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:
How regulation changes when it’s carried out by computers, rather than by people.
Whether going online increases or decreases government control.
The new kinds of power possessed by online intermediaries.
The extraordinary level of innovation and creativity the Internet has unleashed.
Readings
You will need:
Raymond S.R. Ku and Jacqueline D. Lipton, Cyberspace Law (2d ed. 2006), ISBN-13: 978-0-7355-5736-9
Hal Abelson et al., Blown to Bits (2008), ISBN-13: 978-0-1371-3559-2
The statutory supplement that I will prepare and distribute
Other readings will be linked from this syllabus. We will not discuss the problems from the casebook.
Class Meetings
We meet Tuesdays and Thursdays, 2:30-3:45 in room B500.
Policies
Here’s what I expect from you:
Please arrive promptly prepared to discuss the day’s assigned readings. Note that there are not dates by the individual assignments; you’re responsible for paying attention to where we are and reading the “next” assignment each time. I promise to stick closely to a one-assignment-per-class pace.
Please also arrive having thought about how you would answer the preparation questions I’ll post along with each assignment. These questions track closely the issues we’ll discuss in class.
I’ll call extensively on you in class, mostly at random. I’ll do everything I can to make the experience supportive and unthreatening.
Bring your casebook with you to class, along with any supplementary material. (You don’t need to bring Blown to Bits with you.)
If you must miss a class session, please try to let me know beforehand. (If you don’t, I might accidentally call on you in your absence.)
It’s always okay to interrupt me with a question. If something seems unclear to you, its likely that others are also wondering the same thing.
In class discussions, you should be respectful of and courteous towards your classmates. One of the skills you are learning as law students is how to be friendly and professional while disagreeing.
There will be no computer use during class. I expect our discussions to be more focused and more engaging as a result. Of course, I’ll make an exception to the no-computer rule for any student for whom the use of a laptop is an accommodation approved by the Office of Student Life.
I’ll post the sides I use in class to this page as soon after each class session as I’m able. I’ll also be making an audio recording of each class session and making the recordings available online.
There’s a course weblog on Blackboard. You’re responsible for posting ten assignments during the semester. The assignemnts are due at 11:59 PM on the following dates:
September 1
September 8
September 15
September 22
October 6
October 13
October 20
October 27
November 3
November 10
Each of these dates is the day before one of our Tuesday classes; your post should be an answer to one of the preparation questions for that class. Your posts should be more than 150 and less than 250 words. That’s enough to get across one idea clearly and with evidentiary support.
The blog posts will count for 20% of your grade; each assignment will be graded on a check/no-check basis. My threshold for giving you a check will be generous, but there will be no do-overs for missed posts.
I also encourage you also to post comments following up on your classmates’ posts and to post interesting Internet law news stories you come across to the blog. It should be a place of conversation that you take in your own directions.
Exam
There will be a 24-hour take-home self-scheduled final exam. The exam will be open book and subject to a strict word limit. You should not need to spend more than six hours on it. The 24-hour period is designed to allow you to take the exam under comfortable conditions and with no unnecessary stress. You are responsible for anything in the readings or discussed in class, with the emphasis on what has been discussed in class.
Last year’s exam and exam memo are available from the syllabus.
Grading
The exam counts for 80% of your grade. Each of your ten posts to the course blog counts for 2%. 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
Office: Room 706, 40 Worth St.
Phone: (212) 431-2864
Email: jgrimmelmann (at nyls)
Office Hours: Tuesdays 9:00 to 11:00 and by appointment
Please put “Internet Law Course” somewhere in the subject line of any course-related email to me so that I can give it proper attention quickly.
These three cases involve areas of law we won’t cover in this course (public utilities, banking, and civil rights). They don’t even involve the Internet. What do they have in common?
The Kennison court implies that the result would have been different if the defendant had dealt with a human, rather than with a computer. Why? Would the result in Pompeii Estates or Rogan have been different if the defendants there had dealt with humans, rather than with computers?
A later Supreme Court case, Arizona v. Evans, 514 U.S. 1 (1995), effectively holds that the Terry Rogans of the world cannot sue police officers who arrest them based on mistaken computer records. (Don’t worry about the legal reasoning involved.) Why might this rule make sense as a practical matter? Does the fact that Terry Rogan can’t sue the arresting officers affect the issue in Rogan: whether he can sue the officers who put his name into the NCIC?
