INTERNET LAW OUTLINE – GRIMMELMANN – SPRING 2011 I.

Introduction Internet law – “the law of the horse” – there is no internet law, it is just the intersection of a bunch of different areas of law interacting on the internet - some specific laws to internet – Communications Decency Act, DMCA – don’t always work the same as they do in the physical world 4 themes of the course: 1. Computers vs. people as regulators 2. Is the net anarchy? Or totalitarianism? 3. Intermediary Powers 4. Innovation Chapter 1: Computers and the Internet – what happens when a machine replaces a person Lessig, The Law of the Horse: What Cyberlaw Might Teach 113 Harv. L. Rev. 501 (1999) Cyberspace changes things – IE age verification – easy in person, impossible on internet 4 means of regulating behavior: 1. Law – threat of punishment if people do not obey 2. Social Norms – enforced ex facto by a community rather than govt, but still constrains behavior based on the threat of punishment 3. Market price – cost of something effects its use and desirability – builds on top of laws/social norms 4. Architecture – physical design that restricts or modifies the way people interact “Code is law” – code is the architecture of cyberspace These 4 modes of regulation work together, and the impact of the four effects = net regulation Kennison v. Daire – Austraila High court 1986- withdrew 200 from ATM he did not have – larceny - ATM dispensing the cash is not the same as consenting to a taking – machine cannot give consent - court distinguishes that Kennison’s account was closed – maybe different result for insufficient $ Pompeii Estates v. Con Ed of NY – NY civil court 1977 – con ed cut power to development property - bills were sent to the unoccupied property instead of builder; cut power; pipes froze Mailing bill constitutes proper notice, but statute requires con ed act reasonably

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- builder in constant contact with con ed rep – never mentioned bills, never checked customer file before cutting power. Reasonable person would have done so, and dmg from frozen pipes is forseeable. Con Ed had a duty of care to not blindly rely on the computer before cutting power - Computers can only issue mandatory instructions – they are not programmed to exercise discretion - cannot use the computer as a shield to avoid an obligation to exercise reasonable care THE INTERNET Client is the computer asking for information – server is the host providing it Routing – links server and clients through a series of computer – networking IP address – tells you where the particular information you are seeking is located TCP – Transmission Control Protocol – compliments IP (internet protocol) reliable transmission combats packet loss Layering – makes computer easy to use – hide technical details from user (dumb it down) Internet is dumb – applications are smart Chapter 2: Jurisdiction Jurisdiction in Cyberspace – what changes when we go online? Competing theory – govt can regulate internet? Or internet is a new place, where govt cannot reach Barlow, A Declaration of the Independence of Cyberspace – 2/8/96 - “weary giants of flesh and steel” go away – govts have no sovereignty on the internet Response to the Telecommunications Reform Act – end to all the fun shit you used to do on the net Kerr, The Problem of Perspective in Internet Law 91 Geo. L.J. 357 (2003) 2 versions of internet – virtual (pictures, content, speech) and physical (routers, wires, servers) External perspective – internet as physical objects – computer, hardware, wires in a worldwide network Internal perspective – virtual world created on the screen when one uses the internet Two sets of facts apply to every internet act – one internal, one external – applying the same law to these two sets of facts (that describe the same event) can produce very different results Johnson & Post, The Rise of Law in Cyberspace 48 Stan. L. Rev. 1367 (1996) Territorial borders – power through physical control, effects are limited spacially, governing bodies have legitimacy, and there is notice of where the laws begin and end Cyberspace – no territorial borders – muddies the water Power is hard or impossible – cannot enforce 2

