held that a preliminary injunction is not appropriate because there was no business defamation MAPS statement that Media3 was spam-friendly was true. Further, Media3 had not demonstrated any actual or imminent loss of business by including non-spamming Web sites on its list. ii. Lessig, The Spam Wars, 176-77 1. What problems does Lessig identify with private regulation? a. Illegitimate, unaccountable law-making: The real problem is that vigilantes and network service providers are deciding fundamental policy questions about how the Net should work and they are unaccountable to the public b. But, judicial review may not be any better. Private technical ways of resolving conflicts on the Internet have worked in the past. 2. His solution: Net has thrived because decisions made from the bottom-up but wars also thrive under these circumstance so what is needed is an institution that can mesh the best of the bottom up culture with a top down perspective. iii. Post, Of Black Holes and Decentralized Law-Making in Cyberspace, 178-81
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1. Norms are powerful determinants of behavior. a. RBL (MAPS system) is a textbook example of an informal, decentralized, norm creation process, whereby the norm is that spam is bad and must be sanctioned. 2. No one with the authority to build the Internet could have done so 3. Decentralized processes are fundamentally and irreducibly, unpredictable. Internet is a decentralized emergent system and we cannot and need not know what will ultimately emerge from this organic system of action and reaction 4. What are the alternatives to MAPS' private speech regulation and how do such alternatives compare? a. State regulation may support public values such as free speech - Heckel b. Private trespass to chattels claim Hamidi c. State regulation of spam - Heckel 3. Regulation by Contract, 183 i. ProCD v. Zeidenberg, 184 1. Issue: Must buyers of computer software obey the terms of a shrinkwrap license? Shrinkwrap licenses are enforceable unless their terms are objectionable on grounds applicable to contracts in general 2. Zeidenberg's pre-emption arguments a. Section 301 of Copyright Act preempts any legal or equitable rights under state law that are equivalent to any of the exclusive rights within the general scope of copyright [such as right to reproduce]. Here Z says i. Invalid contract 3. Court disagrees: Federal copyright law, although it prohibits states from providing additional copyright protection, does not preempt contracts from governing the use of copyrighted works. Courts have often been willing to enforce contractual provisions even when they potentially conflict with federal copyright law. 4. Contract terms were inside the box and provided the right to return the software for a refund if the user objected to the terms. Court says it is not practical to put the terms on the outside where it replaces other useful information. 5. What if contract law provisions restrict users' fair use rights? a. Bowers v. Baystate - no reverse engineering, page 186, n.1 b. NY v. Network Associates, p. 187 n.1 i. McAfee VirusScan diskette: "Consumers do not have the right to publish reviews concerning the software."
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ii. Courts are unlikely to enforce because it is contrary to public policy on fair use. c. "Someone who found a copy on the street would not be affected by license." ii. Specht v. Netscape Comm. Corp., 187-93 1. P's substantive claims - use of smartdownload transmitted info about their downloads to Netscape. Violation of privacy. 2. Exception to avoiding terms of a contract on grounds that consumer failed to read before signing: a. When the writing does not appear to be a contract and the terms are not called to the attention of the recipient. In such a case, no contract is formed with respect to the undisclosed term. b. In this case, browsewrap license, which is set forth such that the consumer as to scroll down the home page to find and read. 3. Plaintiffs apparent manifestation of consent was to terms contained in a documented whose contractual nature was not obvious. In fact, P was unaware that D intended to attach license terms to the use of SmartDownload. 4. Holding: existence of license terms on a submereged screen is not sufficient to place consumers on inquiry or constructive notice of those terms 5. Distinguish from ProCD: User in ProCD was confronted with the license terms every time he ran the software on his computer. 6. Policy concern: Sites more likely to insist that users scroll down and click I agree, which slows down users, lessens the efficiency and speed of online activity. Courts could have achieved the same end by refusing to enforce unconscionable contract terms rather than resting enforcement decisions on formal or constructive notice. iii. Mass market licenses: In order 1. Shrinkwrap with all terms visible under plastic 2. Shrinkwrap with notice that additional terms are inside box with right to return 3. Click-wrap with link to terms, consent to specific knowable terms by clicking 4. Browse-wrap with terms available on interior pages (consent to available terms by continuing to use website or downloading software) 5. Browse-wrap with modifiable terms iTunes 6. Criticism: a. ALL of these have problems of being unbargained for and imbalance in bargaining power and take it or leave it. Meeting of the minds is increasingly illusory.
