Cyberspace and the Law

 Syllabus: August 24, 2001.

This syllabus is divided into two parts: I. Course Overview and II. Annotated Syllabus.
Part I. Course Overview

Time/Place: Fall Semester, 2001: Tues. 9:00-9:50 Rm 109; Thur., Fri. 10:00-10:50 PM; Law Bldg: 107

Professor: Kevin D. Ashley

Law Bldg, 3900 Forbes Ave., Room 317, (412) 648-1495

Learning Research and Development Center, 3939 O'Hara St., Room 519,

(412) 624-7496, ashley+@pitt.edu

Evaluation: o A modified open-book take-home examination will be scheduled for pick up on Monday, December 10 through Thursday, December 13. The examination must be picked up on one of those days and returned within 24 hours.  Answers must be typewritten and must comply with specified constraints on number of pages, minimum fonts and margins.

o Classroom participation is very important in this course. Prof. Ashley may assign individual students responsibility for being prepared to discuss individual readings.

Materials: The required course readings are summarized below in the Annotated Syllabus and will be distributed in a two-volume set. They will be available at The Book Center. Schedule of Classes, Readings and General Topics: (See Annotated Syllabus for full titles and descriptions of articles. Pages indicated should be read by the date they are first assigned.)
Date Readings Topics for Discussion 
8/28,30,31 SURF THE WWW!

I.A.1. ACLU v. Reno Findings of Fact

I.A.2. "15 Minute Series" modules at http://www.dgl.com/15min/. Read through training category entitled "The Basics".

I.A.3. Hardy Article pp. 993-1055

I.A.4. Reidenberg Article

Explore cites listed in I.B. and I.C.

I. Introduction 

A. Gov't in Cyberspace

B. Entering Cyberspace, Pop. ???

C. Demonstration cites

9/4,6,7 II.A.1. Florida AG Opinion

II.A.2. Minnesota AG Opinion

II.B.1. Blumenthal v. Drudge

II.B.2. Bensusan Rest. v. King

II.B.3. Zippo Mfg. v. Zippo Dot Com

II.B.4.  Lanza Article.

II.B.5. Yahoo!  v. La Ligue Contre Le Racisme

II.B.6. Amicus Brief of Yahoo's Motion for Summary Judgment

II. Law enforcement on Internet

A. Enforcement problems

B. Personal Jurisdiction, Choice of Law

9/11,13,14

 

III.A.1. Goldstone Article pp. 335-402 

III.A.2. Note on Alderwood Assoc.

III.B.1. Reno v. ACLU (Supreme Ct.)

III.B.2. ACLU v. Reno (District Ct.)

III. First Amendment Issues

A. Forum Analysis

B. Offensive/Indecent Language

9/18,20,21 III.B.3 ACLU v. Reno (3d Cir. 2000)
re CDAII

III.B.4. Fahrenheit 451.2

III.B.5.Childrens' Internet Prot. Act.

III.B.6. Note on Obscenity

III. First Amendment Issues

B. Offensive/Indecent Language

9/25,27,28 III.C.1. Catching Jellyfish (Brooks) Article pp. 461-490 &

Note on Libel

III.C.2.a. Cubby v. Compuserve pp. 135-144

III.C.2.b. Stratton Oakmont v. Prodigy pp. 1794-1799

III.C.2.c. Denial of Defendant's motion in Stratton Oakmont pp. 1126-1128

III.C.3.a. Godwin Article pp. 1-2

III.C.3.b. CDA Sec. 230

II.C.3.c. Blumenthal v. Drudge

III. First Amendment Issues C. Libel 1. Note on Libel

2. Who is liable?

3. New Standards
 
 

 10/2,4,5 IV.A. Burk Article pp. 1-19

IV.B. Lanham Act, 15 USCA §§ 1114, 1125

IV.C. Brookfield Comm. v. Westcoast Entertainment

IV.D. Intermatic v. Toeppen pp. 1227-1243

IV.E. UDRP

IV.F. ACPA. Lanham Act, 15 USC 1125d

IV. Who Owns What in Cyberspace Trademark Infringement & Domain Names
10/9, 11,12 V.A.1. Excerpts, Copyright Act, 17 USC

V.A.2. Feist v. Rural Telephone

V.A.3. Sega v. Accolade

V.A.4. Sony v. Universal City Studios

V. Who Owns What in Cyberspace

Copyright

A. Copyright Basics

10/16, 18, 19 V.B.1. Playboy Ent. v. Frena pp. 1552-1563

V.B.2. Sega v. Maphia

V.B.3. Grossman article

V.B.4. Religious Tech. Ctr. v. Netcom pp. 1361-1383

V.B.5. Testimony of Wm Cook pp. 1-21

V.B.6. 17 USCA §512

V.B.7. - 9. A&M Records v. Napster 

V. Who Owns What in Cyberspace

Copyright

B. Copyright infringement in networked context
10/23, 25,26 V.C.1. Tanenbaum Article pp. 1-6

V.C.2. Samuelson "Grab" Article pp. 1-10

V.C.3. Newcomb Response pp. 1-2

V.C.4. Samuelson "Confab" Article

V.C.5. DMCA §§1201-4

V. Who Owns What in Cyberspace

Copyright

C. Copyright Management Information Systems and Fair Use
10/30, 11/1,2 VI.A. Step-Saver Date Sytems v. Wyse Tech. pp. 91-108