Effects are global and far-reaching – data travels at the speed of light Legitimacy/Notice – no physical borders, nor is the internet the province of any single govt Advocates treating the entire internet as a single new place, distinct from the physical world Voyeur Dorm LC v. City of Tampa – Fl. DC 2000 – live porn feed but net only – violates zoning ordinance? P says premise not open to the public – available on internet only Court says no – adult entertainment is offered on the premises, even though transmitted on internet Voyeur Dorm v. Tampa II – 11th Cir 2001 – overturns district court – svcs not offered to the public The adult entertainment is not offered at the voyeur dorm house, it is offered on the internet “the public offering occurs over the internet in ‘virtual space’” JG – basic lawyer instinct should take over – this is not the purpose of the zoning law, shouldn’t apply “If men define situations as real, they are real in their consequences” Laws on a Global Internet Courts have not adopted the internet as “somewhere else” – geography becomes an issue Grimmelmann’s sample rules to consider: - The law of the place where the server is located applies, and plaintiff sues there - the law of plaintiff’s home jurisdiction applies, and plaintiff can sue there - the plaintiff can sue in any court with jurisdiction over d, and court’s local law applies Dow Jones v. Gutnick – Australia 2002 – WSJ defames Gutnick – Gutnick is from OZ, WSJ in NJ Where was story published? NJ or Australia? Court says defamation happens where the person being defamed lived and has reputation that is damaged – in this case austrialia – place of the harm “it is where the person downloads the material that the damage to reputation may be done” Ubiquity of the harm is troubling in this case, as is the difference between US and AUS law - also note Australia wants to find jurisdiction to protect its citizens and not cede control of the intenet to the US - does this mean a publisher has to consider and comply with every law on the planet? Kirby: impossible to locate a user seeking to access a website, impossible to exclude jurisdictions Calinan: no American legal hegemony in relation to internet publications (fuck your 1st amendment) Mahfouz v. Ehrenfeld – UK 2005 – P says D funds terrorism – libel in UK, not in US 23 copies of book sold in UK, also available online – P gets a default judgment/injunction in UK 3

D’s get injunction and default judgment of 30K – no link between book and UK so whats up? Libel Tourism – UK courts have favorable liable laws, so its an easy forum for a plaintiff to win Conflict between international legal standards – remedy is the fun new twist Ehrenfield sued in SDNY to declare judgment unenforceable and won Securing the Protection of Our Enduring and Established Constitutional Heritage (SPEECH) act Pub. L. 111-223, 124 Stat. 2480 (Aug 10, 2010), to be codified at 28 U.S.C. §4101 et seq. - no judgments for defamation in foreign courts will be recognized or enforced unless: A) foreign court’s defamation law provides same protections as 1st amendment B) or if the party opposing recognition would’ve been guilty under US law - jurisdiction – foreign court must have jurisdiction over perp under due process/constitution Does this statute help the problem or cause more problems? Does the internet give the government more or less power? ONLINE BORDERS Attempts to implement social policy through modifying computer code Goldsmith and Wu, Digital Borders, Legal Affairs (January 2006) Yahoo auctions nazi memorabilia – France is PISSED – they have a law about trafficking nazi goods Judge tells yahoo to filter out the French, Yahoo laughs derisively – that’s fuckin impossible man Since then, companies have found ways to locate users geographically so they can target ads Yahoo’s Swedish mirror site proved their end – they had ability to target and screen users Court says Yahoo must make reasonable efforts to filter. YAHOO had French assets that could be seized, so they actually had to listen to this nonsense – yahoo caved and pulled Nazi auctions entirely JG – note the target here is not the actor, but the intermediary Localization of the internet is the point – cannot get content providers, so get the ppl physically present “Government regulation works by cost and bother, not by hermetic seal” Ctr for Democracy and Technology v. Pappert – PA 2004 – child porn filters for ISPs/DNS filtering Act allows DA to order an ISP to remove or disable items that constitute child porn without notice 3 methods for ISPs to accomplish this, used alone or in tandem DNS filtering – prevent your DNS servers from resolving IP address or giving fake address/error 4