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iv. Radin, Regulation by Contract, Regulation by Machine, 194-99 1. EPSERS - efficacious promulgated superseding entitlement regimes. Superseding because they replace the law of the state with the law of the company; promulgated because they are developed and enacted by the company without negotiation or input from the recipient and regimes because they are widespread governing many millions of people. 2. Radin is concerned that EPSERS: a. No meaningful value of taking into account public values in a private regulatory regime. Public ordering protects public values better. b. Propertization for the firms private benefit has superseded the state regime of property for the public benefit c. No accountability. Not subject to democratic input or debate not arrived by at balancing conflicting interests against one another. 3. What regulatory/judicial oversight exists for private ordering? a. Contract and property law regimes. b. Procedural checks c. Substantive checks? Courts can strike down certain terms as unconscionable and public policy d. 301 - pre-emption claims v. Note on the Facebook Controversy, 200-2 1. Gives opportunity to comment and vote. 2. Affected stakeholders? a. That may work for Facebook but not every clickwrap agreement. b. We can't have mini townhall meetings on all of these issues. c. Facebook is a private regime that tries to avoid real public regulation. It also gives the appearance of a democratic regime. d. No accountability - FB is ultimately in-charge
b. Public Regulatory Responses to Private Regulation, 202

1. Applying Constitutional Norms to Private Entities, 203-5 i. State action doctrine: when the conduct of a private party is fairly attributable to the government for constitutional purposes. 1. When the private party is performing a public function 2. When the points of contact between the government and private party to assess whether there is sufficient nexus between the two to justify imposing constitutional restrains on the private actor
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ii. What obligations can/should constitutionally be imposed on private regulators of speech? 1. Town squares/shopping malls / public forums. Consider the cases that follow in reference to online activity. Are online search engines, FB pages, bulletin boards, listservs and chatrooms public spaces where constitutional rights and norms prevail? a. Marsh If you look like the government, you will get treated like one. Established right of religious organizations to leaflet in a town that was wholly owned by a private entity because it had all the characteristics of any other American town. b. Logan Valley - Logic of Marsh applied to a shopping mall, which is the functional equivalent of a town business district and should therefore permit political leafleting and peaceful protest c. Hudgens Overruled Logan Valley and determined that shopping malls are, as private entities, not subject to First Amendment norms. d. PruneYard May mean that governmental efforts to open private property to achieve greater public access may be constitutionally permissible. i. Facts: California State had a provision protecting speech and leafleting in privately owned shopping centers. The shopping center contended that such open access mandate constituted an unconstitutional taking of private property without just compensation. ii. Holding: Court distinguished previous shopping mall decision and stated that states can exercise their police power to adopt reasonable restrictions on private property so long as it is not a taking without just compensation. Court stated that not every destruction or injury to property by governmental action is a taking. e. Does Pruneyard extend to private property such as radio station, newspaper, cable operator, or ISP, who may have their own First Amendment rights? Would PruneYard extend to state regulation of FB prohibiting it from making content or viewpoint based restrictions on speech? 2. TV/Radio broadcasters (Red lion) 3. Newspapers (Tornillo) 4. Cable TV operators (Turner) 5. Dominant search engines (Google) - Search neutrality regulation
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6. Broadband providers (Comcast/Verizon) - Net neutrality regulation. 2. Legislative Responses to Private Regulation, 205-7 i. Red Lion Broadcasting Co. v. FCC, 207-11 (Fairness doctrine in broadcasting) 1. Rule: The First Amendment permits a federal agency to formulate rules to allow persons defamed or potentially defamed access to equal time to respond and a fairness standard for editorial speech by broadcast radio stations. Seventh Circuit reversed. a. It does not violate 1A to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community. 2. FCC Fairness Doctrine Regs a. "Equal time rule" and "response to personal attack" rule: Require stations to provide notification and opportunity to respond when during the presentation of views on a controversial issue of public importance an attack is made upon the honesty, character, integrity, or like personal qualities of a person or group. 3. Red Lion Broadcasting Co. challenged these rules as unconstitutionally infringing their right to freedom of speech and press. 4. SCOTUS' medium specific analysis of broadcast medium/constitutionality of regs - Right of the viewers and listeners and not rights of speakers is paramount here. a. Contingent right of access as opposed to Pruneyard's general right of access 5. Characteristics of broadcast medium credited by SCOTUS in upholding regulation a. The courts reasoned that the scarcity of the broadcast spectrum, which limited the opportunity for access to the airwaves, created a need for the Doctrine. However, the proliferation of cable television, multiple channels within cable, public-access channels, and the Internet have eroded this argument, since there are plenty of places for ordinary individuals to make public comments on controversial issues at low or no cost. 6. Public policy concerns: a. Purpose of 1A is to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail
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b. Right of public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences c. Without government regulation, broadcasters would have unfettered power to make time available to highest bidders and to communicate only their views d. Criticism: Broadcasters may be forced to self-censor and restrict coverage of controversial public issues altogether. But Government can also compel licensee to give adequate and fair attention to public issues if that happens. 7. What is the implication for net neutrality regulation of broadband service providers? ii. Miami Herald Pub. v. Tornillo, 212-16 (newspaper) 1. Issue: whether a state statute granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper violates the guarantee of a free press 2. Holding: The Court overturned a Florida state law requiring newspapers to allow equal access to political candidates in the case of a political editorial or endorsement content. 3. Public policy concern: a. Medium specific analysis: Marketplace of ideas is today a monopoly controlled by the owners of the market: Power to inform the public now in the hands of a few b. No right of reply iii. Note on Must-Carry Requirements, 217 1. Cable systems: requirement that a cable operator carry all local broadcast television signals within the cable systems service area. Courts invalidated different versions of such regulations under First Amendment grounds. In 1992, Congress imposed these rules by statute. 2. Distinguish must-carry from fairness doctrine in Red Lion and from the right of reply in Tornillo. a. This is not an issue of fairness or equal space for differing points of view. The must-carry rules in Turner are content neutral in application b. Must-carry rules for cable will not force operators to alter their own messages to respond to the broadcast programming they are required to carry c. Cable operator exercises far greater control and monopoly over the medium than a newspaper in any locale. iv. Turner Broadcasting System v. FCC, 217-28 1. Facts: The 1992 Cable Television Consumer Protection and Competition Act required cable television systems to set
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2.
