Class 1 Tuesday 8/21/12 1. Introduction a.

. Law of the Horse Easterbrook doesnt think that it should be its own field of study b. Lessig c. Class 2 Thursday 8/23/12 2. Doctrinal Analysis a. eBay vs. Bidders Edge i. Trespass to Chattels requirements 1. Intentional interference with possessory interest a. Is their crawling of the site interference? 2. Proximate damage ii. They are really trying to protect their information through trespass because copyright does not protect it. iii. If damage or only use is shown is really an open question. b. Intel Corp. vs. Hamidi i. Sending of unwanted communications ii. Court concludes that Intel does not get injunction 3. Normative Questions a. Should we require plaintiffs to show harm, or is it enough to say that the plaintiff can say no or dictate how people are allowed to use the system? The Ultimate Question i. Economic arguments (Antitrust) ii. Public Policy iii. Chattels vs Property b. There is a difference between injunctive relief and damages, and injunctive relief requires self-help.

4. Issues of Metaphor/Perspective a. Internal brick and mortar comparisons; actual property b. External a new unique area c. Chattels vs Property d. The issue in a court could be affected by the perspective held by the judge, and it will influence what metaphors are used or applied. i. In eBay, the analogy is more of a real land trespass, whereas Hamidi was about chattels trespass e. The content of the message in Hamidi probably influenced what protection is provided to Intel Class 3 Tuesday 8/28/12 1. Brookfield a. Trademark Law i. Protected by state and federal law ii. In place to promote efficiency and protect consumers iii. Infringement needs 1. To show the mark is protected 2. Mark is confusingly similar (factors on page 55) iv. Initial Interest Confusion also prevents weaker confusion (ie, metatags) b. Brookfield uses the mark Moviebuff, and West Coast has already registered that domain name c. West Coast also used the mark in their metatags d. There is an assumption that metatags are road signs and that search engines will be confused. This leads to consumers being confused, but it is likely untrue e. Doctrinal Issues i. Internal perspective Giving a person a right to a url just because they havea trademark gives them an additional

property right that may be moving trademark law. Over propertization of the websites ii. If you give someone the power to use their trademark to prevent parodies or competition, this could lead to an unwelcome result by blocking new entrants in the market. f. Normative Issues i. How sophisticated a user should the court assume? 2. Mainstream Loudoun a. Local library should block adult computers from being able to access from some things that would be permissible for adults to access but not for minors b. First Amendment Government cant make content based restriction on speech unless it is supported by a compelling state interest and narrowly tailors. i. The court finds that the internet is like an encyclopedia, and adults should be able to access what they want. Restricting the internet is like cutting out the pages in the encyclopedia c. Later on federal statute requires filtering d. Doctrinal Issues e. Normative Issues 3. Platform Metaphor a. 4. Conclusion Class 4 Thursday 8/30/12 1. Who governs cyberlaw? 2. J&P Law and Borders a. Descriptive Claims (describing the universe as they see it) i. It is difficult for geographically based governments to govern how they typically do. ii. Claim Governments cant control what goes on on the internet.

iii. Feasability - It is difficult to get control over people if they do not have any physical control. 1. Enforcement is problematic they can this regulatory evasion iv. Legitimacy 1. Impermissibly extraterritorial 2. Inconsistent regulations The least common denominator problem, where the internet will move towards what will work across the board 3. Enforcement Gap 4. Consent of the governed 5. Notice It would impossible for people to keep up with all of the changes in the laws across the world. a. It also will be difficult for people to have notice when then move into another territory b. Normative Claims (what governments should or should not do based on how they see it) 3. Goldsmiths Response a. Descriptive claims i. Feasability Does not think that there is a regulatory evasion problem because they can use ex post through regulating who or what is a local actor instead of the actual distant actor. 1. You can also regulate the end users and intermediaries online poker sites 2. You could also extradite the person causing the harm 3. He does concede that there is an enforcement gap, but it does not need to be perfect. ii. Legitimacy 1. Spillover effects - The effects principle says that it is permissible for one country to regulate behavior

