Course 7570
The Law of Cyberspace
Property, Contract and Speech in Cyberspace
A Walk on the Wired Side
Fall 2002
Professor Justin Hughes
Office 341
212-790-0260
BASIC INFORMATION
Class room:Room 423
Class hours:Monday4:00pm - 5:15pm
Wednesday4:00pm - 5:15pm
Office hours
Tuesdays and Thursdays, 10:00am to noon. These are informal hours and subject to change as the semester evolves. I am generally available to talk most weekday mornings and am always happy to schedule an appointment in advance, preferably by email.
Exam/Evaluation
Grading in the course will be based on an open book, in-class examination. Although you may access to all your materials, it will be very important to have kept up with the reading when taking the examination.
In addition, class participation will be used to adjust 10% of more of the class upward for class participation as described in Section G.1 of the AAcademics@ portion of the Student Handbook (2001-2002 edition)
Overview
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A few years ago, one of the central debates about the Internet was whether existing laws had or should have any application in cyberspace. Some argued that cyberspace should be its own Ajurisdiction,@ with (or without) laws designed sui generis for the Internet.
Today, Internet law has less idealist visions about a new world order. With the explosion of commercial, social, and political attention on the Internet, cyberspace law has become more a question of Atranslation@: how can laws developed over decades in the real world be quickly translated into the environment of cyberspace? The most interesting Atranslation@ problems arise when some of the legal tools that exist in the real world don=t seem to exist on the Internet. For example, zoning laws help control pornography while balancing First Amendment interests, but a basic characteristic of cyberspace [for now] has been its absence of geography. Similarly, in the print world, the Afirst sale doctrine@ balances the copyright owner=s need for an incentive with our social goal of dissemination works broadly; but how do we maintain that balance in a digital world if copyrighted works are only licensed and never alienated? As befits our focus on speech and property, if time permits we=ll conclude with some readings about democracy and the Internet.
We will focus on some -- but only some -- of the most interesting legal developments related to the Internet, including First Amendment issues, copyright, trademarks and domain names, contract law, database protection, new forms of intangible property interests, and antitrust. There will be substantial emphasis on case law, but there will also be a significant amount of time devoted to discussions of policy and current legislative proposals. Our primary focus will be on U.S. law, but we=ll also spend time looking at developments in the countries of the European Union, Japan, Singapore, South Africa, and in international fora. There are many interesting areas of cyberlaw we will not have time to cover B alternative dispute resolution, internet gambling, taxation of internet transactions, virtual bills of lading [which don=t quite exist yet], cybercrime treaties and statutes, jurisdictional disputes, privacy debates, cyberterrorism, and the currently hot practice area of bankruptcy law for dot.coms.
Readings
Easy access to the Internet will be extremely helpful, but is not required for the course.
Reading materials will be several course packs. I=ve actually spent a lot of time editing down many long opinions from courts eager to make their mark in cyberspace. With case reports, footnotes and citations are often deleted without any annotation B meaning that sometimes an opinion will suddenly have a footnote # 4 where there has been no ## 1 - 3. Edits in the opinions are usually marked (A. . . .@ or A* * *@).
The course pack of first (and possibly second) week readings will be available in the distribution room. On the syllabus, Φ means it is in your course packs; otherwise, take a look off the net. As possible, the library staff will make many of these documents available electronically; more details on this will be forthcoming.
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General Resources
In addition to weekly assignments, there are some web sites you may wish to visit occasionally.
1.The World Intellectual Property Organization (WIPO) E-Commerce site at
2.The Internet Corporation for Assigned Names and Numbers (ICANN)
3. The Electronic Frontier Foundation
4.The Electronic Privacy Information Center
5. The New York TimesACyberTimes@ and CyberLaw Journal at
6. The Center for Democracy and Technology
7. Wiredmagazine
8. The manifesto and reading suggestions of the Technorealists
9. C/Net
10. ZDNET
http://
Internet Terminology
For general help on Internet terminology, if you feel it=s helpful you may want to review the AGlossary of Internet Terms@ at . For a court=s exceptional and exceptionally long description of the Internet, see American Civil Liberties Union v. Reno, 929 F.Supp 824 (E.D. Pa. 1997). The Court made 410 findings of fact, including 356 paragraphs of the parties' stipulation and 54 findings based on evidence received in open court. See 929 F. Supp. at 830, n.9, 842, n.15.