3.
4.
5.
aside some of their channels for local broadcast television. In 1994, the Supreme Court held that these must-carry provisions pass constitutional muster. (See Turner Broadcasting v. FCC, decided June 27, 1994). The Court then remanded the case to determine whether Congress had adequate factual support for its conclusion that the mustcarry provision is necessary. A special three-judge district court held that there was sufficient evidence that the mustcarry provision furthered important governmental objectives and that the provision was narrowly tailored to promote those interests. The broadcasters appealed directly to the Supreme Court. Issue: Is Section 4 and 5 of the "must carry" law an unconstitutional intrusion on cable operators' editorial autonomy, a form of Government-compelled speech that violates the First Amendment? Holding: No, the Court applied intermediate level scrutiny to the content-neutral restrictions and held that Congress "has an independent interest in preserving a multiplicity of broadcasters." Court said that must-carry rules are not subject to strict scrutiny and required cable companies to carry local broadcast stations since (a) theyre monopolies and (b) theyre just conduits that dont exercise editorial control. Policy rationale: a. No content based restriction on speech here. Congress is merely trying to protect broadcast television from competition b. Do not leave up to the marketplace because it is increasingly monopolized and controlled by a few companies c. The outcome supported Congress's right to judge what approach would best insure a competitive communications marketplace. Under Turner: a. Government may regulate new speech sources so as to ensure access for viewers who would otherwise be without free programming b. Government may require owners of speech sources to provide access to speakers c. Government must do this on a content-neutral analysis d. Government may support its regulation by invoking such democratic goals as the need to ensure an outlet for exchange on matters of local concern.
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6. Lessons Learned from Turner et al for Net Neutrality regulation a. Regulation prohibiting broadcast service providers from discriminating against content b. Standard of scrutiny: intermediate level scrutiny for content-neutral restrictions on speech but strict scrutiny if neutral c. Government interest in compelling must carry by BSPs to provide for free flow of information and marketplace of ideas 7. Search King v. Google, 230-32 a. Plaintiff Search King operates the PR Ad network ("PRAN"). PRAN acts as a broker, placing advertisements for its clients, and links to client web sites, on the web sites of third parties that are themselves highly ranked on Google in response to various search terms. Search King advertises its PRAN service on its own web sites, which were, at one time, highly ranked on Google's search engine. Plaintiff's sites received these rankings as result of Google's application of its site ranking algorithm, which gave plaintiff's pages a high 'page rank.' The 'Page Rank' "represents the significance of a given web page as it corresponds to a search query." Google subsequently lowered the Page Rank of plaintiff's sites, claiming that Search King's sale of advertising space on highly ranked web sites "undermine[d] the integrity of Google's Page Rank system." b. The Page Rank Google assigns to a site constitutes an opinion protected by the First Amendment. As long as that statement was not "provably false" it was privileged and not actionable. 3. Regulation of Internet Access Providers: Network Neutrality, 251-54 i. Internets end to end principle acts as a limitation on the property rights of network owners since it separates infrastructure from content and all data is treated equally by carriers over the infrastructure. However, this architecture is not law and subject to change from sources trying to restrict end use and end uses. ii. Cause for concern: proponents of net neutrality fear that without any common carrier or open access restrictions in place, broadband providers will begin to regulate Internet use and engage in a variety of discriminatory practices. iii. Common carriage regulations:
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iv.
v.
vi.
vii.