2. Inconsistent regs - Putative/enforcement scope less inconsistency; geolocation technology mitigate this problem 3. Enforcement 4. Consent of governed If you are taking advantage of transactions in a locality, you are consenting to be governed there 5. Notice - Knowledge that the information is accessible in those areas clears the notice issue b. Normative Claims 4. Posts Rebuttal a. You cant just say law is settled because you think it is. You need to explore if it is actually settled b. Now border crossing is a normal occurrence, and the effects doctrine should be reevaluated for it. Class 5 8/18/12 1. Jurisdiction to Prescribe a. French Yahoo Case i. French public interest groups are suing for violation of French Penal Code that prohibits the public display of Nazi ii. Conforms to Goldsmiths view iii. This type of opinion could lead to the most restrictive rules to rule to world spillover effect 1. If the case went the other way, then it would be seen as the 1st amendment ruling the world. b. Overarching question Who bears the burden of showing geographic location is feasible or not possible c. Is it OK for Courts to push technology in a certain direction? Do they consider how they will affect the market and consumers in the future? d. Dormant Commerce Clause There are limits on how states can regulate commerce even when Congress has not acted (protectionist measures designed to favor one states interests over another;

facially discriminatory or non facially discriminatory and the benefits do not exceed the interstate costs (some judges think this is not valid) or those that demand cohesive national treatment) i. ALA v Pataki 1. NY Law that prohibits communication that is harmful to minors (usually means stuff that is obscene to minors but not adults) 2. Struck down because it could affect any traffic going through New York 3. Analagizes the Internet to a highway 4. More of an internal perspective 5. It was more of a pulling of activity 6. Then included a per se analysis, but this is not the typical case, and Bellia thinks it is wrong 7. Benefit/Burden Analysis Court says that there is very little chance of enforcement outside of New York so the benefit is very limited. (Johnson/Post). Focuses on the burden of non-compliance. ii. Washington v Heckel 1. The benefits (ISPs, address owners, email recipients) outweigh the harm (truthfulness) caused by the law, so it passes the Pike Dormant Commerce Clause Test 2. Analagizes the Internet to receiving a piece of mail; but at the same time how do you really know where the mail is going 3. More of an external perspective 4. It was more of a pushing activity 5. Benefit/Burden Analysis Does not mention difficulty of enforcement, but it should have the same level of difficulty. Only cares about the cost of compliance, disregards the cost of non-compliance. (Goldsmith unexceptionalist view) 6. CDT v Pappert Attempts to target the ISPs to stop Child Porn. ISPs must disable access to the site for Penn

customers if they get notice about the child porn. Struck down on First Amendment and Dormant Commerce Clause, because they would have to take down the site for everyone, not just Penn iii. There is a significant difference between how the two courts looks at the burden of the laws. The burden of complying with ALA could be seen as just not posting material which would reduce the burden and put it more in line with Heckel. Class 6 9/6/12 1. COPA Attempts to limit sexually explicit material to minors a. ACLU v Reno i. The court is concerned that the contemporary community standards will differ across the country, so the law will not be able to be applied equally across the country. This would force the least common denominator restriction ii. The court also has a problem with putting a vast amount of information behind a verification wall. b. Ashcroft v ACLU i. Thomas - SC does not think the new medium does not justify adopting a different approach. Pg 124. Think it should be treated as the same as previous mediums. (Goldsmith unexceptionalist). If you dont like it you should choose a different medium. ii. We dont actually know if there is a large difference between community standards in different states. iii. OConnor Thinks that there should be national regulation iv. Kennedy Should not foreclose the entire medium. 1. Says we cant know in advance if the variation is significant. v. Bellia There is an argument that there could be a vagueness problem, but then this claim would apply to all of the other laws about community standards of obscenity. 2. Jurisdiction to Adjudicate

