Internet Law Oral Presentation Assignment

Assignment: For this assignment, students will work in teams of three (3) to present on a case of
significant in Internet Law, focusing on two or three issues implicated by the case. The specific
issues to be covered in your presentation and a reading list of relevant materials is included
below each case. Each case will be presented by three students. Each student has 7-10 minutes
to present. Student 1 presents the plaintiffs case; student 2 presents the defendants case; and
student 3 presents the findings of the court and policy implications. The presentation should
include a short overview of the relevant facts to frame your presentation of the case. You should
present the case clearly and fairly and tailor your presentation to your audience. Following the
students presentations, the instructors will ask follow-up questions and facilitate class discussion.
Scenario: You and your classmates all work together at a boutique Internet law firm. As young
associates, youve formed a study group to help each other understand important Internet law
cases that are important to your firms work and clients. The primary goal of the study group is to
help each other understand both sides of the case, the courts ruling, and the policy implications
for each case.
Grading Criteria: Each student will be graded individually on the basis of their own presentation,
although it will be important to work together to present a coherent discussion of the case. Your
grade will be based on the substance of your presentation and depth of knowledge of the case
(75%) and on the style and coherence of your presentation (25%). Each presentation will be
video-recorded. Part of the assignment will be for you to watch your teams presentation and
provide 2-3 points of positive feedback and 2-3 points of constructive feedback on your own
presentation.
*Sign up for case presentations on the sign-up chart, which will be made available starting
September 2.
**The last day to sign up is September 9.
List of Cases and Issues Presented
1. Speech -- Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), striking down
sections of the Communications Decency Act on First Amendment grounds.
a. Issues:
i.
Did the CDA 230 provisions at issue constitute content-based restrictions
on speech, or content-neutral time, place, and manner restrictions on
speech (as in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41
(1986) and Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976))?
ii.
Did CDA 230 satisfy strict scrutiny--i.e., did the law further a "compelling
governmental interest" and is the law narrowly tailored the law to achieve
that interest?
iii.
What are the public policy interests in regulating potentially harmful
online content and the public policy implications of overbroad injunction
on speech?
b. Reading Materials:
i.
The decision: Reno v. American Civil Liberties Union, 521 U.S. 844
(1997) (appx 35 pages)
ii.
Opening Brief of Appellants., 1997 WL 32931 (Jan. 21, 1997) (appx 36
pages)
iii.
Brief of Appellees ACLU, et al., 1997 WL 74378 (Feb. 20, 1997) (appx
35 pages)
iv.
Brief of Appellees ALA, et. al., 1997 WL 74380 (Feb. 20, 1997.) (appx 44
pages)
v.
Reply Brief of Appellants, 1997 WL 106544 (Mar. 7, 1997) (appx 15
pages)

vi.
vii.

Amicus Brief of Members of Congress, 1997 WL 22918 (Jan. 21, 1997)

(appx 28 pages)
Amicus Brief of Reporters Committee for Freedom of the Press, et al,
1997 WL 74394 (Feb. 20, 1997) (appx 20 pages).

2.
Speech/Encryption -- Bernstein v. DOJ, 176 F.3d 1132 (9th Cir. 1999): software source
code was speech protected by the First Amendment and that the government's regulations
preventing its publication were unconstitutional
a. Issues:
i.
Does computer code constitute speech protected by the First
Amendment?
ii.
Was the export ban a prior restraint on speech?
iii.
Was the ban justified by a compelling government interest?
b. Reading Materials:
i.
The Decision: Bernstein v. DOJ, 176 F.3d 1132 (9th Cir. 1999) (22
pages).
ii.
Brief of Appellants (78 pages):
https://www.eff.org/files/filenode/bernstein/govt_appeal_brief.pdf.
iii.
Brief of Appellee (35 pages):
https://www.eff.org/files/filenode/bernstein_appellees_brief.pdf.
iv.
Government Reply Brief (38 pages):
https://www.eff.org/files/filenode/bernstein/appeal_reply.pdf.
v.
Amicus Brief of EPIC, et. al. (31 pages), available at
https://www.eff.org/files/filenode/bernstein_epic_amicus_brief.pdf.
vi.
Amicus Brief of RSA Data Security, the National Computer Security
Association, et al. (26 pages), available at
https://www.eff.org/files/filenode/bernstein/971110_rsa_ncsa.amicus.html
.
3.
Section 230 -- Barrett v. Rosenthal, 40 Cal.4th 33 (2006), holding that CDA section 230
immunity applies to distributors as well as publishers of third party speech
a. Issues:
i.
Whether the scope of CDA 230 immunity for content created by a third
party extends to an individual user of an interactive computer service
(ICS), and whether it matters if a user is engaged in active or passive
conduct for purposes of the statutory immunity
ii.
Whether a user or provider of an ICS may be held liable as a distributor
of defamatory content under CDA 230
iii.
Whether, upon receiving notice of defamatory content on its services, a
duty arises for the ICS to remove the material, or to monitor its services
for future postings of a similar nature
b. Reading Materials:
i.
The CA Supreme Court decision: Barrett v. Rosenthal, 40 Cal.4th 33
(2006) (22 pages)
ii.
The California appellate court decision: Barrett v. Rosenthal, 9
Cal.Rptr.3d 142 (Jan 21 2004) (23 pages)
iii.
Reply Brief on the Merits of Petitioner Ilena Rosenthal, 2004 WL
2863054 (October 25, 2004) (27 pages)
iv.
Appellants' Reply Brief 2003 WL 22474729 (February 5, 2003) (18
pages)
v.
Amicus Brief of Amazon et al, 2004 WL 3256404 (Dec 6, 2004) (59
pages)