and 3. Hansing 9th cir 2008 – eBay item sale constitute minimum contacts? 1964 ford Galaxie 5 . changing IP addresses etc – easy ways around these measures Impossible to confine the effects of filtering to only Pennsylvania Dormant Commerce Clause violation – burden imposed in Interstate Commerce clearly excessive in relation to the local benefit of filtering child porn in PA Effect of act is exporting PA’s domestic policies – extraterritorial effect is unconstitutional Court reserves judgment on whether a state can regulate the internet Personal Jurisdiction International Shoe – “minimum contacts” test for jurisdiction – how’s that work on the interwebs? Young v. but articles were posted on the internet “specific jurisdiction in the Internet context may be based only on an out-of-state persons’s internet activity directed at the forum state and causing injury that gives rise to a potential claim cognizable in that state” Here – no proof D’s activities were expressly targeted at or directed toward the forum state State has judicial power over a person outside the state when that person: (ALS Scan test) 1. not VA Note: effects test (based on effects in state rather than intent) are much broader/easier to establish Boschetto v. 2. in a person within the State. Directs electronic activity into the State. New Haven Advocate (4th cir. With the manifested intent of engaging in business or other interactions within the State.IP filtering – stops outgoing requests for a specific IP address URL filtering – block or discard request for a URL that is listed on their no-fly list Filtering burdens network operation – slows everything down. all sub-pages in that domain are blocked (Geocities) Ineffective – proxy servers. expensive and burdensome Overblocking – if domain name blocked. Court examines content of website/articles and finds they are targeted at CT. no jurisdiction here Warden of prison – sues for libel over articles in Hartford Courant/New Haven Advocate in WVA 8 subscribers in Virginia between them.have PJ? Std: Did defendant manifest an intent to aim their websites at a Virginia audience? . a potential cause of action cognizable in the State’s courts Something more than posting and accessibility is needed to show the newspapers purposely directed their ativity in a substantial way to the forum state of Virginia. Must manifest an intent to target and focus on Virginia readers. 2002) – CT newspapers on VA prisons via internet.court says they did not. that activity creates.

sued in CA – jurisdiction? Contract formation with a nonresident alone is not sufficient to create jurisdiction Broader use of internet as a platform for commercial activity might be enough – but not present here One time transaction with a state by a nonresident over the internet does not establish personal jurisdiction Zippo test for sliding scale of interactivity – the more interactive the website. blackmail and assault without consideration of First Amendment Issues” – Watts Baker – made threats on a usenet group. Baker – ED Mich 1995 – kidnap/rape fantasies about classmates 18 USC 875 (c) – Whoever transmits into interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another. or both. so kind of useless Note: Computer location does not matter. rarely followed . The threat must be a threat to injure or kidnap the person of another True threat = unequivocal. immediate and specific to the person threatened as to convey a gravity of purpose and imminent prospect of execution” – from Kelner “only those threats which are properly punished every day under statutes prohibiting extortion. car was a piece of shit. also via email – charges stem only from the emails Musings/considerations/desires are not enough – need expression of intent don’t need a specific target. interactivity would speak to eBays jurisdiction not the sellers. which is a convergence of several different types of media – words/videos/music etc US v.Plaintiff in CA bought car from D in WI. A communication containing a threat. 3 elements to prove: 1. but pure effects test also rear their head Interactivity tests sometimes used for websites Forum selection clauses are usually held to be valid CHAPTER 3: SPEECH Tort law – treats speech differently based on the type of media – this does not work on the internet. shall be fined under this title or imprisoned not more than five years.here. unconditional. except when it does ALS test dominates. A transmission in interstate commerce 2. the more appropriate personal jurisdiction becomes – JG notes – often cited. and 3. only sufficiently specific to render statement more than hypothetical 6 .