a. Intl Shoe Test Minimum contacts such that jurisdiction is consistent with fair play and justice b. Purposeful available is also a key question c. Calder v Jones i. Libel case where defendant located in Florida but plaintiff was located and harmed in California, so jurisdiction is proper in California ii. The key problem with this case is that it is about the effects of the harm or the targeting of the harm. d. Young v New Haven Advocate i. Prison Warden sues for libel in Virginia against Connecticut writers ii. The main issue is how this case reconciles with Calder v Jones. iii. Seems to have met the effects test, because the Virginia is being defamed, but the court focuses on the targeting aspects. iv. Court holds Virginia was not targeted. Class 7 Tuesday 9/11/12 1. uBid v Go Daddy a. The fairness and minimum contacts are easy to identify b. The problem is creating a connection between the contacts and the actual claim c. Key question is the court collapsing specific j into general j d. Determines that Go Daddy purposely availed itself of Illinois J with all of their advertising to specifically target the case e. Concurrence Wants to just use the effects test. And really just apply the Calder test. i. It still could really allow Go Daddy to be hauled into court anywhere still. 2. Judgment Recognition a. Yahoo

i. Court says that they cannot enforce the French judgment because it violates the Constitution ii. The court makes a jump between making the initial ruling and enforcing someone elses ruling. They could enforce it anyway, but they decide not to. iii. Is it actually correct to not enforce a judgment that they couldnt make? This happens all the time. b. Citron i. There may be value in a country articulating a particular norm even if they know that it cannot be enforced. Class 8 9/13/12 1. To what extent is private regulation a solution for the regulatory problems involved with the internet? 2. Three running questions in chapter 4 a. What values do private and public regulations serve? i. Private quicker, less subject to geography ii. Public public policy decisions should be made by government b. How do you compare these different types of regulations? c. Are we drawing a meaningful distinction between the two in the first place? i. Private regulations and contracts are backed by public institutions 3. Weiser Centralized Standard-Setting Bodies a. Key point Internet has flourished because of the open standards b. Openness creates a cycle of people wanting to build on the open areas c. It seems like he is advocating some intervention by governments to ensure that open access survives on top of standard setting organizations d. Question What makes a standard setting organization legitimate? 4. Media3 v MAPS

a. Purpose is to explain how companies deal with SPAM and some of the risks for companies 5. Lessig Spam Wars a. Private regulation is bad because of unaccountability concerns b. ISPs could turn into vigilantes that cannot be held accountable for their actions c. Has a big problem with not importing the appropriate values in the decision making process; users having input in process 6. Post Of Black Holes a. Thinks private regulation is better because of efficiency and legitimacy grounds b. Legitimacy Only is able to constrain behavior if others agree with them i. Critic End users do not know what ISPs are doing, and you dont know what the qualifications for the lists are. Also there may not be enough other service providers to get around this problem. c. Efficiency Decentralized systems generate solutions to complex problems that can be found no other way. 7. Regulation by Contract a. ProCD case i. Two issues 1. Valid contract? 2. Pre-emption of copyright law b. Two general issue tracks i. How and when is a contract formed? ii. What about the rights that the firm is creating for itself that may supplant intellectual property laws? Class 9 9/18/12 1. Spect v Netscape

a. Browserwrap agreement contained arbitration clause, but it was below the break, so 2. Radin Article a. Current policies i. Ideas, information, and expired are not copyrightable ii. Fair use b. If contracts ruled, then these rights would not matter anymore c. Key questions: i. If you correct some problems of notice and consent, does it correct the problem she sees? ii. How close are we to this type of imaginary universe? 3. Facebook Controversy a. Maybe there is a possibility that group contracting can change the language 4. Public Regulatory Response a. Constitutional Norms i. Never will happen because of the state action doctrine 1. Entity would need to act like a state 2. Is there a nexus between the entity and govt to justify imposing constitutional restraints b. Legislative Response i. Pruneyard Case 1. Not a Taking to remove the right to exclude leafletters ii. Red Lion Case 1. Radio broadcasting fairness doctrine 2. Limited spectrum requires the government to allow the group of individual users the right to be heard and to hear all of the different viewpoints. Class 10 9/20/12