Old-Fashioned Books on Reserve
I will ask that the following old-fashioned, printed books be put on reserve. Some have selections in the required meeting, but all have interesting materials for the study of law in cyberspace:
Stuart Biegel, Beyond Our Control?: Controlling the Limits of Our Legal System in the Age of Cyberspace (MIT Press, 2001)
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Brian Kahin and Charles Nesson, eds., Borders in Cyberspace: Information Policy and the Global Information Infrastructure (MIT Press, 1997)
Brian Kahin and Hal R. Varian, eds., Internet Publishing and Beyond: The Economics of Digital Information and Intellectual Property (MIT Press, 2000)
Lawrence Lessig, Code and Other Laws of Cyberspace (Basic Books, 2000)
Carl Shapiro and Hal R. Varian, Information Rules (Harvard Business School Press, 1999)
Richard Spinello, CyberEthics: Morality and Law in Cyberspace (Jones and Bartlett Publishers, 2000)
Cass Sunstein, republic.com (Princeton University Press, 2000)
Reg Whitaker, The End of Privacy: how total surveillance is becoming a reality (The New Press, 1999)
Disclaimer
At the core of many of the legal and policy battles raging around the Internet are some pretty dicey subjects. After all, pornography remains the most profitable sector of business-to-consumer e-commerce; Internet disputes concern everything from Nazi paraphenelia to cross-dressing. Everyone will be expected to deal with these subjects as good lawyers should B with an appropriate mix of seriousness, open-mindedness, sensitivity, and good humor.
# # # # #
PRELIMINARY OVERVIEW SYLLABUS
I.Introduction - Cyburbia or Cyberkeley?
General Understanding of the Internet
II.Free Speech issues: hate speech, pornography,
defamation, the clash of cultures, and the digital fringe
IIICopyright and its Digital Kin
IV.Contract Law: E-Signatures, Digital Records, and Consumer Protection
V.Trademarks and Domain Names
VI.Trespass on the Internet?
VII.Database Protection
VIII.Antitrust, Patents, and the Economics of Planet Qwerty
IX.Democracy and Society in Cyberspace
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EXPANDED SYLLABUSB as of November 21, 2002
Introduction - Cyburbia or Cyberkeley?
General Understanding of the Internet
A. Michael Froomkin, AThe Modern Hydra,@APacket Switching,@ADecentralized Standard Setting@ and AGrowing Uses and User Base@ topics from The Internet as a Source of Regulatory Arbitrage, in Brian Kahin and Charles Nesson, Borders in Cyberspace 130 (1997).Φ
Valdis Krebs, Self-Organizing Internet Economy, [a fantastic website to understand the economic network of the Net -- this is worth more than just a quick look; go to the Ainteractive industry map@ at the bottom and explore relationships of different companies (via right clicking on a company).]
Farouk v. Mahmoud, Civil Status Court, Alexandria, Egypt, June 1, 2000 Φ
James Boyle, Foucault in CyberspaceΦ
[read only parts I-III, although the rest of the essay is good]
Free Speech issues: hate speech, pornography,
defamation, the clash of cultures, and the digital fringe
how do we view the Net?
Eugene Volokh, Cheap Speech and What It Will Do, 104 Yale L. J. 1805 (1995) Φ [read only Parts II and III, which are reproduced]
Reno v. American Civil Liberties Union (Reno I), 521 U.S. 844; 117 S. Ct. 2329; 1997 U.S. LEXIS 4037; 138 L. Ed. 2d 874; 65 U.S.L.W. 4715; 25 Media L. Rep. 1833; 97 Cal. Daily Op. Service 4998; 97 Daily Journal DAR 8133. [renovaclu1999.]Φ
American Civil Liberties Union v. Reno (Reno III), 217 F.3d 162, 2000 U.S. App. LEXIS 14419 (3d Cir. 2000) [acluvreno2000case.]Φ
Standards and Responsibility for Defamation
Zeran v, America Online, 129 F.3d 327; 1997 U.S. App. LEXIS 31791; 25 Media L. Rep. 2526; 10 Comm. Reg. (P & F) 456 (4th Cir. 1997) [Zeran2.] Φ
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Blumenthal v. Drudge and America Online, 992 F. Supp. 44; 1998 U.S. Dist. LEXIS 5606; 26 Media L. Rep. 1717; 12 Comm. Reg. (P & F) 367(D.D.C. 1998) Φ
Godfrey v. Demon Internet Ltd., [1999] 4 All E.R. 342 (Queen=s Bench Division, March 26, 1999) [godfrey1999.] Φ
EU Directive on Electronic Commerce, Directive 2000/31/EC of the European Parliament and the Council of 8 June 2000 [EUe-commerce.]