VI.B. ProCD v. Zeidenberg pp. 1447-1455

VI.C. UCITA exerpts

VI.D. "Battle" Article

VI. Who Owns What in Cyberspace

Shrink-wrap and clip-wrap licensing

11/6,8,9 VII.A.1. Shulman Article

VII.A.2. Smith Article

VII.B. Amazon.com v. Barnesandnoble.com

VII.C. Amazon cite

VII.D. Raul et al. Article

VII.E. eBay v. Bidder's Edge

VII.F. Proposed DB protection bills

VII. Who Owns What in Cyberspace? Patenting Business Methods and Protecting Databases
11/13, 15,16

 

VIII.A. Buba Article 
VIII.B.1. Cohen Article. pp. 981-1039

VIII.B.2.a. Freiwald Article Excerpts pp. 950-960

VIII.B.2.b. Rimm Article pp. 1849-1852, 1911-1912

VIII.B.2.c. McKinnon Article pp. 1959-1967

VIII. Privacy in Cyberspace A. Anonymous Reading
11/20,27,29 VIII.C.1&2. Digital Cash websites

VIII.C.3. Froomkin Article excerpts pp. 449-471

VIII.C.4. Digital Signatures URL

VIII.D.1.Froomkin Article excerpts pp. 479-505

VIII.D.2. Cookies URL

VIII.D.3. EPIC v. DoubleClick

VIII.D.4 URL's re protecting children

VIII. Privacy in Cyberspace B. Leaving Traces: Digital Cash, e-commerce and privacy implications

C. Regulating Data Collection and Profiling

11/30 VIII.E.1. Lee Article pp. 139-177

VIII.E.2. Smyth v. Pillsbury pp. 97-101

VIII. Privacy in Cyberspace D. Employment Monitoring 
12/4,6 IX.A. Radlo Article pp. 1-11

IX.B. Bernstein v. US Dept. of State 

IX.C. Junger v. Daley

IX.D. Universal City Studios v. Reimerdes

IX. Encryption in Cyberspace Communications: Security vs. Privacy 

 
 
 
 
 
 
 

Part II. Annotated Syllabus

I. Introduction

A. Government in Cyberspace: Bringing law and order to the Wild West: How should one conceptualize the new medium called cyberspace? Is regulation of conduct in cyberspace appropriate or even feasible, and if so, how should it be implemented? 1. American Civil Liberties Union v. Reno, 929 F.Supp. 824-884 (E.D. Pa. June 11, 1996) Findings of Fact 1-123.

2. Internet Concepts and Definitions: Read modules at http://www.dgl.com/15min/ on training category entitled "The Basics".

3. Trotter Hardy, The Proper Legal Regime for "Cyberspace," 55 U. Pitt. L. Rev. 993-1055 (1994). The article suggests which issues involving cyberspace are unique to the medium and which are merely extensions of traditional legal frameworks. It raises specific questions concerning issues we plan to cover in the course. Hardy concludes that initial adoption of the most flexible rules possible is the prudent approach.

4. Joel Reidenberg, Lex Informatica: The Formulation of Information Policy Rules through Technology, 76 Texas L. Rev. 553 (1998). Where do rules come from in Cyberspace?

B. You are now entering Cyberspace, Population: ???? Who uses the Internet, for what, and how often? Does analysis of user demographics reveal potential markets and suggest how law might best serve this new community? 1. Commercenet/ Neilsenmedia Internet study results (http://www.nielsenmedia.com)

2. See http://www.statmarket.com/ (real-time source of Internet statistics and user trends), http://www.survey.net/inet1r.html (Internet Survey #1 - Current Results)

3. http://www.yahoo.com/. See search category Computers and Internet: Internet: Statistics and Demographics.

C. Demonstration of web sites that illustrate controversy over regulation/censorship (e.g., gambling, hate speech, adult material)
II. Law enforcement on the Internet: The long arm of the law meets the longer arm of the cyber user: the ability to act at a distance and its implications for the law. What are the challenges faced by law enforcement in cyberspace? How should one address problems of jurisdiction, choice of law, and enforceability given this borderless environment? A. Enforcement problems 1. Florida Attorney Generalís Office, Formal opinion: AGO 95-70 (October 18, 1995).

2. Minnesota Attorney Generalís Office, Formal Opinion (citation omitted).

Contrasting AG Opinions from Minnesota and Florida re: Internet gambling. Minnesota has adopted an enforcement position that persons who knowingly transmit information via the Internet which will be disseminated in Minnesota will be subject to state criminal and civil laws (expressly including illegal Internet gambling). The position has been criticized as an attempt to erect an electronic wall around the state. Conversely, Florida formally acknowledges the rapid pace at which evolving technology confounds effective government regulation (e.g., the problems of detection and tracing). While noting that current state law could theoretically be applied to Internet gambling, enforcement problems force Florida to suggest national or international regulation as preferable to "patchwork attention by individual states."