MISSED Class 11 9/25/12 1. Fiss Why the state? a. There are two forms of the first amendment principle This aspect will carry over into the net neutrality i. Autotonomy ii. Public debate principle 2. Regulation of ISPs a. Frischmann Social Values of Infrastructure b. Open Access i. Under TeleCommunications Act you could treat an ISP in three ways: 1. Telecommunicaions Carriers allows you to impose common carriage requirements 2. Cable Service puts them under some control of local franchising authorities 3. Information Service would not have common carrier or local franchising requirements apply c. Net Neutrality Class 12 9/27/12 1. Domain Name System a. Trademark Law Issues i. Comparison to ICANN UDRP 1. UDRP a. Use register and use b. Scope trademark or service mark c. Showing identical or confusingly similar; bad faith; no legitimate interest d. Remedy forfeiture or transfer of domain name

2. ACPA a. Use Register, traffic, or use b. Scope distinctive or famous c. Showing bad faith intent to profit; identical/confusingly similar to distinctive; dilutive of famous mark d. Remedy ii. Procedural Problems with UDRP 1. Compressed time frame is biased in favor of the trademark holders, because they get to pick the company that handles the dispute, the process is in their favor, and the rapid proceeding only really allows 10 days to get the domain name back while putting the burden of proof on the domain name holder. Class 13 DID NOT ATTEND 1. What is the relationship between technology and law a. Scalia i. Kyllo focuses on information coming from a constitutionally protected area ii. Jones stakes the holding of the case on a physical intrusion on the object (trespass) 2. Different view of how the 4th amendment is in play a. Olmsted Court says that a telephone is projecting your voice into the world, and it is not a 4th amendment problem i. Lets technology diminish privacy ii. Brandies role of 4th amendment is to adapt to new technology b. Katz 4th amendment is a force to prevent privacy from shrinking by technology 3. Objective component of Katz test Class 14 10/4/12 1. Warshak Case

a. Govt asks ISP to hold on to emails for awhile before getting a court order to get them b. Court rejects key arguments i. ISPs right of access to the information they give themselves the right to access through contract ii. The ISP had technological ability to access 2. Contributory Infringement a. Allow the product unless i. Unsuited for ANY non-infringing use (patent law) - capability ii. Incapable of SUBSTANTIAL non-infringing use (Sony case, copyright) - capability iii. Virtually all use is to infringe (dissent Sony) - use iv. Not widely used for legitimate purposes (dissent Sony) use b. Top down goes from favoring the manufacturer to favoring the copyright holder 3. DMCA much closer to dissent in Sony than holding Class 15 10/9/12 1. DMCA a. Anticircumvention Provisions (Section 1201a) cant bypass - only prevents circumvention for access controls, not to copy controls i. In theory once you have legal access you cant get in trouble for copying it ii. Probably because you need some ability for fair use b. Anti-traffic Provisions (1201b) i. Cant traffic in 1. Made for purpose of circumventing access control 2. Limited commercial significant purpose beyond trafficking copy controls 3. Marketed for trafficking

2. Streambox Case a. Two measures are at issue i. Circumvention of the secret handshake (access control) ii. Circumvention of copy switch (copy control) b. Court finds streambox liable for antitraffic provisions for both access and copy controls c. Court finds this case different than Sony, because Sony didnt have to deal with the DMCA, and the DMCA creates broaden liability i. Also they look at the design and actual use, not the capabilities so it is much closer to the dissent in Sony and not the decision 3. Napster case a. Court rejects all fair use arguments b. Court only looks at actual use c. System is set up with a central server, so Napster had knowledge; Sony didnt have knowledge of specific acts of infringement d. Contributory Infringement i. Knowledge 1. Actual 2. constructive ii. Material contribution e. Vicarious Liability i. Financial benefit ii. Ability to control 4. Grokster Case a. No central server, but there are some super nodes b. It is hard to show how Grokster will be able to have control over the file exchanges c. Inducement theory allows for liability even with substantial noninfringing use

Class 10/23/12 1. Problems of Intermediaries a. Identity and Anonymity Class 10/25/12 2. Intermediary Liability for Online Conduct a. Bushey drunk sailor dry dock case i. Purpose is to determine what is needed to put liability on the employer. ii. Gives three rationales: 1. Allocation of resources 2. Loss spreading 3. Fairness Class 11/20/12 1.