(Discussion) If you receive some information from a computer, are you allowed to take the computer at its word? If you put information into a computer, are you now responsible for all the consequences? What about the person who provides the computer? The person who programmed it? Who, if anyone, ought to be held responsible?
Judge Easterbook asks about cyberlaw, “Isn’t this just the law of the horse?” What does he mean by “the law the of the horse?” Would you take a course in horse law? What are you hoping for from this course?
Lessig talks about “four modalities of regulation.” What are they? Give an example of each. (Don’t just repeat Lessig’s examples. Think of your own.)
In this course we’ll talk a great deal about the Internet’s “architecture.” Is this the kind of architecture you can walk around in? Why does Lessig use that word?
Most of today’s class will be lecture. Define the following terms, and check your answers against the lecture.
Dow Jones could be read to say that “cyberspace” is everywhere and that every government has a right to control what happens there. Explain why that’s the natural consequence of Dow Jones-style reasoning.
What’s wrong with that view, according to Barlow? What’s wrong with it, according to Johnson and Post? (Hint: These two questions have different answers.)
Voyeur Dorm could be read to say that “cyberspace” is nowhere and that no government has a right to control what happens there. Is that the best way to read it, or is there another way to think of it?
Which would be better: letting every government on Earth regulate “cyberspace” or saying that no government can regulate it? Is there a middle ground?
Does Kerr’s article help at all in thinking about the issues from last time?
What is a data haven? Why would you use one? Should Jay Cohen have used one? Should Yahoo have?
By 2003, HavenCo had stopped offering data haven service from Sealand. Why did it fail?
This isn’t a class in American gambling law, so think about the policy issues. Has Antigua imposed its values on the U.S.? Has the U.S. imposed its values on Antigua?
Yahoo! had a very strong argument that the French judgment was unenforceable in a U.S. court. What’s the difference between obtaining and enforcing a judgment? Why did Yahoo!–an American company–nonetheless comply with the French judgment? (Ignore the issues about identifying users’ nationalites for now; we’ll talk about them next time.)
Do you think that the international legal system is capable of sorting out the viable middle ground we were looking for last time?
Jack Goldsmith & Tim Wu, Digital Borders, Legal Affairs (Jan. 2006)
CDT v. Pappert, 337 F. Supp. 2d 606 (E.D. Pa. 2004) (section on the Dormant Commerce Clause)
Questions:
After doing today’s readings, can you think of any more reasons why HavenCo failed?
What’s a “bordered Internet?” Is it the viable middle ground we’re looking for? How much would it look like the Internet we’re familiar with?
Pappert shows you the Dormant Commerce Clause analysis that governs state Internet regulation. Read the two tests closely. Imagine a state law that criminalizes sending spam to state residents. Would that law pass the Pike and per se tests?
Compare and contrast the blocking required by France, by Pennsylvania, and by China. Would there be a legal obstacle to an American ISP voluntarily choosing to implement such blocking?
Which would you prefer: that ISPs never block content, that they have one uniform worldwide blocking policy, or that they block any content banned by local government? Does it matter what kind of content is being blocked?
Why might Google have lowered Search King’s ranking? Can you think of any circumstances under which it might have been wrongful? Does the result in Search King provide sufficient oversight of potential search engine misbehavior?
What good does spam filtering do? What harm can it do? Who should be entitled to decide on the proper tradeoff? Do Media3 and White Buffalo get this last question right?
Should the University of Texas and MAPS be held to different standards of responsibility because one is public and the other private?
If the executives at Google wanted to destroy your law practice, what could they do to you? What could MAPS do?
Do we need private parties online to protect us from government power, or vice versa?
What’s the difference between personal jurisdiction and choice of law?
What’s the difference between general and specific personal jurisdiction?
An older strain of cases focused on the “effects” of online conduct and tended to find personal jurisdiction wherever the effects of the defendant’s conduct were experienced. What’s the difference between the effects approach and the Young “intent to direct” approach? Is Dow Jones an effects or an intent-to-direct case? How about Thomas?
What would Orin Kerr say about Westside Story?