1. Affirmative obligations imposed on certain private entities engaged in transportation, communications, or other important public service functions such as railroads, motorcoaches, ferries, telegraph operators, telephone operators, to provide nondiscriminatory service to all customers, to facilitate the free flow of information and commerce, without censorship or discrimination. Communications Act: 1. Telecommunications services: Telecommunications service providers offering of telecommunications* for a fee directly to the public: a. the transmission, between or among points specified by the user, of information of the users choosing, w/o change in the form or content of the information b. Regulated as common carriers under Title II 2. Information services - the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications. a. Not subject to common carriage regulation b. Lightly regulated 3. Cable services a. Subject to regulation by local franchising authorities b. Municipalities can impose open access/network neutrality requirements Brand X decision: FCC rules that cable broadband providers do not provide telecommunications services so they are exempt from common carriage requirements. FCC subsequently lifts common carriage requirements from all other broadband providers. Broadband providers are under no obligation not to discriminate. Post Brand X: 1. Comcast secretly degraded/blocked legal peer to peer file sharing traffic (BitTorrent) in 2007, which prompted FCC to renew efforts to impose net neutrality regulations. FCC censured Comcast but Comcast sued, claiming FCC had no authority to censure it. The DC Circuit agreed and FCCs censure of Comcast struck down by courts in 2010. In the wake of Brand X decision and FCCs deregulation of broadband, push for net neutrality regulation/legislation to: 1. Prohibit broadband providers from discriminating against content or applications in the form of a. Blocking b. Degrading *** slowing down disfavored traffic, a la Iran c. Prioritizing (their own or affiliated content)
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2. 2010: FCC proposed, then abandoned, plan to treat BSPs in their transmission capacity as common carriers (Third Way) a. Dec. 2010: major but weakened net neutrality regulation issued by FCC. Effective late November 2011 viii. New Net Neutrality Rules 1. Wireline/fixed BSPs: no blocking of any lawful content, apps, services, subject to reasonable network management + no unreasonable discrimination in handling traffic 2. Wireless/mobile BSPs: no blocking of lawful content/apps that compete with wireless BSPs voice/video services, subject to reasonable network management *** no no unreasonable discrimination in handling traffic mandate 3. Both: transparency in network management required 4. Unclear as to what counts as reasonable network management as opposed to unreasonable 5. Challenges: Broadband providers like Verizon will argue that FCC is without authority to regulate them and that FCC rules violate their rights. Advance Verizons best legal arguments: a. Verizon has characterized the provision of broadband Internet access as first and foremost the microphone through which broadband Internet access providers speak b. Verizon has claimed that Verizons position under the First Amendment as a broadband Internet access provider is no different than a newspaper publishers. c. Assess these claims i. Verizon is saying that the regulations are constitutional on 1A grounds because they violate Verizons right to free speech under Tornillo: We are like a newspaper. Even scarcity under Tornillo is not enough to justify 1A violation. ii. If you are Verizon, you have to distinguish Turners must-carry provisions. Can argue that it only applied to one-third of the pipeline while the regulations apply to all. 1. Establish that the regulations are somehow content neutral as opposed to Turner where content was local content
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a. This helps FCC, since lower standard of scrutiny is applied on content neutral restrictions. iii. Takings argument: We get to say what happens in our pipelines (See Lloyd). d. FCC reply: i. Newspapers create their own content so bad analogy. BSP is more like a toll road. ii. Analogize Red Lion limited broadcast spectrum allows for regulation in the public interest due to economic scarcity and physical barriers iii. Turner applies because BSPs are like gatekeepers with control over content, that justifies bottlenecking iv. Must carry regulations are content-neutral, and subject to less scrutiny. v. No takings: Pruneyard 6. Free Press has claimed that net neutrality regulations distinction between wireline and wireless broadband providers is without legal foundation and is arbitrary and capricious: a. Wireline/fixed BSPs: no blocking of any lawful content, apps, services, subject to reasonable network management + no unreasonable discrimination in handling traffic b. Wireless/mobile BSPs: no blocking of lawful content/apps that compete with wireless BSPs voice/video services, subject to reasonable network management *** no no unreasonable discrimination in handling traffic mandate c. Both: transparency in network management required d. What are wireless BSPs permitted to do? i. Wireless broadband provider would be permitted, for example, to cut a deal with YouTube that allowed its videos to stream faster than a video on Hulu so long as the provider somehow disclosed to its subscribers that it was doing so. e. Assess Free Presss claim i. Takings argument: No takings per Pruneyard 4. Concluding Case Study: Internationalization of Legal Governing the Domain Name System, 263 i. An Introduction to the Domain Name System, 264 Regimes:
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1. Registry one for each TLD. VeriSign is registry for .com. Maintains and operates a unified Registry Database, which contains all DNs registered by all registrants and registrars in .COM 2. Registrars retail side authorized to register domain names in a particular TLD on behalf of users. Many registrars per TLD. 3. Registrants you and me. Those with right to use a particular dn like amazon.com 4. What happens when you type in an Internet address, such as www.amazon.com? a. The Internet works by requiring that each computer connected to the Internet have a unique numerical address (IP address 123.45.67.89). b. In order for your request to access amazon.coms content to be routed properly, your computer must be able to find the unique numerical address corresponding to www.amazon.com. c. When you type in www.amazon.com, you thereby request a copy of the amazon.com home page to be sent to your computer. d. Your message requesting a copy of amazon.coms home page first stops off at a computer known as a Domain Name System server (DNS server), which is usually maintained by your ISP. e. The DNS server reads from right to left. i. First it reads .COM a top level domain (TLD) ii. Each TLD name server provides the information necessary to direct DN queries to the second level DN server responsible for the DN in question 5. VeriSign (successor to NSI), as the registry for all DNs ending in .COM, is the single entity that maintains all official records worldwide for registrations in the .COM top level domain. a. VeriSign as the .COM registry is responsible for directing DN queries regarding the amazon.com second level domain to the appropriate second level domain name server i. This second level domain name server matches the DN amazon.com with its numeric IP address b. VeriSign is the exclusive registry for all DNs ending in .COM