[review articles 12 - 15 reproduced here and any Awhereas@ clauses (which serve as a kind of legislative history) that you think are relevant]Φ
+ + + + +
Extra Distribution # 1
Interim Report by Copyright Council of Japan (First SubGroup) Regarding ISP Liability, December 2000 Φ
[detailing two cases of defamation and ISP liability in Japanese courts]
+ + + + +
Standards for Hate Speech
UEJF et LICRA v. Yahoo et Yahoo France, [Interim Court Order of November 20, 2000], Paris Tribunal de Grande Instance, No. RG: 00/05308 Φ
Ben Laurie, An Expert=s Apology, November 21, 2000. Φ
Yahoo! Inc. V. La Ligue Contre Le Racisme, Case No. C-00-21275 JF, Order Granting Motion for Summary Judgment, District Court for Northern California, November 7, 2001 Φ
Philip Reitinger,Legal Aspects of Government-Sponsored Prohibitions Against Racist Propoganda on the Internet: the US Perspective, Seminar on the Role of the Internet with regard to the International Convention on the Elimination of All Forms of Racial Discrimination, Geneva, November 10-14, 1997 Φ
Commission of the European Communities, Proposal for a Council Framework Decision on combating racism and xenophobia, November 28, 2001, COM (2001) 664 final excerptsΦ
---- end of coursepack #1
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Anonymous Speech and its Limits
McIntyre v. Ohio Elections Commission , 514 U.S. 334; 115 S. Ct. 1511; 1995 U.S. LEXIS 2847; 131 L. Ed. 2d 426 (1995) [mcintyre.] Φ
ComputerExpress v. Lee Jackson, California Court of Appeals, Fourth District, Super.Ct.No. RIC 341-013, excerpts from opinion of November 15, 2001 Φ
Brief Amicus Curiae of America Online, inc. in John Melvin v. John Doe, Superior Court of Pennsylvania, Pittsburgh District, Nos. 2115 WDA 2000 & 2116 WDA 2000, filed February 24, 2001 Φ
<
Copyright and its Digital Kin
WhEn does a Copy Happen?
MAI Systems v. Peak Computer 991 F.2d 511, 1993 U.S. LEXIS 7522 (9th Cir., 1993) Φ[MAIvPeak.wpd]
Who is responsible?
Marobie-FL, Inc. v. National Association of Fire Equipment Distributors, 983 F. Supp. 1167 (E.D. Ill. 1997) Φ
A&M Records v. Napster, Inc., 239 F.3d 1004, 2001 U.S. App. LEXIS 5446, 2001 Cal. Daily Op. Service 1255, 2001 D.A.R. 1611, Copy. L. Rep. (CCH) P28200, 57 U.S.P.Q.2d (BNA) 1729 (9th Cir. Cal. 2001)
Selected provisions of U.S. Copyright Law (Digital Millennium Copyright Act (1998)), 17 U.S.C. ' 512.
Interpretation by the Supreme People=s Court (China) of Several Issues Relating to Adjudication of and Application of Law to Cases of Copyright Disputes on Computer Network, Adopted at the 1144th meeting of the Adjudication Commission of the Supreme People=s Court, December 21, 2000.
+ + + + +
Extra Distribution # 2
Additional pages from Napster appellate decision
+ + + + +
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The New Order
WIPO Copyright Treaty (WCT), World Intellectual Property Organization (1996) Φ
U.S. Copyright Office, The Digital Millennium Copyright Act of 1998: U.S. Copyright Office Summary, December 1998. [read intro and discussions of Titles I and II]Φ
Selected provisions of U.S. Copyright Law (Digital Millennium Copyright Act (1998)), 17 U.S.C. ' 1201, et seq.