All four cases for today involve lawsuits in which all of the parties are American. Why are the parties litigating the personal-jurisdiction issue when the plaintiff could just have filed suit in the defendant’s jurisdiction?
Courts usually uphold forum selection clauses. Any questions?
Free speech doctrine can be confusing, because it’s so complicated. For our purposes, the key is the distinction between “protected” and “unprotected” speech. “Obsecene” material is one category of unprotected speech. What are the three prongs of the Miller definition of obscenity? Is pornography obscene?
Child pornography is another category of unprotected speech. How is it defined? Can there be non-obscene child pornography? Obscene material other than child pornography?
The other distinction to keep in mind is between a facial overbreadth challenge to a law and an as-applied challenge. All three cases for today are facial overbreadth challenges. What’s the difference?
The overbreadth doctrine polices the boundary between protected and unprotected speech. The actual test is that a statute is overbroad if it prohibits a substantial amount of protected speech. The goverment in Reno argued that the knowledge requirement (see section VIII) and the affirmative defenses (see section IX) meant that no protected speech was actually being restricted. Make sure that you can explain the reasoning behind these arguments–and why the Supreme Court rejected them.
Does Reno call into question the constitutionality of the statute under which the Thomases were convicted? Justice O’Connor’s Reno concurrence is famous for its “zoning” analogy. Explain the analogy. Does it have any bearing on how we think about Thomas?
After Free Speech Coalition, is it legal to possess child pornography? To possess virtual child pornography? To sell child pornography? To sell virtual child pornography?
Another piece of first amendment doctrine is the idea of less restrictive alternatives. A content-based restriction on speech will be struck down if there are other available alternatives that would be equally effective but restrict less protected speech. Does Ashcroft v. ACLU hold that filtering is such an alternative?
What’s “overblocking?” If government-mandated filters result in overblocking, isn’t that automatically an overbreadth problem? Why doesn’t Justice Rehnquist care about it?
What’s the difference between the filtering problems discussed in this excerpt from Pappert and the filtering problems discussed in the Dormant Commerce Clause excerpt?
Pappert was decided before ALA, which is why I haven’t given you its First Amendment discussion. Under ALA how would it come out, and why?
Could Attorney General Cuomo legally have ordered Verizon to block the alt. hierarchy?
Section 230
47 U.S.C. §230
Casebook 203-12 (Zeran, Drudge)
Questions:
I cannot overstate how important Section 230 is. It will be on the final. If I had to pick one thing in this course that I wish every student graduating from law school knew, I’d pick Section 230. As construed by the courts, it’s (a) relevant in a wide range of cases, (b) clear and easy to understand, and (c) very surprising. Get familiar with it. Now state the rule, in your own words, in one sentence.
Section 230 was part of the legislative deal that produced the Communications Decency Act. How does an immunity for ISPs and other online intermediaries fit with a law punishing putting indecent material online?
Explain the distinction between “publisher” and “distributor” liability at common law. Explain Zeran’s holding in terms of these categories. Now explain it again, slowly. Now test yourself: After Zeran, if you find a defamatory post about you on AOL, can you sue AOL? What if you pick up the phone and call AOL and tell them, “There’s a defamatory post about me!” Your answers should be “no” and “no.” Explain why.
There were three potential defendants in Zeran: Ken ZZ03, AOL, and KRXO. Ken Zeran recovered nothing from any of them. He couldn’t sue KRXO because they didn’t harm his reputation with anyone who actually knew him; Zeran holds that he couldn’t sue AOL; why couldn’t he sue Ken ZZ03? How about Sidney Blumenthal’s suit against Matt Drudge; would that one succeed?
Drudge extends Zeran. How? How is what AOL did to Sidney Blumenthal worse than what it did to Ken Zeran?
How would AOL have to change the way it does business if it were held liable as a distributor? If it were held liable as a publisher?
Doe v. Ciolli (D. Conn. complaint filed June 8, 2007)
Questions:
The last decade has seen Section 230 grow by leaps and bounds. Today’s cases show its limits (or lack thereof). Each case explores a different boundary. What are they?
Explain what the following sentence from Doe v. MySpace means: “Plaintiffs argue the CDA does not bar their claims against MySpace because their claims are not directed toward MySpace in its capacity as a publisher.” Why does the court disagree? Does Zeran compel this result?
