Internet Law

Professor Grimmelmann

New York Law School

Spring 2010


About the Course

Overview

This is a first course in Internet law. You’ll learn the essentials of computer and network technologies, and how those technologies are challenging settled legal understandings. The sources of Internet law are many, from intellectual property to tort to the First Amendment, but by the end of the course, you should be able to sort through the legal complexities in any given case to identify what’s really at stake. Throughout the semester, we’ll tie the doctrines together with four themes:

  1. How regulation changes when it’s carried out by computers, rather than by people.
  2. Whether going online increases or decreases government control.
  3. The new kinds of power possessed by online intermediaries.
  4. The extraordinary level of innovation and creativity the Internet has unleashed.

Your work for the class will consist of daily readings, in-class discussions, ten blog posts, a book review, and a self-scheduled 24-hour take-home exam.

Readings

Most of the readings are contained in the official course reader:

Occasional other readings will be linked from this syllabus.

The readings are divided into assignments, one per class. I have provided a list of “preparation questions” for each assignment. They’re meant to walk you through the readings; if you’re reading closely enough, you should be able to give at least a tentative answer to all of them. These questions will typically serve as a starting point for class discussion.

The readings also contain a number of longer “problems.” Most of them are based on actual cases or stories from the news, but with the details tweaked. We’ll discuss the problems in depth in class; I expect you to have thought through them in detail. Although they emphasize the day’s topics, anything in the course—in fact, anything you’re learned in law school—is fair game.

You will also need a copy of Hal Abelson et al., Blown to Bits (2008), ISBN-13: 978-0-1371-3559-2, available at the bookstore. We won’t directly discuss this material in class (and you don’t need to bring it with you), but it will provide useful background.

Class Meetings

We meet Tuesdays and Thursdays, 11:15–12:30 in room W420

I’ll post videos of each class, aslong with my slides, to Blackboard after each class. (I have some dramatic surprises that I don’t want to spoil).

Weblog

There’s a course weblog on Blackboard. You’re responsible for posting ten blog posts, each between 200 and 300 words. Each post should be one of the following:

I also encourage you also to post comments following up on your classmates’ posts and to post interesting Internet law news stories, whether there is an assignment due or not.

The assignments are due at 11:59 PM on the following dates, each of which is the day before one of our Tuesday classes:

The blog posts will count for 25% of your grade; each assignment will be graded on a check-plus / check / check-minus / no credit basis. There will be no credit or do-overs for late or missed posts.

Book Review

You are required to sign up to read and review one of a long list of Internet Law-related books. (You are also free to pick a book not on the list, provided you clear the choice with me.) Your review should be more than 3 pages and less than 4, typed, double-spaced, 12-point Times, etc.

In it, you should discuss:

The book review assignment is due, in hard copy, in class on April 6.

Exam

There will be a 24-hour take-home self-scheduled final exam. The exam will be open book and subject to a strict page limit. To reflect the work you have put in on your blog and book-review assignments, the exam will be shorter than in previous years.

Grading

The assignments count as follows:

I may adjust your grade by one third up or down for class participation. I consider good class participation to be anything that helps your classmates learn.

Contact

Professor Grimmelmann:

TAs:

This syllabus is at http://james.grimmelmann.net/courses/internet2010S/

First Assignment

The first reading assignment is available here

Schedule

Introduction: Technology, and Theory

Computers

Welcome, administrative matters, themes of the course, does law change when computers are involved?

The Internet

Computer and Internet technology, the nature of “cyberlaw,” modalities of regulation (law, markets, social norms, architecture).

Jurisdiction

Cyberspace

The nature of “cyberspace,” the Internet as a separate jurisdiction, governmental interests in controlling online activity.

Law

Governmental power online, conflicting national laws on a global Internet, data havens.

Code

Geolocation, filtering, regulation by software, Dormant Commerce Clause analysis of state Internet regulation, spam.

Intermediaries

Intermediary power, state action and company town doctrine, search engine rankings, spam blocking.

Personal Jurisdiction

Personal jurisdiction and due process, effects-based and intent-based tests, contractual choice of forum.

Speech

Free Speech

Speech torts, speech versus conduct, liability for hyerlinking, “true threat” doctrine.

Governmental Speech Regulation

Pornography and the First Amendment, Congressional attempts to regulate online speeech.

Section 230

Intermediary (non-)liability for user speech.

More Section 230

Recent developments in the scope of Section 230 intermediary immunity.

Privacy

Anonymity

Anonymity and pseudonymity, subscriber information, civil standards for compelled disclosure of user identities.

Encryption

Fourth Amendment searches and seizures, Fifth Amendment self-incrimination, cryptography,

Surveillance

Wiretap Act, Stored Communications Act, more Fourth Amendment issues.

The End of Privacy?

Social networks, user profiling, privacy policies, Fair Information Practices, contested privacy norms.

Hacking

CFAA

Computer crime, Computer Fraud and Abuse Act, terms of service violation as criminal act.

Trespass

Trespass to chattels, nature of cyberspace reconsidered, bots, spam yet again.

Contracts

Online contract formation, clickwrap and browsewrap, unconscionability.

Trademarks, Domain Names, and Virtual Property

Trademarks

Trademark basics, metatags, keyword advertising, intermediary liability for trademark infringement.

Domain Names

Cybersquatting, typosquatting, ACPA and domain-name-specific statutes, gripe sites.

ICANN

Domain-name-system history, Internet governance, private trademark systems, domain names as property, UDRP.

Copyright

Copyright Principles

Fixation and copies, contributory and vicarious copyright infringement, substantial noninfringing uses.

Section 512 and Hosting

Section 512 notice-and-takedown, limits of the Section 512 safe harbor, use and abuse of the takedown process.

Peer-to-Peer

Peer-to-peer technologies, history of file-sharing litigation, filesharing as fair use, identifying users redux, infringement by inducement.

DMCA Section 1201

DRM technology, Section 1201 anticircumvention liability, media distribution business models, disruptive innovation, free speech issues.

Open Source (and Beyond)

Software licensing, open-source software, free software, GPL- and BSD-style licenses, enforceability of software licenses.

Conclusion

Network Neutrality

Telecommunications basics, network neutrality, network and software innovation.

Final Exam