because he is the only one who received them – they are private emails Prosecution fails – target is specific enough – female students in his dorm But no express intent to act – just discussing the commission of a crime 2nd email – no target. Free Speech Coalition – SC 2002 – CPPA violates 1st? what if CGA? CPPA (18 USC 2251 et seq) prohibits child pornography that appears to depict minors even if produced without real children Ferber – old child porn case – doesn’t need to be obscene if child porn – to protect children from the production process – but CPPA enforced even without children involved in production Court says no CPPA prohibits speech that records no crime and creates no victims.Question is how a reasonable person would expect Gonda (email recipient) to interpret these messages. no express intent not publicly posted – no violation of 18 usc 875(c) but there are repercussions. as now everyone knows what a psycho Baker is Ashcroft v. even if it would not be obscene to adults – think George Carlin/ Janet Jacksons boobie govt cannot ban this material outright or prevent adults from obtaining it. but THINK OF THE CHILDREN internet porn becomes a big problem in the mid 90’s Child Decency Act – internet regulatory compromise 7 . Appeals to the prurient interest according to contemporary community standards 1. no causaul link between images and child abuse Govt responds w/ new statute – “pandering and solicitation” – anything intended to represent real child porn – this statute is upheld PORNOGRAPHY Porno – protected by first amendment – strict scrutiny applies Compelling governmental interest + narrowly tailored + no less restrictive alternative Obscenity is not protected by the 1st amendment – to find obscenity we use the Miller test 1. possession is a crime can prevent children from seeing porn that is harmful to minors. no redeeming literary/artistic/educational/social value Can also ban child porn – not protected. according to contemporary community standards of decency 3. Depicts/describes sexual conduct defined by applicable state law in a patently offensive way.

. no distinction for commercial/noncommercial “specific person” requirement does not work for the internet because it is viewable to everyone “effective” steps affirmative defense is illusory – there is no effective method to screen Age verification is not economically feasible and there’s no way to prevent minors from posing as adults “The CDA. and given ability to filter . ACLU 1997 .2 provisions of the CDA held unconstitutional – violate 1st amendment CDA – fails strict scrutiny – less restrictive alternatives are available “the level of discourse reaching the mailbox simple cannot be limited to that which would be suitable for a sandbox.immunity for ISPs for user transmissions.criminalizes transmitting obscene or indecent material to minors . casting a far darker shadow over free speech. Kennedy says disabling saves this statute – but library “may” disable. no tolerance for parental choice. threatens to torch a large segment of the internet community” JG says – 1st and last time anyone can speak of “the” internet community – last time united COPA – revised statute in response to this case – tighter language – filtering software CIPA – libraries w/ federal funding need filtering – spending clause says this is Constitutional J. does not have to COPA – question remains – WHOSE community standards? Local? National? US v Kilbride – 9th Cir 2009 – porn spam emails – challenge jury instruction on Obscenity “contemporary community standards” – read the definition from Miller – draw from the community or vicinage where the juror comes from – but this is the internet – heckler’s veto problem 8 .crime limited to “knowing” transmissions.” Knowledge requirement – untenable – no viable age verification process No effective method to prevent minors from obtaining access to communications on the internet without also denying access to adults Burden of age verification on non-commercial sites will curtail a significant amount of speech CDA – not limited to commercial speech/entities No exception for material with serious educational or other value “community standards” means anything available to a nationwide audience will be judged by the standards of the community most likely to be offended – the Heckler’s Veto CDA is not narrowly tailored – did not even consider alternatives. and unite against the govt in a geek rebellion Reno v. and affirmative defense of taking steps to restrict access or attempting age verification The interwebs are PISSED about this govt meddling.

email sender does not know geographic location of recipient – so must abide by the standards of the least tolerant community in the country Court says – should have used National standard. its almost the same thing as a trade secret Seizures – arrest/involuntary restriction of your liberty or meaningful interference with your possessory interest in your property US v. seizes PDA and access it with P/W No reasonable expectation of privacy when David entered password – not a search 9 . then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities” JOC – says less chance of a first amendment problem with a national standard. The Fourth Amendment – criminal procedure and the interwebs 4th amendment – no unreasonable searches/seizures – need a warrant or probable cause BUT – unless govt violates your “reasonable expectation of privacy” no “search” has taken place . but failure to do so does not amount to plain error Thomas – “If a publisher wishes for its material to be judged only by the standards of particular communities. they can seize any incriminating evidence that is “immediately apparent” Exigent circumstances – can seize without a warrant if you are obviously going to destroy the evidence General principle – you have to try and keep something private in order to have an expectation of privacy. “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds” So court says National community standard applies to internet CHAPTER 4: PRIVACY A. David 1991 D. accuses him of deleting stuff. but does not have a problem with the local standard as applied in this case Breyer – cannot give puritan communities a “heckler’s internet veto” affecting the rest of the Nation.no reasonable expectation of privacy in anything you have voluntarily exposed to public view Also note 2 exceptions: Consent – if you consent to the search. particularly given the problems in trying to limit the internet geographically “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices. police don’t need a warrant because you consented Plain View – if police are searching for something else. Nev – importing heroine – cop stole the PDA password – violates 4th? David cooperating – giving them info out of his PDA – but did not give password or show them PDA Agent watches him type password.