In Roommates.com, don’t confuse the question of actual liability under the Fair Housing Act with Section 230 immunity from Fair Housing Act claims. Just because something gets past Section 230 doesn’t automatically mean that it’s actually a Fair Housing Act violation. It’s still a fair question, though. Suppose that Section 230 didn’t exist. List the things that Roommates.com and its users do; do any of them violate the Fair Housing Act, as described in the opinion?
What is the distinction in Roommates.com between discriminatory answers to questions using drop-down menus and discriminatory answers in free-form text fields? Are you convinced? If I type “rent apartment to whites” into Google, can Google rely on Section 230? Why or why not?
Is Anthony Ciolli a proper defendant in Doe v. Ciolli? Put another way, does the complaint allege sufficient facts to defeat a motion to dismiss by Ciolli, if he cites Section 230?
18 U.S.C. §§ 2701-2703, 2711 (Stored Communications Act, which is part of ECPA)
Casebook 162-64 (McVeigh v. Cohen)
Casebook 490-94 (Hambrick)
Questions:
Who is Mr. Slippery?
What standard does the Doe court use to determine whether the plaintiff’s claim is sufficiently meritorious to justify identifying an anonymous defendant? Did Doe II’s claim meet that standard? What evidence does the court rely on in making that finding?
AK47 is apparently a law student. Have you done anything that might someday form the basis for a letter like the one he sent?
In Doe, did AT&T violate AK47’s rights under ECPA? Was AT&T requried to contest the subpoena? Why did AT&T notify him of it? In McVeigh, why didn’t AOL object to the phone call from Legalman Kaiser? Do your answers shed any light on how Internet intermediaries feel about Section 230 (from last time and the time before)?
Hambrick isn’t an ECPA case. Why wasn’t he suing under the ECPA? What was at stake? Given that it isn’t an ECPA case, why does the court discuss the ECPA at all?
Surveillance
Blown to Bits, ch. 5
Casebook 494-97 (Charbonneau)
Quon v. Arch Wireless, No. 07-55282, 2008 U.S. App. LEXIS 12766 (9th Cir. June 18, 2008)
Casebook 513-18 (Konop)
18 U.S.C. §§ 2510, 2511, 2515, 2520 (Wiretap Act)
18 U.S.C. §§ 3121, 3127 (Pen register/trap and trace)
Questions:
What’s the high-level distinction between the issues raised last time and the issues raised by these cases and statutes? There’s a reason the materials are divided up the way they are, and yes, it is the obvious one.
The Wiretap Act, the SCA (from last time), and the pen register/trap and trace chapter collectively make up the Electronic Communications Privacy Act. What’s the high-level distinction between these three parts?
Did Charbonneau lose because he made his statements “to” a government officer? Because he made them in a place open to the public? Or for some other reason?
Would the result in Quon have been different if Arch Wireless had disclosed Quon’s messages to a private party? Would the result in Konop have been different if the government had looked at the messages on Konop’s web site?
Konop also brought a claim under the Stored Communications Act, specifically, under 2701(a). Why did he bring that claim under 2701(a), rather than under 2702(a)? The parties stipulated that the messages were an electronic communication, that they were in electronic storage, that his web site was an electronic communications service. Why? Why did he nonetheless lose on this claim? (Hint: read all of 2701.)
Quon holds that with respect to text messages that have already been delivered, Arch Wireless is an ECS, rather than an RCS. Is that correct? Konop holds that you can’t “intercept” an email after it’s been delivered. Is that correct? Are your answers to these two questions related to each other?
Do you agree that Quon could reasonably expect that the Ontario Police Department would not read his sexually explicit text messages?
Encryption
In Re Boucher, 2007 WL 4246473 (D. Vt. Nov. 29, 2009)
Do you ever use encryption? How about ISPs, software companies, e-commerce sites, and other online services? Where do you think these companies come down on the issues in Bernstein?
Boucher reveals one way the government can look at your encrypted files. Scarfo reveals another. How many others can you think of? Which do you think are most important in practice?
Are you convinced that forcing Boucher to reveal his passphrase would be “testimonial?” Could the government solve the problem by granting him immunity from having revealed in court the fact that he knew the password? Is there anything in the facts of this case that makes Boucher not the best defendant to raise the Fifth Amendment argument?