Background reading: Seth Gorman & Anthony Loo, Comment, "Blackjack or Bust: Can U.S. Law Stop Internet Gambling?," 16 Loy. L.A. Ent. L.J. 667 (1996). The authors suggest possible solutions to the jurisdictional and enforcement problems of regulating Internet gambling. They propose holding access providers civilly liable such that they will block or limit access to domestic and international sites. They alternatively suggest limited legalization combined with providing Internet casinos and parents with blocking technology to limit access to adults within certain jurisdictions.

B. Personal Jurisdiction in Cyberspace and Choice of Law 1. Blumenthal v. Drudge 992 F.Supp. 44 (D.D.C. 1998)

2. Bensusan Restaurant Corp. v. King, 126 F.3d 25 (2d Cir. 1997).

3. Zippo Mfg. Co. v. Zippo Dot Com, Inc. 952 F.Supp. 1119 (W.D. Pa. 1997)

4. Emily Lanza, Personal Jurisdiction Based on Internet Contacts, 24 Suffolk Transnat'l L. Rev. 125 (2000)

5. Yahoo! Inc. v. La Ligue Contre Le Racisme, Case Number 00-21275 JF (N.D. Cal 2001)

6. Amicus Brief in Support of Yahoo's Motion for Summary Judgment

Background

1. David R. Johnson and David Post, Law and Borders -- The Rise of Law in Cyberspace, pp. 1-23 (48 Stan. L. Rev. 1367) (article argues that traditional justifications for geographic basis of jurisdiction and choice of law do not apply in cyberspace; article makes use of trademark example to illustrate contention that the relationship between the cyber-citizen and the cyber-sovereign is unique and calls for a wholly new set of rules to maintain order and fairness.)

2. William S. Byassee, Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual Community, 30 Wake Forest L. Rev. 197-220 (1995) (Part IV discusses virtual violence and virtual punishment; article suggests that cyberspace should be its own jurisdiction in which punishment fits the crime (e.g. virtual death penalty); author hopes courts will defer to legislature with respect to regulating the Internet, and calls for cyberusers to organize and lobby legislators to protect their own interests).

3. David G. Post, Anarchy, State, and the Internet: An Essay on Law-Making in Cyberspace, 1995 J. Online L. Art. 3.

III. First Amendment Issues: You canít say that here, or can you? The First Amendment meets a new medium. What is the status of protected speech on the Internet? How well does existing case law apply to cyberspace? Does cyberspace have unique characteristics that justify greater or lesser speech protections for pornography, indecency, and defamation? A. Forum analysis - What is the appropriate level of constitutional protection for Internet speech? Should it depend on who is managing the relevant part of the Information Infrastructure: the private sector or government? 1. David J. Goldstone, The Public Forum Doctrine in the Age of the Information Superhighway (Where are the Public Forums on the Information Superhighway?), 46 Hastings L.J. 335-402 (1995). Article discusses the problems of securing speech protections under public forum analysis when dealing with privately managed networks. Focus is on the difficulty of overcoming the state action requirement and what level of scrutiny would apply in particular areas of the Internet.

2. Note on Alderwood Associates v. Washington Environmental Council, 635 P.2d 108 (Wash. 1981) (holding privately owned shopping mall subject to state constitution free speech provisions). The case demonstrates how state constitutions can protect speech when even the federal constitution does not. It provides a rationale for placing limitations on private property ownersí ability to censor.
 

B. Offensive/Indecent Language - Considering that the level of permissible indecency regulation differs depending on the nature of the medium, like which existing medium should cyberspace be treated, or is it unique? 1. Reno v. American Civil Liberties Union 117 S.Ct. 2329 (1997). The U.S. Supreme Court affirmed the decision of the District Court below holding indecency provisions of CDA facially unconstitutional.

2. American Civil Liberties Union v. Reno, 929 F.Supp. 824-884 (E.D. Pa. June 11, 1996) A comparison/contrast of the three opinions that make up the majority reveals differing justifications for protecting speech on the Internet from the legislative regulation in question.

3. American Civil Liberties Union v. Reno, 217 F.3d 162 (3d Cir. 2000) Congress revised the CDA but with similar results.

4. New approaches to protecting minors: American Civil Liberties Union, "Fahrenheit 451.2: Is Cyberspace Burning? How Rating and Blocking Proposals May Torch Free Speech on the Internet" (1998) <http://www.aclu.org/issues/cyber/burning.html>

5. Childrens' Internet Protection Act. On June 23, 1999 the Senate Commerce Committee approved an amended version of S. 97. See: http://www.ala.org/cipa/Law.PDF.

