Cyberspace and the Law - 5404

Spring, 2016 Course Syllabus, Version 1.1

Date: February 12, 2016


Credit hours and meeting times/place: Three credits. Mon., Wed., 12:30-1:45 pm; Law Bldg: Rm. G20


Professor Kevin D. Ashley


Office: Room 525 Law Building, 3900 Forbes Avenue

Phone: (412) 648-1495

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

(412) 624-7496



Secretary: Ms. Patty Blake

Phone: (412) 648-1333

Office: Room 514B Law Building



Course description and rationale: As the Internet and the World Wide Web (WWW) has become ever more central to the world’s commercial, social and cultural life, it makes sense to speak of a new dimension in the ways people communicate and express themselves, conduct business, and organize themselves in pursuit of mutual interests via the global information infrastructure: Cyberspace. This course will examine the legal and policy issues arising in connection with Cyberspace, including:

information torts and jurisdictional issues occasioned by world wide computer networks,

issues of protected speech, defamatory speech, and the treatment of pornography,

protecting intellectual property in and fair use of materials published in Cyberspace,

protecting privacy expectations in Internet communications,

commercial transactions in Cyberspace.


The purpose of this course is to provide students a general introduction to and survey of legal issues that are especially interesting because of the unique circumstances of Internet communications. It is appropriate both for students who have not taken or plan not to take other law school courses in intellectual property or technology as well as students who have taken or plan to take such courses. It qualifies as an elective course for the Certificate in Intellectual Property and Technology Law and for the new Intellectual Property & Innovation Law Area of Concentration.



TWEN course website: There is a TWEN website for this course, Cyberspace and the Law, at You will need to use your Westlaw password to access the site. Beside the syllabus, the website will contain materials for distribution.


Required texts:


Email distribution list: When you first access the TWEN course website, your email address will be added to the distribution list on the TWEN page. There will be a test of the email distribution list during the first week in class. Students are responsible for double-checking that they are receiving class emails.


Office hours: Prof. Ashley will usually be available in his office, Room 525, every class-day morning at 9:30 AM. Students may also set up appointments via email to meet with him at other times.


Course objectives: Upon successfully completing this course, students will understand: (1) the basic values and policies underlying the law concerning personal jurisdiction and regulatory authority, freedom of speech, intellectual property and tangible property protection, privacy, and private ordering; (2) the extent to which developments in cyberspace challenge these values and policies; (3) how existing legal doctrines govern the collection, dissemination, and use of information via the Internet and how those doctrines might better serve the underlying values and policies.


Evaluation: There will be two examinations. A midterm exam will cover the first half of the course material and count for approximately 33% of the final grade. A final exam will cover all of the course material and will count for approximately 66% of the final grade.


Mid-term exam: The mid-term exam will be a modified open-book, take-home examination. It will comprise one essay-type question, and students will be limited to writing a limited number (probably 3) of double-spaced or 1.5-spaced typed pages. The exam will be distributed for download by the Registrar’s system on Friday, February 26, 2016 from noon to 3:00pm. By noon on Monday, February 29, 2016, students must upload their answers to the Registrar.


Students will also need to submit an electronic copy via a peer-review website by a deadline to be provided along with further instructions. The peer-review website will distribute anonymous copies of each student’s answer to a small set of other students in the class for peer-reviewing. As a result, each student will receive reviews from peers, and will also review answers of some other students. For each exam to review, the peer reviewer will write a brief commentary evaluating the exam according to Review Criteria that will be available in the Course Materials link of the TWEN course website. The criteria focus on applying the legal knowledge learned in the course to analyzing concrete problem situations. The peer-review commentaries will be sent to the original authors and to Prof. Ashley. Meanwhile, Prof. Ashley will grade the mid-term answers independently of any student peer-reviews and preserving anonymity of authors. The purpose of the mid-term exam and peer-review exercise is to focus students on the importance and meaning of applying legal knowledge to analyzing concrete problems. In addition, students will receive more exam feedback -- from the instructor and from peer-reviewers -- than is typical in a law school course.


-- A lack of good-faith participation in the peer-reviewing process as evidenced by a failure to provide thoughtful and constructive peer reviews may result in a lower grade on the mid-term. --


Final exam: The final exam will be a modified open-book, take-home examination. It is scheduled for download from the Registrar’s system between 9:00am and 3:00pm on Monday, May 2 OR Tuesday, May 3, 2016. The examination must be uploaded to the Registrar’s system within 24 hours of downloading. Answers must be typewritten and must comply with specified constraints on number of pages, minimum fonts, and margins.


Classroom participation is very important in this course. The instructor may assign individual students or panels responsibility for being prepared to discuss individual readings.