Universal City Studios v. Reimerdes, 111 F. Supp. 2d 294, 2000 U.S. Dist. LEXIS 11696 (S.D.N.Y. 2000) Φ
---- end of coursepack #2
In re Tommy Olsson, Göta Court of Appeals (Sweden), Decision B 1009/99. Φ
European Union Copyright Directive, Directive 2001/29/EC of the European Parliament and the of the Council, 22 May 2001 Φ
[along with chronology from <eurorights.org> website; read only actual provisions of treaty B pages 8-13 of printout]
Letter from DVD-CCA=s attorney to Norway prosecutors, alleging criminal conduct on the part of Jon and Per Johansen, January 4, 2000 Φ
Professor Jon Bing, A Legal Perspective on the Norwegian DeCSS Case, January 25, 2000 Φ
Excerpts from Universal City Studios v. Reimerdeson linking issues.Φ
---- end of coursepack #3
Linking and Framing
Futuredontics, Inc. v. Applied Anagramics, Inc., 1998 U.S. Dist LEXIS 2265, 45 U.S.P.Q.2d (BNA) 2005 (C.D. Cal. 1998) Φ[Futuredontics.doc]
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The Shetland Times v. Wills, Court of Session, Edinburgh, Scotland. Text of Interim Interdict, October 24, 1996 [along with dismissal upon settlement].
Kelly v. Arriba Soft Corporation, 280 F.3d 934, 2002 U.S. App. LEXIS 1786 (9th Cir. 2002) Φ
Contract Law: E-Signatures, Digital Records, and Consumer Protection
The Uniform Electronic Transactions Act, in the form of Pennsylvania Senate Bill 555, Session of 1999, signed into law by Pennsylvania Governor Tom Ridge on December 16, 1999 Φ
The Electronic Commerce in Global and National Commerce Act (E-Sign), Pub. L. No. 106-229, 114 Stat. 464 (2000) (codified as 15 U. S. C. '' 7001 - 7006, 7021, 7031) signed into law by the President, June 30, 2000. Φ
ProCD v. Zeidenberg, 86 F.3d 1447; 1996 U.S. App. LEXIS 14951; 39 U.S.P.Q.2D (BNA) 1161; Copy. L. Rep. (CCH) P27,529; 29 U.C.C. Rep. Serv. 2d (Callaghan) 1109Φ
Klocek v. Gateway, 104 F. Supp. 2d 1332; 2000 U.S. Dist. LEXIS 9896(D. Kansas, 2000) Φ
Willams v. AOL, Middlesex County Court, Massachusetts, Memorandum of Decision, Docket No. 00-0962 (February, 2001) Φ
Specht v. Netscape Corporation, 2002 U.S. App. LEXIS 20714, (2d Cir., October 1, 2002) Φ
EU Directive on Electronic Commerce, Directive 2000/31/EC of the European Parliament and the Council of 8 June 2000 [in Coursepack #1]
[review articles not read in our free speech discussion and any Awhereas@ clauses (which serve as a kind of legislative history) that you think are relevant]Φ
Excerpts from Uniform Computer Information Transactions Act(UCITA), as promulgated by the National Conference of Commissioners on Uniform State Laws Φ
UCITA Amendments to Section 112
Chase Online Service Agreement, October 13, 2002 Φ
---- end of coursepack #4
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Trademarks and Domain Names
Sporty=s Farm v. Sportsman=s Market, 202 F.3d 489, 2000 U.S. App. LEXIS 1246 (2d Cir. 2000). Φ[sportys2.wpd]
Panavision International v. Toeppen, 141 F.3d 1316, 1998 U.S. App. LEXIS 7557, 46 U.S.P.Q.2d 1511 (9th Cir. 1998) [toepmark.wpd] Φ
The Internet Corporation for Assigned Names and Numbers (ICANN),Uniform Domain Name Dispute Resolution Policy, posted September 29, 1999. Φ
Allocation Network GmbH v. Steve Gregory, WIPO Arbitration and Mediation Center Case No. D2000-0016 under the ICANN UDRP, March 24, 2000 [allocationdecision.]Φ
National College Athletic Association v. Rosemary Giancola, WIPO Arbitration and Mediation Center Case No. D2000-0836 under the ICANN UDRP, November 28, 2000 Φ
[no need to read part 3 Aprocedural history@]
Vivendi Universal v. Sallen, WIPO Arbitration and Mediation Center Case No. D2001-1121 under the ICANNUDRP, November 7, 2001 Φ
Report on ITO YOKADO DOMAIN NAME ARBITRATION, report from Japan Industrial Property Arbitration Center [decision rendered in early 2001] [d-japandomainnamecase.] Φ
Singapore Domain Name Dispute Resolution Policy, Version 1 - released 6 November 2001. (read only Article 4) Φ