6. Note on Obscenity: United States v. Thomas, 74 F.3d 701-716 (6th Cir. 1996). Thomas involved a conviction under federal obscenity statutes for transportation of obscene material through electronic bboards from its source in California to an undercover postal inspector in Tennessee (the prosecution was in Tennessee). Thomas applies Miller v. California, 418 U.S. 915, 94 S.Ct. 3206 (1974) (3-prong test for obscenity; obscenity is "category" of speech outside First Amendment) in the medium of cyberspace. Thomas, 74 F.3d at 710. The novel questions raised under the case include whether the defendant actually "sent" the material, as apparently required by the statute (thus being similar to more common "mail order" cases). Defendants unsuccessfully argued that a more technically accurate description of the process is that the Tennessee recipient in effect went to California, copied the material, and brought it back to Tennessee. The court also quickly dispensed with the defense argument that the graphics file did not meet the statutory requirement that the material be in a "tangible" form. The case also contains an interesting discussion of proper venue. The venue discussion is relevant to the question of which communityís standards should be applied in the first prong of Miller. Should the proper standards be those of a "virtual" community, or any community to which the material is transmitted? Since current technology does not allow the material posted by potential defendants to be selectively available to limited communities, does the decision require bboard operators to post material which conforms to only the most conservative community standards? Although the case does not address the question directly, the issues faced by the court also suggest the practical problem of enforcing state and federal obscenity laws when the source is outside U.S. territory. Jurisdictional issues raise concerns that purveyors of obscenity will respond to the threat of prosecution by simply relocating to locations beyond the reach of U.S. law.

Background Reading:

John S. Zanghi, "Community Standards" in Cyberspace, 21 U. Dayton L. Rev. 95 (1995).

Bernard W. Bell, "Filth, Filtering, and the First Amendment: Ruminations on Public Libraries' Use of the Internet Filtering Software, 53 Fed. Comm. L.J. 191 (2001)
 
 
 

C. Libel in Cyberspace 1. Introduction: Thomas D. Brooks, Note, Catching Jellyfish in the Internet: the Public-Figure Doctrine and Defamation on Computer Bulletin Boards, 21 Rutgers Computer & Tech. L.J. 461-490 (1995). Article discusses policy arguments for higher standards of liability in some cyber-libel cases (e.g., when private figures are on similar footing as public figures to respond to defamatory statements in cyberspace). The author proposes that private individuals who are defamed might not need extra legal protection (i.e., lower standards of liability might be appropriate) 1) if the person has access to the media, 2) if there is a public controversy, and 3) if the person has sufficiently injected himself into the public controversy. Despite the arguably low barriers plaintiffs face in effectively rebutting alleged defamations through online bulletin boards, the author identifies several factors that might confound judicial categorization of private bboard users as public figures.

Note on Libel: The traditional approach to libel imposes increasingly higher standards of liability when private individuals are defamed and the statements are private in nature. This framework has historically been justified due to the difficulties private individuals have experienced in rebutting defamatory statements with limited access to the media. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964) (establishing actual malice standard for libel suits by public officials); Gertz v. Welch, 418 U.S. 323 (1974) (state may define appropriate standard of liability for private plaintiffs libeled on matters of public concern, but there must be some showing of fault; plaintiff cannot recover presumed or punitive damages without proving actual malice); and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (private plaintiff can recover punitive damages without showing actual malice when statement at issue addresses matter of private concern).

2. Who is liable for libel in Cyberspace? - To what degree, if at all, should online service providers shoulder the responsibility for preventing defamatory statements by individual users?

a. Cubby, Inc. v. Compuserve, Inc., 776 F.Supp. 135-144 (S.D.N.Y. 1991) (service provider held not liable for defamatory statements when it acted as distributor (analogous to a public library, bookstore, or news vendor), not publisher, since it neither knew nor had reason to know of statements). The bottom line of Cubby is that commercial providers who make no effort to monitor content and serve primarily as information distributors may be relieved of liability for the content of the messages within their systems.

b. Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995) (service provider exercising significant editorial control acted as publisher, analogous to a newspaper publisher, and thus subject to liability in libel action). The fact that Prodigy promulgated and enforced content guidelines subjected it to liability for a userís statement under the theory that "one who repeats or otherwise republishes a libel is subject to liability as if he had originally published it." Stratton Oakmont, Inc., 1995 WL 323710 at 2. The court believes that acceptance or rejection of the additional liability that necessarily attends the exercise of significant editorial control is merely one of the market decisions providers must make.

c. Denial of Defendantís motion for reconsideration in Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 805178 (N.Y. Sup. Ct. Dec. 11, 1995) (noting that because law has thus far not kept pace with technology, there is pressing need for some precedent to serve as guidance until the law can gain a perspective that only comes with time).

Cubby and Stratton Oakmont provide a good contrast as to the multiple roles online service providers can play and the corresponding degrees of liability which can attach. The cases demonstrate the conflicting positions service providers may find themselves in depending on the level of control they exercise. Providers typically do not want to be treated as common carriers so that they can regulate the speech of their users with regard to indecency, hate speech, etc. (consistent with the providerís conduct in Stratton Oakmont ). However, the more editorial control the providers exercise, the greater the exposure to liability for usersí defamatory statements. On the other hand, if the provider adopts a more hands-off editorial approach, as in Cubby, they may limit their ability to curb sexually explicit or otherwise offensive speech by their users.