v.used fabricated survey in advertisements to show the product worked .but did not disclose autoship and never got authorization – so added disclosure but hid it in legalese Also automatically enrolled people in auto-ship program even if they declined it – love this guy .Peterson’s grabbing the book was not a seizure because it didn’t “meaningfully interfere” with David’s possessory interest – this is a little ridiculous. even if there is an assumption of secrecy But the bank in Miller was the intended recipient of the information.also had auto-ship – order free trial and they automatically send more until you cancel. that might defeat the expectation of privacy. so fuck him – suppress the contents US. SCA is unconstitutional to the extent that it permits the govt to obtain emails without a warrant 10 . but it comes from chattel property law – old school shit 2nd. Was that expectation reasonable? Court says Warshak plainly manifested an expectation of privacy. Did Warshak manifest a subjective expectation of privacy? 2. Warshak – 6th Circuit 2010 – Enzyte – smilin’ bob is a con artist with a tiny penis . inspect or monitor” subscriber emails. here the ISP is just the carrier Govt may not compel a commercial ISP to turn over the contents of a subscirber’s emails without first obtaining a warrant based on probable cause. but that is not the situation here 3rd party doctrine? Distinguish Miller – 4th amendment does not prohibit obtaining info revealed to a third party and conveyed by him to govt authorities. despite the subscriber agreement between Warshak and the ISP “The threat or possibility of access is not decisive when it comes to the reasonableness of an expectation of privacy” If ISP expresses intent to “audit. didn’t. based on the content of the emails Court says there is a reasonable expectation of privacy in emails. longer seizure was also ok because of “exigent circumstances” – fear David would delete stuff But – Peterson accessing book after that seizure without a warrant was an illegal search David’s privacy interest in the contents of the PDA require a warrant or consent Peterson had plenty of time to get one.emails disclosed the details of the scam – govt obtained from his ISP – constitutional? Warshak says the seizure of his emails violate the 4th amendment – Govt says Stored Communications Act (SCA 17 USC 2701) allows them to get emails without warrant SCA – “permits a govt entity to compel a service provider to disclose the contents of electronic communications in some circumstances” 2 questions for 4th amendment – 1.

compliance with these terms doesn’t solve this case b/c that’s a lower standard than probable cause WIRETAPPING – two federal statutes that we care about Stored Communications Act (SCA) – 17 USC 2701-2712 Wiretap Act – 18 USC 2510-2522 2 roles of these statutes: 1. sounds. data. images. or other device” Contents – “any information concerning the substance. or meaning of that communication Electronic communication – any transfer of signs. Contents of 4. Protect individuals from having their private communications seen by other private parties 2. Intercepts/tries to intercept 3. photoelectronic or potooptical system that affects interstate or foreign commerce. but does not include A) any wire or oral communications b) any communication made through a tone-only paging device c) any communication from a tracking device. Wire/oral/electronic communication Note: all these terms are defined in the statute (except intentionally) Intercept – “aural or other acquisition of the contents of any wire. are relevant and material to an ongoing criminal investigation” . or the records or other information sought. regulate the process by which the govt acquires private communications during investigations THE WIRETAP ACT – this deals with intercepting communications while in transit 4 elements to violate: 1. or intelligence of any nature transmitted in whole or in part by a wire. radio. electromagnetic. mechanical. Intentionally 2.JG – SCA requires “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication. electronic or oral communication through the use of any electronic. signals. or d) electronic funds transfer information stored by a financial institution in a communications used for the electronic storage and transfer of funds Also note there are a number of exceptions: 2511 (2)(a)(i) – provider in the normal course of business in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service . writing.EXCEPT: no observing/random monitoring except for mechanical/service quality control 2511 (2) (c) – cop can intercept if a party to communication or with consent of one party 2511 (2) (d) – non-cop can intercept if a party to communication or with consent of one party 11 . purport.