Rules for conducting proceedings under the policy are at:
Playboy Enterprises v. Welles, 7 F.Supp.2d 1098, 1998 U.S. Dist LEXIS 9180, 47 U.S.P.Q.2d (BNA) 1186, 98 Daily Journal DAR 8613 (S.D. Cal. 1998) Φ
Interstellar Starship Services v. Epix, 2002 U.S. LEXIS App. 19632 (9th Cir. 2002) Φ
---- end of coursepack #5
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Trademarks and Domain Names (cont=d)
Ford Motor Company v. 2600, No. 00-CV-71685-DT (E.D. Mich., December 20, 2001)Φ
Discussion Issue: All food roads lead to Kraft Φ
Discussion Issue: What is the value of a misspelling? Φ
Database Protection
Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340; 111 S. Ct. 1282; 1991 U.S. LEXIS 1856; 113 L.Ed. 2d 358; 59 U.S.L.W. 4251; 18 U.S.P.Q.2D (BNA) 1275Φ[Feist2.wpd]
European Union Directive on the Legal Protection of Databases, 96/9/EC, March 11, 1996
Koninklijke Vermande B.V. v. Bojkovksi, Ruling of the District Court of the Hague, The Netherlands, Case No. 98/147, March 20, 1998 Φ
Editorial Aranzadi v. Dealing World Espana, S.A., Judgment of July 2, 1999, Court of First Instance, Alicante, Spain [EditorialAranzadi.wpd]
Maurer, Hugenholtz, and Osrund, Europe=s Database Experiment, 294 Science 789 (26 October 2001) Φ
H.R. 354, ACollections of Information Antipiracy Act,@ as reported from the House Judiciary Committee on October 8, 1999
Deep Linking Takes Another Blow, Wired News, July 25, 2002 Φ
Mainpost v. NewsClub, Munich Upper Court [Bailiff=s Court], ruling of July 5, 2002, partial translation from Newsboosters.com Φ
Explore
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The Administration Statement before the Subcommittee on Courts and Intellectual Property, Committee on the Judiciary, U.S. House of Representatives, concerning H.R. 354, the ACollections of Information Antipiracy Act,@ 18 March 1999,
.
Justin Hughes, Political Economies of Harmonization: Database Protection and Information Patents, paper presented at Frontiers of Ownership in the Digital Economy Conference, Institut Français de Relations Internationales, Paris (June 10, 2002)
Trespass to Chattels
E-Bay, Inc. v. Bidder=s Edge, Inc., Order Granting Preliminary Injunction (N.D. Cal. May 14, 2000), Case No. C-99-21200 RMW. Φ
Excerpts from Dan L. Burk, The Trouble With Trespass, 3 J. Small & Emerging Bus. L. 1 (1998) Φ
Intel Corporation v. Hamidi, California Superior Court, Case. No. 98AS05067, Complaint (October 6, 1998) and Preliminary Injunction (November 24, 1998) Φ
Ticketmaster v. Tickets.com, Minute Order from the Court (C.D. Cal., August 10, 2000) Φ
[an interesting discussion of the mixed problem of allegations of copyright infringement and the new Atrespass@ claims]
--- end of coursepack #6
A Final Overview of Internet Law
Justin Hughes, Cyberspace and the Persistence of Law, 43 Boston College Law Review __ (forthcoming, 2003) presented at Intellectual Property, Ecommerce, and the Internet Symposium, Boston College Law School, Boston (October 18, 2002)
--- end of coursepack #7
# # # # #
Thanks for an enjoyable and interesting class.
Good luck to everyone graduating this December and in June 2003
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MATERIALS NOT USED IN CYBERLAW, FALL 2002
General Understanding of the Internet
David R. Johnson and David G. Post, Law and Borders B The Rise of Law on the Global Network, 48 Stan. L. Rev. 1367 (1996).
[A little dated, but a good introduction for those who feel they need it. Available ON RESERVE.]
National Security Archive Electronic Briefing Book No. 28, showing the Internet=s power to bring history B sometimes secret history B into your home. Look at the reproductions of the declassified documents; no need to go to the library.
Free Expression
Mainstream Loudoun v. Loudoun County Library, 24 F. Supp. 2d 552; 1998 U.S. Dist. LEXIS 18479; 27 Media L. Rep. 1065 (E.D. Va. 1998) Φ