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c. It maintains and operates a unified Registry Database, which contains all DNs registered by all registrants and registrars in .COM i. But many other entities are registrars for DNs ending in .COM, which handle the retail side of DN registration d. Once it receives the numerical IP address for AMAZON.COM, it places the address into your message and sends it on its way. 6. Registrars: a. Registrars allow individuals to register second level domains in .COM on a first come, first served basis. b. Registrars maintain records containing the name and address of the DN registrant, contact information for each DN registrant, the DN itself, the IP address for the DN, and the expiration date of the DN. c. Va. Corporation has major role in DNS system. d. Relevance for PJ and TM/DN disputes? Can claim PJ where registrar is located in order to bring TM/DN suits 7. DNS Management a. Ways to Attack DNS Infringers (Page 13) b. Domain Name System used to be managed by NSF and Jon Postel c. 1992: NSF farmed out this work to NSI for 5 years d. Dot com boom. 1994/95. Why is private company NSI responsible for DNS? pp. 268 e. US govt decided to recognize a new non-profit corp. to assume responsibility for DNS (White Paper p. 270) that would equitably represent interests of various stakeholders across global Internet community: ICANN ii. ICANN, 266 1. 1998: Internet Corporation for Assigned Names and Numbers is born 2. In 1998: Internet Corporation for Assigned Names and Numbers (ICANN), a private corporation, was created and charged with DN coordination/DNS management. 3. Established via memo of understanding with U.S. Department of Commerce privatization of Internet. 4. Agreement charges ICANN with oversight responsibility for technical coordination of domain names and with assuring bottom-up coordination, market competition and global representation. Org. chart p. 274 5. Agreement with DOC also charges ICANN (based on consultation with WIPO) with job of:
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a. establishing system for resolving certain TM/DN conflicts; b. creating system for accrediting DN registrars; and c. determining whether to add new TLDs generic and country code. 6. In 1999, ICANN adopted the Uniform Domain Name Dispute Resolution Policy (UDRP) to resolve disputes between TM owners and DN holders. 7. All DN registrars must be accredited by ICANN and must adopt UDRP. 8. Anyone registering a DN through an accredited registrar is bound by UDRP iii. UDRP 1. Designed to provide quick and inexpensive procedure to be used by TM owners around the world to address TM/DN conflicts. a. Contra TM litigation, which can be slow and expensive. 2. Rule: For TM owner/Complainant to remove DN from DN holder, Complainant must establish: a. that Complainant has common law or federal TM rights in DN, b. that DN is identical or confusingly similar to the TM, c. that DN holders registration and use of DN was in bad faith, and d. that DN holders registration and use was without rights or legitimate interests. 3. Remedy: Only remedy is cancellation of DN or transfer of DN to complainant 4. How does UDRP get around jurisdictional issues: a. Invokes contractual consent of the registrant to resort to the UDRP proceedings in case of a dispute with TM owner (power to prescribe) b. Limits remedial powers to the domain name databases (power to enforce) c. Compare to ACPA, which resolves jurisdictional issues by providing for in rem jurisdiction over the domain name itself 5. Burlington Coat Factory v. Smartsoft a. What must be shown for TM owner to take away DN from DN registrant? See Rule above. b. TM owner vs. domain name registrant. Sounds like trademark law but it is not a law. Promulgated by ICANN. 6. UDRP and Free Speech
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a. If UDRP were, e.g., federal legislation in United States, its passage/implementation would be checked by i. substantive check of 1A/independent judicial review + ii. procedural checks embodied within legislature. b. Other countries also impose checks on TM legislation. 7. ICANN enjoys power to establish policies for resolving speech-related disputes between TM owners and DN holders a. Implemented via adoption of Uniform Dispute Resolution Policy governing removal/transfer of ownership of domain name to trademark owners 8. Defenses to Cyber-Squatting a. Show that the domain name owner has rights or legitimate interests to the domain name. If any of the following circumstances can be shown by the domain name owner to exist, the domain name owner should win the UDRP arbitration: i. Before any notice to the domain name owner of the dispute, the domain name owner's use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or ii. The domain name owner (as an individual, business, or other organization) has been commonly known by the domain name, even if the domain name owner has not acquired any trademark or service mark rights; or iii. The domain name owner is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. iv. Anticybersquatting Consumer Protection Act (ACPA): Domestic TM Law to Address DN/TM conflicts 1. Intended to give trademark and service mark owners legal remedies against defendants who obtain domain names "in bad faith" that are identical or confusingly similar to a trademark or service mark. If a mark is a famous mark, the same remedies are available if the domain name is identical to, confusingly similar to or dilutive of the mark. 2. 1999: TM owners are concerned about inability of US courts to secure PJ over out-of-state and foreign DN registrants who register DNs similar to their TM
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3. Compare uBid v. GoDaddy case p. 142 a. Dct: No PJ over GoDaddy DN registrar b. PJ even harder to establish over foreign registrant of infringing DN 4. TM owners seek alternative to exercise of traditional PJ 5. Personal Jurisdiction courts power to apply judicial process to defendant, jurisdiction to adjudicate over D. Two types: a. in personam jurisdiction over and based on the individual defendants contacts with the forum state. When difficulties arise in courts assertion of in personam jurisdiction over D in DN dispute, assert in rem jurisdiction over DN itself. b. In rem jurisdiction jurisdiction to adjudicate over D based on Ds property located within the forum state. ACPA authorizes exercise of in rem jurisdiction over domain name itself as property: i. in judicial district where DN registrar or registry is located ii. So the DN can form the basis for jurisdiction where there is insufficient basis for jurisdiction over the D personally. 6. The plaintiff must prove the following elements: a. The Defendant has a bad faith intent to profit from that mark, including a defendant name which is protected as a mark; b. registers, traffics in, or uses a domain name that-i. in the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to that mark; ii. in the case of a famous mark that is famous at the time of registration of the domain name, is identical or confusingly similar to or dilutive of that mark; or iii. is a trademark, word, or name protected by reason of 18 U.S.C. 706 (the Red Cross, the American National Red Cross or the Geneva cross) or 36 U.S.C. 220506 c. Remedy: The Act authorizes a court to order the forfeiture or cancellation of a domain name or the transfer of the domain name to the owner of the mark. In lieu of actual damages, the plaintiff may elect statutory damages and the court has discretion to award damages of not less than $1,000 and not more than $100,000 per domain name, as the court considers just. 15 U.S.C. 1117(d).