Does Scarfo have a Fifth Amendment claim? Why or why not?
A recent paper by a team of computer scientists shows how an attacker can recover a password from a computer’s RAM, even when the computer is in sleep mode. (One way involves blowing compressed air on the memory chips.) While sitting in a coffee shop, you get up to order another quadruple espresso and put your computer in sleep mode. An FBI agent sits down and quickly uses the attack to recover your password, which she then types in, and copies files from your hard drive to a USB thumb drive. Do you have a valid Fourth or Fifth Amendment claim? What if she has a search warrant?
The CFAA is confusingly drafted, partly because it’s been amended repeatedly. Focus on sections 1030(a)(5), 1030(e), and 1030(g). Note that it’s both a civil and a criminal statute. As Allen shows, states have their own anti-hacking statutes as well. They share common concepts with the CFAA, but sometimes define them differently.
Consider the following hypothetical: Mr. Bluebeard owns a computer. He gives Mrs. Bluebeard an account on the computer, one that has no technical restrictions on what it can do. He also tells her that she can do anything she wants with the computer except look in the Secret001 directory. One day, when Mr. Bluebeard is away on a business trip, she looks inside the directory, and discovers that he has a secret collection of Hannah Montana MP3s. According to the cases we’ve read, has she violated section 1030(a)(5) of the Computer Fraud and Abuse Act? Consider whether she has “intentionally accessed” the computer, whether it is a “protected computer,” whether she acted “without authorization,” and whether she caused “damage or loss.” Use the cases and statutory section assigned for today to answer these questions, keeping in mind that the cases may not be consistent with each other and that the statute has been amended since these cases were decided.
Did the defendants in the three caes for today damage the plaintiffs’ computers? Did they impair the plaintiffs’ ability to use the computers? Would there have been damage or impairment if more people had done what the defendants did?
What do you make of Justice Brown’s analogy, in her Hamidi dissent, to putting unwanted bumper stickers on cars? If you think Hamidi is correctly decided, how do you deal with her arguments?
The Coop’s argument is that it can exclude price-checkers by relying on the tort of trespass to real estate, which doesn’t require a showing of harm. Now that you’ve read the Internet cases, does that seem right? Could it be that real-world trespass law is broken?
Is Hamidi a free speech case or a trespass case? Both? Neither?
Did the defendants in these cases violate the Computer Fraud and Abuse Act? Does your answer to that question tell you anything useful about the proper scope of trespass to chattels online?
Distinguish shrinkwrap, clickwrap, and browsewrap.
If your client is creating an e-commerce web site and wants to make sure that users will be bound by its terms of service, what procedures do you recommend that the site use? If your client wants to change its terms of service after the site launches, what procedures do you recommend?
If your client wants to use an e-commerce web site without being bound by its terms of service, what advice would you give?
I have reprogrammed my web browser so that whenever I request a web page from a server, it sends the following text to the server: “By responding to this HTTP request, you accept legal responsibility for any resulting harm.” Technically, I send the text as the “User-Agent string,” which would ordinarily tell the server, for example, whether I’m using Internet Explorer, Firefox, or Safari. The standard that defines the HTTP protocol neither requires nor forbids me to use the User-Agent string in this way. If a server sends me back a page with malware that crashes my computer, can I sue the site for my damages? Does it matter whether the site has its own browsewrap terms of service disclaiming such liability? (This is a hard question with an uncertain answer; take your best shot.)
Trademarks and Domain Names (3 classes)
Trademark Use
Casebook 277-79 (Brookfield) (read the facts at 234-35 first)
Are you persuaded by the billboard analogy in Brookfield? How is it accurate? How is it misleading?
Search enginges don’t (and haven’t for a long time) paid any attention whatsoever to the contents of metatags. Does this fact change your view of Brookfield at all?
These three cases all deal with the same kind of triangle: trademark owner, competitor, and intermediary. Make sure you’re thinking about the third party, even when only two of them are in court. In Brookfield, could the plaintiff successfully sue the search engines for trademark infringement? In Rescuecom, could the plaintiff successfully sue the keyword advertisers? In Tiffany, could the plaintiff successfuly sue the individual sellers?