3. New Standard of Liability - Does the opportunity to reach much larger audiences via the Internet no longer justify heightened legal protection for private individuals? a. Mike Godwin, Libel Law: Let It Die, Wired 4.03, pp. 1-2 (http://www.wired.com/wired/archive/4.03/letitdie.html). Commentary criticizes the application of libel law in cyberspace. Godwin does not agree that service providers should be held liable for a userís defamatory statements. While he admits that individuals defamed online should have recourse against the individual users who publish the defamatory statements, he believes the appropriate remedy is to fight fire with fire (as opposed to a litigious response). However, Godwin fails to address the issue of whether it is wise to adopt his approach if the result is to turn cyberspace into a huge shouting match.

b. Communications Decency Act of 1996, Section 230. Congress to the rescue!

c. Blumenthal v. Drudge 992 F.Supp. 44 (D.D.C. 1998)

IV. Who Owns What In Cyberspace: Trademark Infringement and Domain Names in e-commerce A. Dan L. Burk, "Trademarks along the Infobahn: A First Look at the Emerging Law of Cybermarks", 1 U. Rich. J.L. & Tech. 1-19 (1995) (http://www.richmond.edu/~jolt/v1i1/burk_related.html) (discusses 3 major cases dealing with trademark infringement relating to domain names).

B. Lanham Act, 15 USCA §§ 1114, 1125.

C. Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999)

D. Intermatic Inc. v. Toeppen, 947 F. Supp. 1227-1243 (N.D. Ill. 1996)

E. Uniform Domain Name Dispute Resolution Policy (UDRP) adopted by the Internet Corporation for Assigned Names and Numbers (ICANN), http://www.icann.org/udrp/udrp-policy-24oct99.htm, and a recent decision, http://www.arbforum.com/domains/decisions/92054.html

F. Anticybersquatting Consumer Protection Act ("ACPA") Lanham Act, 15 USC 1125d

V. Who Owns What In Cyberspace: Copyright: A world of information at your fingertips . . . but itíll cost ya. Technology forces us to reexamine the scope of copyrights.  Will ease of copying virtually destroy publishersí control over their work? How will technological advances affect the private use of protected material? Have publishers and readers become adversaries in cyberspace, and if so, whose interests should prevail? Will possible exposure to liability force service providers to become watchdogs against user infringements? A. Copyright Basics: Copyright infringement as a shield and a sword 1. Excerpts from Copyright Act, 17 USC.

2. Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 111 S.Ct. 1282, (1991)

3. Sega Enterprises Ltd. v. Accolade, Inc. 977 F.2d 1510 (9th Cir. 1992)

4. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 104 S. Ct. 774 (1984)

B. Copyright infringement in a networked context 1. Playboy Enterprises v. Frena, 839 F.Supp. 1552-1563 (M.D. Fla. 1993) (computer bulletin board service held liable for copyright infringement when subscribers posted copyrighted material unbeknownst to service; court emphasized that scienter is not an element of infringement; court explained that while lack of knowledge or intent to infringe is not necessary to a finding of infringement, this factor can be considered using equity principles in fixing the amount of damages within the statutory range).

2. Sega Enterprises Ltd. v. MAPHIA, 857 F.Supp. 679 (N.D.Cal., Mar 28, 1994)

3. Wendy M. Grossman, "alt.scientology.war," Wired 3.12, pp. 1-8 (http://www.mcs.net/~sorkin/wired/altsci.html). Journalistic summary of events leading to criminal copyright infringement prosecutions. The Church of Scientology attempted to use copyright law to prevent posting of internal documents by ex-members whose goal was to expose the organization.

4. Religious Tech. Center v. Netcom On-Line Comm., 907 F. Supp. 1361-1383 (N.D. Cal. 1995)

5. Testimony of William J. Cook before House Judiciary, Courts, and Intellectual Property Committee on Copyright Protection on the Internet (February 8, 1996), pp. 1-21 (http://www.house.gov/judiciary/445.htm). Testimony argues for greater protection for publishers through legislation to hold Internet service providers liable for direct, vicarious, and contributory copyright infringement. Cook proposes imposing upon service providers a duty to remove copyrighted material from their systems. Cook describes holdings in Playboy and Sega cases, and contrasts them with the Church of Scientology case (which he believes was wrongly decided).

6. 17 USCA §512 http://www.dfc.org/

7. A&M Records, Inc. v. Napster, Inc., 2000 WL 573136 (N.D.Cal., May 12, 2000)

8. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001)

9. A&M Records, Inc. v. Napster, Inc., 2001 WL 227083 (N.D. Cal., 2001)

10. Hypertext linking and copyright infringement
 

C. Copyright Management Information Systems and Fair Use 1. William A. Tanenbaum, "Lost in Cyberia: 'Transmission' Under the Law of Copyright", 431 Practicing Law Institute 61 (1996) (Patents, Copyrights, Trademarks, and Literary Property Courses Handbook Series) (Short article highlighting the proposed changes to the Copyright Act. Article broadly analyzes the proposed expansion of statutory definitions to the extent that "transmission" will encompass both reproduction and distribution of documents. The article also notes that the White Paper does not recommend amending the doctrine of first sale because the original copy is typically not relinquished when a copy is transmitted.).