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i. The remedies in an in rem action for cybersquatting are limited to a court order for the forfeiture or cancellation of the domain name or the transfer of the domain name to the owner of the mark. Money damages are not available. 7. When Would a Trademark Owner Sue Under the ACPA Instead of Filing a UDRP Complaint? a. In general, a trademark owner will sue under the ACPA when the trademark owner seeks any remedies in addition to canceling or transferring the domain name. For example, if the trademark owner seeks money damages in addition to the domain name, the mark owner must bring an ACPA lawsuit. b. Another reason to use the ACPA is to avoid the time and expense of a UDRP action when the trademark owner suspects the cybersquatter would "appeal" the results of the UDRP action. After an adverse ruling in a UDRP action, the cybersquatter has ten days within which to bring a lawsuit to prevent the transfer or cancellation of the domain name. If you think the cybersquatter will challenge an adverse UDRP ruling, it makes sense to skip the procedure and go straight to court. 8. Cable News Network v. Cnnews.com, 286-89 a. Facts i. CNN sues Maya, Chinese company for registration of CNNEWS.COM ii. Maya registered CNNEWS.COM with NSI, Virginia company then acting as DN registrar for .COM iii. CNN asserts jurisdiction over Maya in VA under ACPAs in rem provisions b. Statutory pre-requisites for ACPAs in rem provisions? i. Where is action brought? Virginia ii. Would in personam PJ exist over Maya? 1. Targeting analysis? See Young v. New Haven and ALS Scan p.141 2. What is CNNEWS target audience? People in China 3. Business transacted outside of China? None iii. Constitutional pre-requisites for jurisdiction over domain name? 1. True in rem where court adjudicates property rights corresponding to the
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property in question for every potential rights holder 2. Quasi in rem I where court allocates property rights against particular named persons e.g., action to quiet title against another individuals claim 3. Quasi in rem II where court address rights of persons in a thing but underlying claim is unrelated to the property that provides basis for jurisdiction *** must undertake min. contacts analysis a. Shaffer v. Heitner: jurisdiction based on location of stock shares invoked to compel appearance of owners in unrelated matter 9. GlobalSantaFe v. Globalsantafe.com, 289-300 a. Facts: Plaintiff prevailed in an in rem suit under the ACPA against a domain name owned by a Korean individual, and the court ordered VeriSign, as the .com registry, to transfer the domain name to plaintiff. Plaintiff then obtained an amended order directing both VeriSign and the Korean-based registrar to transfer the domain name. The domain name owner later obtained an injunction from a Korean court barring the Korean registrar from transferring the domain name to plaintiff. As a result, plaintiff sought a second amended order from the U.S. court directing VeriSign to cancel the domain name until the name was transferred to plaintiff. b. In rem actions under the ACPA is proper only if there is no P/J over the registrant in any district: The court initially found that ACPA jurisdictional requirements were met and that the defendants registration of the domain name clearly violated the ACPA. Accordingly, plaintiff was entitled to either transfer or cancellation of the domain name under 15 U.S.C.S. 1125(d)(2)(D)(i). c. No UDRP action because not binding and Park could appeal d. Regarding plaintiff's requested remedy of cancellation, the court discussed three principal means of canceling a domain name: i. the registrar issues a delete command to the registry,
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ii. placement of the domain name in REGISTRYHOLD status by the registry by removing the name from the TLD zone file, and iii. the deletion of registration information in the registry database and removal of the domain name from the TLD zone file unilaterally by the registry. e. Comity did not provide grounds for abstention because the Korean and U.S. proceedings were not concurrent, the Korean court proceeding was intended to frustrate the judgment of the U.S. court, and the judgment supported significant U.S. public policy. f. The court therefore ordered VeriSign to disable the domain name until it was transferred to plaintiff by eliminating the currently associated domain name server IP numbers from the TLD zone file. g. Jurisdiction in VA. Is this case different from CNNews case in terms of substantive basis for jurisdiction? i. Maya never targeted VA BUT Mr. Park does infringe copyright intentionally ii. CN case had VA registry and registrar. Mr. Park has Korean entity as his registrar. He can't help it if the only registry is in VA. h. How could Park have avoided jurisdiction in the U.S.? i. He should have stayed away from .com TLD and done .kr country level domain name. ii. How and by whom should conflicts btw TM owners and DN holders from different countries be resolved? 1. US courts, applying traditional and new TM laws a. Jurisdiction problems and solutions (ACPA) 2. ICANN a. Applying the UDRP b. Accountability and representation issues c. Protection of fundamental (U.S.) rights/free speech?