I go into a restaurant and order a Coke. The restaurant gives me Pepsi instead, and Pepsi pays the restaurant five cents each time it does. Trademark infringement? What if the waiter says to me, “We also have Pepsi, if you prefer,” and Pepsi pays the restaurant five cents each time the waiter offers this choice. Trademark infringement? Is either of these scenarios a good analogy for Google’s practices in Rescuecom?
Per Section 230, eBay has no responsibility whatsoever for defamatory statements made by its users. Is the rule different for trademark-infringing statements made by its users? Should it be?
Domain Names
15 U.S.C. 1125(d) (Lanham Act 43(d)) (ACPA)
15 U.S.C. 1129
18 U.S.C. 2252B
18 U.S.C. 1037(a)
Casebook 221-34 (Panavision, Bucci)
Casebook 248-50 (Electronics Boutique)
Casebook 269-76 (Bally)
Questions:
Last year, I had my students pay attention to the different tests for trademark infringement, dilution, and cybersquatting. But I was younger then, and I did silly things like that. In practice, you’ll think about all three, but for this class, you should focus on the ACPA analysis. Its list of “bad faith” factors subsumes pretty much everything that would come up under the other causes of action. Analyze all four cases as though they were ACPA cases. Would the ACPA result be different in any of them?
Is Section 1129 redundant, given the existence of the ACPA? Why or why not?
Is Section 2252B constitutional, given what you know from our free speech unit?
What does this section from the CAN-SPAM act have to do with our topic for today?
What are the different practices our defendants (or potential defendants, under the stautory sections) for today are engaged in? Which of them are good for society? Which of them are ethical? Can you think of other slimy things people do with domain names? Should the legal system try to stop them?
There’s a clash of property rights here: strong trademark protection versus secure rights in domain names. How so? The ACPA attempts to strike a balance. Does it strike the right one? Would we be better off if domain names were handed out to trademark owners, rather than to the first person to register them? Would we be better off if trademark law didn’t apply at all to domain names?
How confident are you that the nyls.edu domain name is secure from attempts by pornographers, spammers, cybersquatters, and other online ne’er-do-wells to seize it and use it for their own nefarious purposes?
Compare the UDRP with the ACPA. How are they different, substantively and procedurally? Which would you prefer to use as a plaintiff? Which would you prefer to face as a defendant?
Do you think that the Springsteen panel got it right? Should UDRP panels hand over domains in cases like this one? Could Bruce Springsteen bring a legal action, now that he’s lost the UDRP arbitration? Could Burgar bring a legal action if he had lost?
ICANN is currently considering a proposal under which anyone who met some basic technical conditions, and paid a six-figure fee, could set up a new TLD. Should it go forward with that proposal? If it does, should it treat an application for .xxx like any other application (e.g. for .lolcat, .news, or .circus), or are there special reasons to approve or reject .xxx?
Does the United States government have a role in setting DNS policy? Should it? What’s ICANN’s status, in theory and in practice?
Copyright doesn’t prevent all “use” of a copyrighted work. Only uses that violate one of the six statutory exclusive rights are considered infringement. The exclusive rights in the statute haven’t changed much since 1976, but the world has changed around them. Is copyright more significant or less significant than it was three decades ago? Why?
After MAI, is it copyright infringement to download an MP3 to your hard drive? To copy it to your iPod? Is it copyright infringement to point your browser at a web page? For the router in the middle of the network to pass along the packets describing that web page? (Don’t consider any possible licenses or fair use defenses.)
If I put a web page on my server, and that web page contains (also on my server) a copyrighted photograph I’m using without permission, but no one else ever views the web page, have I infringed copyright? (Think carefully)
If I visit a copy shop and use a self-serve machine in the front (five cents per copy) to photocopy a book, has the copy shop directly infringed copyright? What if I hand the book to a clerk and she photocopies it for me? If your answer to either question was “no,” is the copy shop contributorily or vicariously liable? (Don’t consider a Sony defense; we’ll save that for next time.)
Substantial Noninfringing Uses
Casebook 352-60 (Sony majority)
Casebook 327-43 (Napster II, Grokster)
Questions:
Name a technology in widespread use that would have been illegal if not for Sony. (Or argue that there are no such technologies.)
Is Sony directly liable for infringing copies made by consumers using Betamaxes? Is it contributorily liable? Is it vicariously liable? Explain carefully where the significant-non-infringing-uses rule fits into your answer.