2. Pamela Samuelson, "The Copyright Grab", Wired 4.01 (Jan. 1996), pp. 1-10 (http://www.mcs.net/~sorkin/wired/copgrab.html). In depth analysis of proposed amendments and strong critique of the effects on the fair use doctrine. Samuelson presumes that private use has up until now been non-infringing, as opposed to merely unenforceable infringement.

3. Newcomb Response (http://www.wired.com/wired/archive/4.04/rants.html) Letter to the Editor of Wired from Jon Newcomb, President and CEO of Simon & Schuster (writing for the Creative Incentive Coalition, an organization representing the interests of publishers) in response to Pamela Samuelson article.

4. Pamela Samuelson, "Confab Clips Copyright Cartel", Wired 5.03 (Mar. 1997), pp. 1-8 (<http://www.wired.com/wired/archive/5.03/netizen_pr.html>)

5. Digital Millenium Copyright Act of 1998 Sec. 1201-1204, Copyright Protection and Management Systems. http://www.dfc.org/

VI. Who Owns What in Cyberspace: Shrink-wrap and clip-wrap licensing: Will software vendors be able to enforce shrink-wrap and clip-wrap licenses of software distributed over the Internet in e-commerce? How will UCITA affect the enforceability of shrink-wrap licenses? A. Step-Saver Data Systems, Inc. v. Wyse Technology, 939 F.2d 91-108 (3d Cir. 1991) (court refused to enforce shrink-wrap license based on analysis of U.C.C. § 2-207).

B. ProCD Inc. v. Zeidenberg, 86 F.3d 1447-1455 (7th Cir. 1996) (court enforced a mass-market shrink-wrap license based on analysis of U.C.C § 2-204).

C. UCITA (Uniform Communications Information Transactions Act) Formerly proposed amendments to U.C.C. Excerpts from Article 2B (Draft).

D. Battle Over UCITA Heats Up As Both Sides Claim Support. Dugie Standeford. E-Commerce Law Weekly February 16, 2000 http://www.lawnewsnetwork.com/practice/techlaw/news/A16336-2000Feb16.html

Background material: Mark A. Lemley, Intellectual Property and Shrinkwrap Licenses, 68 S. Cal. L. Rev. 1239-1294 (1995) (a critique of the proposed changes to the U.C.C. [now UCITA] that would strengthen enforceability of software shrink-wrap licenses). This article has an extensive background section that analyzes the current state of the law of shrinkwrap licenses. The author concludes that the proposed UCC revisions are too favorable for licensors and deny licensees federal copyright rights. The author proposes a small amendment to the proposed UCC section on mass-market licenses that would protect the rights of licensees. It should be noted that the article cites a draft of the UCC revision that is no longer current. The author's overall analysis still applies to the later drafts, but the later drafts may be even more pro-licensor than the draft that the author reviewed.

VII. Who Owns What in Cyberspace? Patenting Business Methods and Protecting Databases for e-commerce A.1.Seth Shulman, "Software Patents Tangle the Web," Technology Review, March/April 2000 (available at <http://www.techreview.com/articles/ma00/shulman.htm>)

A.2. Gary W. Smith, Patenting Business Methods in Cyberspace: 2B or Not 2B, 45-APR B.B.J. 12 (2001)

B. Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343 (Fed. Cir. 2001)

C. 1) The site where Amazon describes its one-click process <http://www.amazon.com/exec/obidos/subst/help/one-click-learn-more.html/103-7989593-2547067>; and 2) a site dedicated to fighting Amazon's patent claim, <http://www.noamazon.com/>.

D. Who Owns the Data?  Evolving Protections for Facts, Secrets and Personal Information in Cyberspace. Alan Charles Raul, Edward R. McNicholas, Claudia A. von Pervieux
Sidley & Austin, Washington, D.C. April, 2000 http://www.sidley.com/cyberlaw/features/protecting_fd.asp

E. eBay v. Bidder's Edge U.S.D.Ct. (No. C-99-21200 RMW)  100 F. Supp. 2d 1058 (May 24, 2000 N.D.Calif.)

F. Pointers to proposed database protection legislation

VIII. Privacy in Cyberspace: This is your life: What should stay private and how can it be kept that way: Are traditional expectations of privacy realistic in cyberspace? Given the available technology, what are reasonable expectations of privacy? Do analogous media (e.g., mail correspondence, telephone conversations) provide useful guidelines or are they misleading? A. Introduction to privacy regulation: Nicole M. Buba, Waging War Against Identity Theft: Should the United States Borrow from the European Union's Battalion? 23 Suffolk Transnat'l L. Rev. 633 (2000)

B. Anonymous Reading: Is there a realistic expectation of privacy, and if so, should it be recognized and protected?

1. Julie E. Cohen, "A Right To Read Anonymously: A Closer Look at 'Copyright Management' in Cyberspace", in Symposium: Legal Regulation of the Internet, 28 Connecticut Law Review 981-1039, Focus on Parts I-VI (pp. 981-1039). Part I describes generally the various management technologies. Part II provides an overview of the proposed federal legislation. Part III rejects the argument that copyright management is as legitimate as private ordering. Part IV focuses on an individual right to read anonymously. Part V focuses on state action. Part VI focuses on how the statute should be changed to protect reader anonymity.