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III. Unit Three: How to Regulate, 301-3
Chapter Five: Problems of Technological Regulation, 303
Legal
Versus
a. Sec. 106 a. Subject to section 107 (fair use) and other limitations. . . owner enjoys exclusive right to : (1) to reproduce; (2) to prepare derivative works/adaptations based upon the copyrighted work; (3) to distribute copies . . . to the public. b. Traditional rights Copyright Act Basics, Course Supp. 25-26 PRE DMCA BALANCE
a. Sony Corp. of America v. Universal City Studios, 334-39 1. Imported the staple article of commerce doctrine from patent law into copyright law if a device is capable of substantial non-infringing uses it is not contributory infringement, but may be blocked if its only use is infringement. Big question is whether this is still good law since the DMCA, with its primarily designed standard. i. Direct infringement: the guy at home copying the program. ii. Secondary infringement: 1. Knowledge of the infringement, and 2. Materially aiding it. iii. Vicarious infringement: 1. Having the right to control the infringer, and 2. Materially benefiting from the infringement.
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2. Sony defense: If VCRs are capable of commercially significant noninfringing uses, their mere manufacture or sale is not sufficient to constitute contributory infringement even if the VCRs were used by their owners for infringing uses. i. Authorized uses ii. Unauthorized uses 3. Fair use defense -- Consider 4 factors from Sec. 107: i. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; ii. The nature of the copyrighted work; iii. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and iv. The effect of the use upon the potential market for or value of the copyrighted work. b. Section 1201 of the Digital Millennium Copyright Act, 340-42 i. Illegal to (directly) circumvent an access control device that controls access to a copyrighted work i.e., to bypass, deactivate, remove or impair a technological measure that effectively controls access to a copyrighted work. 1201(a)(1) [Anti-circumvention provision] ii. Illegal to traffic in technology primarily designed/marketed/purpose to circumvent access control devices that control access to copyrighted works. 1201(a)(2) [Anti-trafficking provision] iii. Illegal to traffic in technology primarily designed/marketed/purpose to circumvent copy control devices that control copying of copyrighted works. 1201(b)(1) [Anti-trafficking provision] iv. Traffic in includes manufacture, import, offer to the public, provide, or otherwise traffic in, per 1201(a)(2) and 1201(b)(1). 2. Defenses (Exceptions and Limitations) i. Not illegal to circumvent copy control device 1. Allowance for fair use 2. But where will you get the technology to do so? ii. No general fair use exception to anti-circumvention (or antitrafficking) provisions. iii. Some exceptions for: (Page 324) 1. library/educational institution use; 2. federal/state law enforcement; 3. reverse engineering in order to achieve interoperability with other programs 4. encryption research iv. Fair use/Section 107 does not appear to be a defense to any 1201 violation (but see language in 1201(c)). v. But, 1201 carves out several narrow categories of exceptions for specific fair-use type activities. 3. Public policy concerns: DRM allows for monopoly to become total.