vi.

Amicus Brief of EFF and ACLU, 2004 WL 3256405 (Dec. 6, 2004) (21
pages)

4.
Section 230 -- Fair Housing Council of San Fernando Valley v. Roommate.com, 521
F.3d 1157 (9th Cir. 2008) -- holding that Section 230 immunity did not apply where the website
was designed to force subscribers to divulge protected characteristics and discriminatory
preferences and to match those who had rooms with those who were looking for rooms based on
criteria that appeared to violate fair housing laws.
a.
Issues:
i.
Whether CDA 230 immunity extends to questions posed by Roommates.com
requesting racial preferences
ii.
Whether CDA 230 immunity extends to discriminatory user profiles
generated by pull-down menus created by Roommates.com
iii.
Whether CDA 230 immunity extends to discriminatory statements made in an
open-ended Additional Questions section
b.

Reading Materials:
The 9th Cir. decision: Fair Housing Council of San Fernando Valley v.
Roommate.com, 521 F.3d 1157 (9th Cir. 2008) (33 pages)
ii.
Appellants Opening Brief, 2005 WL 1789885 (April 11, 2005) (33 pages)
iii.
Roommate.com Answering Brief, 2005 WL 2598925 (June 7, 2005) (58
pages) (Ignore the opening brief on costs and fees)
iv.
Brief of Amici Curiae National Fair Housing Alliance, et al., 2010 WL
2751577 (March 22, 2010) (28 Pages)
v.
Brief of Amici curiae Amazon.com et al, 2005 WL 2106305 (June 15, 2005)
(25 pages)
i.

5.
Copyright Exclusive Rights and Fair Use -- Perfect 10, Inc. v. Amazon.com, Inc., 487
F.3d 701 (9th Cir. 2007) -- holding that Internet search engines do not violate exclusive rights by
in-line linking, and that display of thumbnail images is fair use. NOTE: Please ignore the
secondary liability issues in this case for purposes of the presentation.
a.
Issues:
i.
Under the server test, does in-line linking or framing a photographic image
on the internet violate any of the copyright holders exclusive rights,
constituting a direct infringement?
ii.
Does displaying thumbnail images of photographs in a search engine context
constitute fair use?
b.

Reading Materials:
The 9th Cir. decision: Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146
(Dec 2007) (32 pages)
The C.D. Cal. Decision: Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (Feb.
2007) (33 pages)
iv.
Google Brief on Cross Appeal: https://www.eff.org/document/google-briefcross-appeal (87 pages)
v.
Perfect 10s Reply Brief on Cross Appeal:
https://www.eff.org/document/perfect10s-reply-brief-preliminary-injunction (32
pages)
vi.
American Society of Media Photographers Amicus Brief:
https://www.eff.org/document/american-society-media-photographersamicus-brief (37 pages)
vii.
EFFs Amicus Brief: https://www.eff.org/document/effs-amicus-brief-2 (10
pages)
viii.
NetCoalition Amicus Brief: https://www.eff.org/document/netcoaltion-cciacea-et-al-amicus-brief (42 pages)
i.
ii.
iii.

6.
Copyright Secondary Liability -- Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.,
545 U.S. 913 (2005) -- holding peer-to-peer file sharing platform secondarily liable for the
copyright infringement of users
a.
Issues:
i.
Whether secondary liability for acts of copyright infringement by third parties
extend to companies whose Internet-based file sharing services are capable
of both lawful and unlawful uses
ii.
Whether an intermediary can be held liable for inducing copyright
infringement, and what role the defendants intent plays
iii.
In 1984, the Supreme Court rejected contributory liability for Sony because
the Betamax was "capable of substantial noninfringing uses." (Known as the
staple article of commerce test.) How does this doctrine apply to p2p file
sharing? What role, if any, does the proportion of infringing and noninfringing
uses play?
b.