Background material:
 

See Robert C. Ellickson, Order Without Law Part I (1991), David G. Post, "Anarchy, State, and the Internet: An Essay on Law-Making in Cyberspace", 1995 J. Online L. Art. 3, described in Section VI.D.

Marie Clear, "Falling Into the Gap: The European Union's Data Protection Act and It's Impact on U.S. Law and Commerce", 18 J. Marshall J. Computer & Info. Law 981 (2000)

Testimony and Statement for the Record of Marc Rotenberg, www.epic.org/privacy/intl/rotenberg-eu-testimony-598.html

Catherine L. Glenn, "Protecting Health Information Privacy: The Case for Self-Regulation of Electronically Held Medical Records", 53 Vand. L. Rev. 1605 (2000)


2. "No thanks, Iím just browsing": Controversy over tracing website visits

a. Susan Freiwald, "Uncertain Privacy: Communications Attributes After the Digital Telephony Act", 69 S. Cal. L. Rev. 949 (1996). Focus on pp. 950-60 Section describes practice of electronically logging sites accessed by every user while on-line. Practical justifications are offered, but author notes serious potential for misuse.

b. Marty Rimm, "Marketing pornography on the Information Superhighway: A Survey of 917,410 Images Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times by Consumers in Over 2000 Cities in Forty Countries, Provinces, and Territories", 83 Geo. L.J. 1849-1852, 1911-1912 (1995) (Section E. of Part IV. of the study focuses on privacy issues in collecting the data). Rimm acknowledges the privacy concerns of unrestricted access to user logfiles, but defends his study as not reporting individual identities.

c. Note re Catherine McKinnon, "Vindication and Resistance: A Response to the Carnegie Mellon Study of Pornography in Cyberspace", 83 Geo. L.J. 1959-1967 (1995). Article defending integrity of Rimm study. McKinnon believes that identifying pornography consumption justifies compromising individual privacy.

E.g. Snooper program: (http://wwwj.cs.unc.edu/Courses/wwwp-s99/members/maglaugh/html/snooperPdesc.html) demonstrates how merely visiting a site can unknowingly reveal personal information. The site also offers a program, which allows the user to surf anonymously.
 

C. Leaving Traces: Digital Cash, e-commerce and implications for privacy 1. E.g., Digicash (http://www.digicash.com/)

2. Note on how digital cash facilitates feasibility of copyright management enforcement (e.g. Millicent: <http://www.research.digital.com/SRC/millicent> Permits tenth of a cent transactions which could allow payment for licensing of small amounts of copyrighted material).

3. Michael Froomkin, "Flood Control on the Information Ocean: Living with Anonymity, Digital Cash, and Distributed Databases", 15 J.L. & Comm. 395-507 (1996), pp. 449-479 (pp. 449-471 provides a technical background for understanding the various electronic currency systems available. pp. 471-479 offer policy arguments regarding the systems). Constitutional privacy rights are implicated by Internet commerce in information (as opposed to commerce in ordinary tangible goods via the Internet; "there is no generalized right to shop anonymously." p. 479). Since there is no way to create anonymous digital cash exclusively for the purchase of tangibles, any regulation of anonymity to protect legitimate state interests in law enforcement and tax collection necessarily implicates and impinges on anonymous speech.

4. How do digital signatures work? http://www.abanet.org/scitech/ec/isc/dsg-tutorial.html

Background material: Catherine M. Downey, Comment, "The High Price of a Cashless Society: Exchanging Privacy Rights for Digital Cash?", 14 J. Marshall J. Computer & Info. L. 303 (1996); Henry H. Perritt, Jr., "Legal and Technological Infrastructures for Electronic Payment Systems", 22 Rutgers Computer & Tech. L.J. 1 (1996).

D. Regulating Data Collection and Profiling in e-commerce 1. Michael Froomkin, "Flood Control on the Information Ocean: Living with Anonymity, Digital Cash, and Distributed Databases", 15 J.L. & Comm. 395 (1996), pp. 479-505

2. Cookies: http://www.cookiecentral.com/

3. EPIC's FTC Complaint against DoubleClick Inc. <http://www.techlawjournal.com/privacy/20000210com.htm>

4. Protecting children from corporate snooping: Childrenís Online Privacy Protection Act.

E.g., Microsystems Cyber Patrol http://www.netspaceonline.com/netspace/cpatrol.htm (Software that allows parents to restrict their children from not only the bad sites on the Internet, but also what time of day Internet usage is allowed, what chart rooms they can visit, and customizable filtering criteria.)

E.g., Kidscom: http://www.kidscom.com/

Site provides entertainment and product information for children, but includes survey requesting detailed personal information. The company states that the information is purely for market research.
 