How is what Napster does factually different than supplying a Betamax? Where does the legal analysis accordingly diverge?
How is what Grokster does factually different than what Napster did? Where does the legal analysis accordingly diverge?
Is Grokster capable of substantial noninfringing uses? Why does it nonetheless lose? Describe both the specific bad facts for Grokster and the legal rule that treats them as significant.
Fair Use
17 U.S.C. § 107
Reread Sony
Casebook 367-71 (Napster I)
Casebook 378-86 (Perfect 10 v. Google, Gonzalez) (The facts of Perfect 10 are on page 343)
Questions:
What’s time-shifting? Is it a fair use? Which of the four factors matter most here?
What’s space-shifting? Is it a fair use? Which of the four factors matter most here?
What’s preview sampling? Is it a fair use? Which of the four factors matter most here?
What’s thumbnailing? Is it a fair use? Which of the four factors matter most here?
Explain, in Napster I, how the fair use findings and the substantial-noninfringing-uses findings are related.
Section 512 is dense. There’s a lot going on here, and it’s important to read it closely. The first thing to do is get straight which immunities are intended for which sorts of entities. For each of the following, classify its actions as falling under 512(a), 512(c), and/or 512(d):
Verizon (when it supplies you with Internet service)
YouTube
Google Web Search
Craigslist
Look at 512(c)(1)(A). Does this language look at all familiar? How about 512(c)(1)(B)? What’s the point of even having Section 512 if it contains exclusions like these?
Suppose you find a video of yours on YouTube without permission. What steps should you take to have it removed? (Provide a specific list of necessary information, and determine what do to with it. 512(c) will help.)
Now imagine yourself on the other end of that equation; someone has sent a DMCA notice to YouTube. What do you expect that YouTube will have done with your video? Can you do anything about it? 512(g) may be useful.
Is this overall process tilted in your favor, or in the copyright owner’s favor? You may, but need not. consider 512(f) and 512(h). How does this regime differ from the Section 230 regime? How does it stack up to the system for trademark infringement?
CCBill walks through a number of issues in interpreting Section 512. Did the court resolve them correctly, in terms of allocating overall burdens of preventing infringement, as between Perfect 10 and CCBill?
Section 1201
17 U.S.C. § 1201
Casebook 388-403 (Streambox, Remeirdes)
Casebook 417-25 (Lexmark)
Questions:
How does the iTunes business model depend on DRM? The DVD business model? The Kindle? Hulu? Pick your favorite DRM-enabled business model and explain why it would fall apart (or would it?) without DRM.
Would DRM fall apart without Section 1201? Why is it considered necessary to have both 1201(a)(1) (anti-circumvention) and 1201(a)(2) (anti-trafficking)? (Don’t worry about the distinction between 1201(a) and 1201(b); scholars have debated it but I have yet to see a case in which it matters.)
Is it a Section 1201 violation to use someone else’s password to log into a web site containing copyrighted works?
2600 Magazine? Remember them? Why are so many hackers (in the good sense) angry enough about Section 1201 to stage “electronic civil disobedience” over it? Why is there a group that calls DRM “Defective by Design?”
Toner cartridges? The DMCA has also been used (unsuccessfully) against garage-door openers. Does this fact tell you anything about the motivations behind its passage? Are there competition concerns about DRM and the DMCA?
Read the correction at the end of Know It All. Does it affect your opinion of Wikipedia? Of The New Yorker? Why?
We don’t have time to explore the legal details of Creative Commons in class, so the videos are a painless way to learn the basics without having to read the licenses. What aspects of the Creative Commons project remind you of Wikipedia? What aspects remind you of the GPL’s philosophy? Is there a rough equivalent to the MIT License among the Creative Commons license options? To the GPL?
What’s the biggest difference between a GPL-style license and an MIT-style license? Why does it matter? Who’d choose one or the other, and why?
If you receive a copy of a GPL-licensed program, can you burn copies to a CD? Can you mail copies on CD other people? Can you charge them $50 to mail a copy on CD?
If you receive a GPL-licensed program, can you make changes to it? Can you distribute your modififed version? Under what circumstances must you release the source code of your changes?
What’s the difference between treating the GPL as a contract or as a license?