Reading Materials:
Supreme Court decision: Metro-Goldwyn-Mayer Studios, Inc. v. Grokster,
Ltd., 545 U.S. 913 (2005) (33 pages)
ii.
9th Circuit decision: Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.,
380 F.3d 1154 (9th Cir. 2004) (14 pages)
iii.
Brief for Respondents, 2005 WL 508120 (March 1, 2005) (62 pages)
iv.
Brief for Motion Picture Studio and Recording Company Petitioners, 2005 WL
166587 (January 24, 2005) (68 pages)
v.
Brief for Songwriter and Music Publisher Petitioners, 2005 WL 166588
(January 24, 2005) (34 pages)
vi.
Brief of Professors Peter S. Menell, David Nimmer, Robert P. Merges, and
Justin Hughes, as Amici Curiae in Support of Petitioners, 2005 WL 176675
(January 24, 2005) (38 pages)
vii.
Brief Amici Curiae of Computer Science Professors ... Suggesting Affirmance
of the Judgment, 2005 WL 497760 (February 28, 2005) (36 pages)
viii.
Brief of the American Civil Liberties Union, et al in Support of Respondents,
2005 WL 539135 (February 28, 2005) (46 pages)
ix.
Brief of Amici Curiae Internet Law Faculty in Support of Respondents, 2005
WL 508098 (February 28, 2005) (40 pages)
i.

7.
Government Privacy -- Riley v. California, 134 S. Ct. 2473 (2014), holding that police
must obtain a warrant before searching a cell phone.
a.
Issues:
i.
Should the search incident to arrest exception to the Fourth Amendments
warrant requirement include searches of an arrestee's cell phone?
ii.
Do policies furthered by the search incident to arrest exception--protecting
officer safety and preventing destruction of evidence--justify cell phone
searches upon arrest?
iii.
How should advancements of technology play a role in the Courts
application of search incident to arrest doctrine?
b.
i.
ii.
iii.
iv.
v.
vi.
vii.

Reading Materials:
The decision: Riley v. California, 134 S. Ct. 2473 (2014) (26 pages)
Brief for Petitioner, 2014 WL 844599 (Mar. 3, 2014) (38 pages)
Brief for Respondent, 2014 WL 1348466 (Apr. 2, 2014) (37 pages)
Reply Brief of Petitioner Riley, 2014 WL 1616435 (April 22, 2014) (17 pages)
Amicus Brief of ACLU, et al., 2014 WL 950807 (Mar. 7, 2014) (24 pages)
Amicus Brief of CDT and EFF, 2014 WL 950808 (Mar. 10, 2014) (23 pages)
Amicus Brief of the States of Arizona, et al. (Apr. 9, 2014) (14 pages)

viii.

Amicus Brief of Association Of State Criminal Investigative Agencies, et al.,

2014 WL 1410443 (Apr. 9, 2014) (10 pages)

8.
Wiretapping -- United States v. Councilman, 418 F.3d 67 (1st Cir. 2005) (en banc),
holding that even though emails are stored in computer memory during transmission, it is still
criminal for an email provider--or anyone else--to secretly intercept them.
a.
Issues:
i.
Does the term electronic communication include transient electronic
storage intrinsic to the communication process for such communications?
ii.
Is it possible for an e-mail in electronic storage be acquired
contemporaneous with transmission for purposes of the Wiretap Act?
iii.
Did the Stored Communication Acts liability exception for service providers,
codified at 18 U.S.C. 2701(c)(1), exempt the defendant from liability under
the Wiretap Act as well?
b.

Reading Materials:
The en banc decision: United States v. Councilman, 418 F.3d 67 (1st Cir.
2005) (en banc) (25 pages)
ii.
The panel decision: United States v. Councilman, 373 F.3d 197 (1st Cir.),
reh'g en banc granted, opinion withdrawn, 385 F.3d 793 (1st Cir. 2004), and
on reh'g en banc, 418 F.3d 67 (1st Cir. 2005) (19 pages)
iii.
Supplemental Brief of the Defendant-Appellee on Rehearing En Banc, 2004
WL 3201457 (Nov. 4, 2004) (20 pages)
iv.
Supplemental Brief for the United States, 2004 WL 3201458 (Nov. 4, 2004)
(19 pages)
v.
Reply Brief of the Defendant-Appellee on Rehearing En Banc, 2004 WL
3201455 (Dec. 3, 2004) (9 pages)
vi.
Amicus brief of civil rights attorney and law professor ISO rehearing en banc,
2004 WL 3201456 (9 pages)
vii.
Amicus brief of CDT, EFF, EPIC, ALA ISO rehearing en banc, 2004 WL
2058257 (6 pages)
viii.
Supplemental brief of CDT, EFF, EPIC, ALA 2004 WL 3201459 (10 pages)
ix.
Amicus brief of Senator Patrick J. Leahy ISO rehearing, 2004 WL 2707307 (8
pages)
i.