E. Private party monitoring in employment situations 1. Laurie Thomas Lee, "Watch Your E-Mail! Employee E-Mail Monitoring and Privacy Laws in the Age of the 'Electronic Sweatshop'", 28 J. Marshall L. Rev. 139-177 (1994). Article outlines the competing interests of employers (protecting corporate secrets and preventing illegal conduct, tradition of monitoring worker performance to ensure quality control) and employees (expectation of privacy). The author examines federal and state constitutional and statutory law and determines that little, if any, protection is afforded private sector employees (there is discussion of the additional safeguard protections for government employees). The author proceeds to analyze common law privacy torts, contemplating the difficulties of sustaining a claim, but suggesting that relief might be available depending on how the courts analogize e-mail to other workplace environments (desk, locker, mail, phone, etc.). The article also notes two opposing pending pieces of legislation that would protect the rights of either employer or employee, and the author suggests additional guidelines to safeguard worker privacy while authorizing legitimate and limited employer monitoring.

Background: Larry O. Natt Gantt II, An Affront To Human Dignity: Electronic Mail Monitoring in the Private Sector Workplace, 8 Harv. J.L. & Tech. 345 (1995). A more comprehensive survey of privacy law.

2. Smyth v. Pillsbury Co., 914 F.Supp. 97-101 (E.D. Pa. 1996). The case concerned the wrongful discharge claim of an at-will employee. The court recognized the possibility of a cause of action when the discharge "threatens or violates a clear mandate of public policy." Smyth, 914 F.Supp. at 99. The employer had assured employees that "all e-mail communications would remain confidential and privileged." Id. at 98. The employer further assured employees that e-mail "could not be intercepted and used by defendant against its employees as grounds for termination or reprimand." Id. However, state law prevents "estopped from firing an employee based upon a promise, even when reliance is demonstrated." Id. at 100. The court also analyzed the claim as possibly encompassing the invasion of privacy tort of intrusion upon seclusion. The court concluded that the plaintiff had failed to state a claim. The court declined to find a reasonable expectation of privacy in e-mail communications which it characterized as voluntary, thus distinguishing such monitoring from urinalysis and personal property searches that involve mandatory disclosure of personal information. Id. The court added that any privacy interest the employee might have in the e-mail contents is outweighed by "the companyís interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system." Id.
 

F. Anonymous Speech: How speech anonymity can be invaded and protected E.g., Anonymous remailer programs: http://anon.efga.org/~rlist/ (This site contains a list of anonymous remailers as well as Anonymous Web Surfing.)

Peter H. Lewis, Computer Jokes and Threats Ignite Debate on Anonymity, New York Times, (December 31, 1994), pp. 1-6 (http://www.clas.ufl.edu/~avi/NII/NYT_anon-amok.txt). Article describing issues raised by remailers. An example of a spoof involving Microsoft, Associated Press, and the Catholic Church demonstrates how anonymous speech can cause temporary havoc with no recourse against the spoofer.

E.g., Java Script problems: (http://www-genome.wi.mit.edu//WWW/faqs/www-security-faq.html). Questions 59-61 discuss how certain scripts could allow surreptitious access to a userís e-mail address, disk directories, and history and cache files (containing lists of recently visited URLs.)

 Background Reading: A. Michael Froomkin, Flood Control on the Information Ocean: Living with Anonymity, Digital Cash, and Distributed Databases, 15 J.L. & Comm. 395 (1996), pp. 414-449 (pp. 414-427 provides a technical description of anonymous remailers, while pp. 427-449 engages in a legal analysis and poses policy arguments).

IX. Encryption in Cyberspace Communications: Security vs. Privacy A. Edward J. Radlo, Legal Issues in Cryptography, 13 No. 5 Computer Law. 1-11 (1996). Non-technical overview of encryption methods and attendant legal issues.

B. Bernstein v. U.S. Department of State, 176 F.3d 1132 (9th Cir. May 6, 1999) opinion withdrawn; case ordered to be reheard en banc 192 F.3d 1308 (9th Cir. Sept. 30, 1999)

C. Junger v. Daley, 209 F.3d 481 (6th Cir. April 4, 2000)

D. Universal City Studios, Inc. v. Reimerdes, 111 F. Supp.2d 294 (2000)

E. New encryption export regulations: http://www.cdt.org/crypto/admin/

Background reading: A. Michael Froomkin, The Metaphor is the Key: Cryptography, the Clipper Chip, and the Constitution, 143 U. Pa. L. Rev. 709 (1995), Chapters 1-3.

Note: The Gold Key Campaign of the Internet Privacy Coalition (http://www.privacy.org/ipc). Online campaign advocating proliferation of encryption technology to maximize individual privacy protections, and providing actual encryption programs for download and use.

Background material: Karn v. U.S. Department of State, 925 F.Supp. 1-14 (D.D.C. 1996) remanded 107 F.3d 923 (D.C.Cir. 1997) (cryptography info on diskette is "defense article" statutorily subject to export restrictions).