Attendance: The American Bar Association and the School of Law require regular and punctual class attendance (see At the beginning of class, Prof. Ashley will circulate an attendance sheet. It is your responsibility to ensure that you have signed the attendance sheet before leaving class. Under the attendance policy, if you do not sign the attendance sheet before leaving class, you will be marked absent even if you were actually present in class. Regular attendance is defined as attendance at not less than 80% of the classes for the semester.  Failure to satisfy these attendance requirements will result in your being certified out of the course with a grade of “U” (Unsatisfactory).

No recording policy: Please do NOT make audio or video recordings of the course classroom sessions.

Disabilities requiring accommodation: If you have a disability for which you are or may be requesting accommodation, you should contact both the office of the Associate Dean of Students in the Law School (Dean Kevin and the University Office of Disability Resources and Services (, 216 William Pitt Union, (412) 648‑7890/(412) 383‑7355 (TTY), as early as possible in the semester.  DRS will verify your disability and determine reasonable accommodations for this course. The Associate Dean of Students will oversee the implementation of accommodations. Due to the anonymous grading policy, students should not discuss exam accommodations with professors. The Associate Dean of Students and the Registrar will insure that any testing accommodations are provided through the DRS.

Schedule of classes, readings, selected general topics, and course paper progress: A general (and tentative) schedule of reading assignments follows. More specific assignments for upcoming classes will be announced in advance via TWEN email or during class. You should be prepared to discuss in class all of the reading assigned, including the author’s notes and the relevant statutory provisions. We will move through the material at whatever pace seems appropriate for adequate understanding. While we will cover most of the material listed below, it is highly likely that some material will be cut later in the semester; updates to the syllabus will be posted from time to time.



Reading Assignment


W 1/06

pp. 1-32

Introduction to Course

1. Introduction to the Study of Cyberspace Law

A. Internet Basics

B. The Study of Cyberspace Law

2. Regulating Cyberspace

A. Cyberanarchy v. Cyberorder

M 1/11

W 1/13

pp. 32-72

B. Personal Jurisdiction

M 1/18


No Class, Dr. Martin Luther King Day

W 1/20

pp. 72-113

C. Regulatory Authority

M 1/25

pp. 115-173

3. Speech in Cyberspace

A. A New Form of Speech?

B. Content Regulation

1. Indecency

2. Filtering

3. Violence

W 1/27

pp. 173-199

C. Anonymous Communications

1. The Right to Speak Anonymously

2. The Right to Remain Anonymous

M 2/01

pp. 199-269

D. Access to Cyberspace

E. Internet Service Provider Liability for Speech

1. Common Law Liability: Distributor or Publisher

2. Liability after the Communications Decency Act

W 2/03



F. Code as Speech

M 2/08

pp. 271-322

4. Content as Property in Cyberspace

A. Trademarks, Domain Names and Metatags

1. Domain Names and Trademark Infringement

W 2/10

pp. 322-355

2. Domain Names as Speech

3. Search Engines and Metatags

M 2/15

pp. 355-363

4. Content as Property in Cyberspace

B. Copyright in Cyberspace

1. Copyright Basics

2. The Digital Dilemma

W 2/17

pp. 363-440

3. Copyright Infringement 

M 2/22

pp. 440-478

4. Fair Use

a) Doctrine

W 2/24



F 2/26-M 2/29


Take home midterm examination

M 2/29

pp. 478-504

b) Anti-circumvention under the DMCA

W 3/02

pp. 478-504 (cont.)

b) Anti-circumvention under the DMCA (cont.)

M 3/07- F 3/11


Spring Recess

M 3/14

pp. 504-546

C. Patenting Cyberspace

W 3/16



M 3/21


pp. 546-574


D. Sui Generis Protection

W 3/23


Introduction to Privacy Law

M 3/28

pp. 575-630

 5. Privacy

A. Privacy of Communications

1. Privacy and New Technology

2. Intercepting Communications

W 3/30

pp. 631-634

3. Technological Measures to Maintain Privacy: Encryption 

M 4/04

pp. 635-685

B. Data Privacy

1. Restrictions upon Government Data Collection and Disclosure

2. Restrictions upon Private Data Collection and Disclosure

3. Personal Privacy

W 4/06



M 4/11

pp. 687-744

6. Network Ownership and Access

A. Statutory Prohibitions against Illegal Access;

W 4/13


B. Common Law Trespass

M 4/18

pp. 745-776

7. Private Ordering of Cyberspace

A. Shrinkwrap, Click-Wrap, and Browser Agreements

B. Limitations upon Private Ordering:

1. Freedom of Expression

2. Intellectual Property Preemption

W 4/20

(M sched.)

 pp. 776-794

3. Antitrust

M 5/02, Tu 5/03


Take home final examination



Useful websites covering legal developments in cyberspace:


American Civil Liberties Union;

Center for Democracy and Technology;

American Bar Association, Cyberspace Law Committee

Guide to Cyberspace Law;

Electronic Frontier Foundation;

Electronic Privacy Information Center;

Comp TIA Advocacy;



Tech Law Journal;

Wired News;

Jessica Litman

Michael Madison;

Rebecca Tushnet;