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i. Pros? 1. Makes more content available as people put it online. 2. Allows for different pricing iTunes vs. iTunes Plus. ii. Cons? 1. Easy to make people pay for what theyd have the right to do anyway! 2. Shifts control from copyright law to adhesion contracts. 3. Prevents use after content becomes public domain. 4. Often used for platform locking. iPods, Lexmark printers. 4. DRM doesnt always work, but usually does. DMCA criminalizes attempts to get around it. i. Real Networks v. Streambox, 343-48
1. Holding: Sony substantial non-infringing uses doctrine provides no safety for circumventing devices under the DMCA. c. Peer-to-Peer File Sharing, 350 1. A&M Records v. Napster, 350-59 i. Difference between Sony and Napster 1. We are bound to follow Sony and will not impute the requisite level of knowledge to Napster merely b/c peer-topeer file sharing technology may be used to infringe. 2. If a computer system operator learns of specific infringing material on his system and fails to purge such material from
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the system, the operator knows of and contributes to direct infringement. 3. Napster had actual knowledge that specific infringing material is available using its system, it could have blocked access to the system by infringing users, and it failed to remove infringing material - Sony defense is inapplicable. ii. Napster Defenses: 1. Direct infringement by users 2. Right and ability to control the infringing activity 3. Direct financial interest/benefit from infringing activity iii. Holding: Court doesnt buy Napster as fair use, sampling of music for later purchase, or space-shifting. iv. Contributory infringement: 1. Knew of the infringement had the server. 2. Materially aided or induced it allowed them to find each other. v. Vicarious infringement: 1. Financial benefit. Sold ads because so many people were there because of the infringement. 2. Supervision. Terms of use allowed them to terminate accounts or refuse service. vi. But how much power over the users did they really exercise? Would have taken an enormous number of people to supervise everyone a right doesnt confer an ability! 2. MGM v. Grokster, 360-77 i. Inducement liability theory: One who distributes a device with the object of promoting its use to infringe as shown by clear expression or other affirmative steps taken to foster infringement is liable for resulting acts of infringement by third parties. 1. Sony safe harbor will no longer help: Where evidence goes beyond a products characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement, Sony will not save D regardless of substantial noninfringing uses. ii. Cites: 1. Groksters attempts to attract known infringers 2. Making money on high volumes of customers, which high volume was brought by infringement 3. Lack of attempt to filter copyrighted material (only relevant where there is other evidence of inducement) iii. Defenses: 1. Groksters contributory liability
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a. Actual or constructive knowledge of infringement by users i. No b/c of decentralized architecture of sw b. Material contribution to infringement by users i. No b/c users themselves searched for files c. Sony defense i. Distribution of commercial produce capable of subst. noninfringing use cannot give rise to contrib. liability ii. Grokster sw is capable of subst. noninfringing uses iv. Distinguish Sony from Grokster 1. Sony was about limitations on imputing/inferring culpable intent 2. Here, theres no need to infer culpable intent b/c theres evidence of actual intent to induce infringement v. Current state of the law: 1. If you look like youve induced, youre liable. Grokster. 2. If no inducement, look for contributory or vicarious infringement. Sony. 3. If no circumvention of DRM, then argue substantial noninfringing uses. Sony. If circumvention, this wont work. Might not work anyway should have worked in Grokster but didnt.
Chapter Six: Problems of Intermediaries, 393-94

1. Secondary Liability for Copyright Infringement: The Common Law Backdrop, - Religious Technology Center v. Netcom On-Line Comm. Serv., 458 - Section 512 of the Digital Millennium Copyright Act, 467 - Viacom v. YouTube, 474 2. Intermediary Control of Identity and Anonymity, 394 - In re Subpoena Duces Tecum to America Online, 397 - Doe No. 1 v. Cahill, 399 - Sony Music Entertainment v. Does 1-40, 412 3. Intermediary Liability for Online Conduct, 416 - Ira S. Bushey & Sons v. U.S., 417 4. Secondary Liability for Defamatory Content: The Common Law Backdrop, 420 - Cubby v. CompuServe, 420 - Stratton Oakmont v. Prodigy, 423 5. Section 230 of the Communications Decency Act, 426
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- Zeran v. America Online, 429 - Blumenthal v. Drudge, 435 - Chicago Lawyers Committee for Civil Rights under Law v. Craigslist, - Fair Housing Council of San Fernando Valley v. Roommates.com, 444 6. Pressures for Reform - Lemley, Rationalizing Internet Safe Harbors, 482 - Tushnet, Power without Responsibility: Intermediaries and the First Amendment, 488 Unit Four: What to Regulate, 519.
Chapter Seven: Regulating Speech, 521

1. Introduction, 521 A. What is Speech? 522 - Universal City Studios v. Corley, 522 B. Government Regulation of Sexually Explicit Speech, 531 - Ginsberg v. New York, 533 - FCC v. Pacifica, 53 - Sable Comm. of Calif. v. FCC, 543 - Renton v. Playtime Theatres, 548 - Reno v. ACLU, 552 C. Filtering and The First Amendment, 566 Ashcroft v. ACLU, 567 Lessig, Code and Other Laws of Cyberspace, 578 U.S. v. American Library Association, 582 a. Traditional public forum b. Designated public forum c. Non-public forum government-owned property Pennsylvania Internet Child Pornography Act, 597 Center for Democracy and Technology v. Pappert, 599 - International Considerations: - About Filtering, 611 - Bambauer, Cybersieves, 613 - Notes and Questions, 614 - Dow Jones & Co. v. Gutnick, 617 - Notes and Questions, 622 -
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Cyberlaw Outline - Lal

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LAW IN CYBERSPACE OUTLINE

1. Chapter One: Introduction to the Idea of Cyberlaw

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2. Chapter Two: Problems of Metaphor and Analogy

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UNIT II - WHO TO REGULATE Chapter 3: Problems of Geography and Sovereignty

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Chapter Four: Problems of Public versus Private Regulation

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b. Public Regulatory Responses to Private Regulation, 202

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III. Unit Three: How to Regulate, 301-3

Chapter Five: Problems of Technological Regulation, 303

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Chapter Six: Problems of Intermediaries, 393-94

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Chapter Seven: Regulating Speech, 521

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