. or are too dangerous to attempt d) probable cause to belief facilities where interception will happen are about to be used in connection with the offense. or appear unlikely to succeed. or are leased to/commonly used by such person NOTE: states also have wiretap laws that parallel or interact with the federal statute O’Brein v.std is higher than a search warrant – but don’t need to disclose until after the fact STORED COMMUNICATIONS ACT – 18 USC 2701 .husband discovers.UNLESS interception is for the purpose of committing a tort/crime 2511 (2) (g) (i) – intercept communication on a system that is readily accessible to general public NOTE: this is the basic exclusion and exceptions – there’s special rules for cops to get authorization 2518 – procedures for interception (1) – written application to judge including a statement of applicant’s authority to intercept (3) – judge can enter an ex parte order approving interceptions if judge finds that: a) probable cause individual committed/committing/will commit enumerated offense b) probable cause communications about that offense will be intercepted c) normal investigation procedures tried and failed. cops want surveillance without a “superwarrant” . communication is no longer in transit and cannot be intercepted Court disagrees – the “evanescent” time between display and capture is not enough to constitute retrieval.wife installs spyware on husbands computer. not copying stored files after the fact JG – civil litigants drive interpretation because govt is torn about the breadth of the statute . recorded screenshots that captured communications . this is an interception – its screen grabs.AUSA wants wiretaps. so court looks to fed court for guidance Intercept – must be acquired contemporaneously with transmission.“thick – identity as well as content” 2701 (a) – whoever: 12 . gets injunction for communications – but were they “intercepted”? State statute – defines “intercept” same as Wiretapt Act. O’Brein – FL district court 2005 – Florida statute on illegal interceptions . which copies communication as it is transmitted and routes the copy to a storage file Wife argues that once text is visible on screen. not retrieved from storage Distinguish between a program similar to Steiger which breaks into a computer and retrieves information already stored on the hard drive and the one installed by the Wife in this case.

(1) – intentionally accesses without authorization a facility of an ISP.6th circuit struck this down as unconstitutional in Warshak 2703(1)(b) – must give notice – but notice can be delayed and routinely is delayed .§2703 Less than 180 days in storage – need a warrant Over 180 days in storage – need a warrant OR a court order 2703 (d) .Court order standard – specific articulable facts showing reasonable grounds to believe that contents/records are relevant and material to an ongoing criminal investigation . and generally try for both Wiretap standard = superwarrant – warrant PLUS additional safeguards SCA – after 180 days.only government can compel disclosure – private parties cannot compel disclosure Both SCA and Wiretap Act prohibit disclosure generally and give govt power to override . not content Anonymity is impossible face to face – need an intermediary (like an ISP) – but that also means the intermediary can reveal your identity – but when are they allowed? 13 . or (2) – intentionally exceeds an authorization to access that facility.rough line between interception and storage – DON’T COUNT ON IT . lower standard than a warrant – unconstitutional (at least in 6th circuit) Bernstein v.always check for both. US – publish cryptography research on the internet? Export under Zipper problem? Court says no – code is speech – JG asks of govt can regulate code? OF COURSE THEY CAN Electronic Communications Privacy Act is the act we have been dealing with Title I – Wiretap Act Title II – Stored Communications Act Title III – deals with devices that log your incoming/outgoing calls ANONYMITY – we’re talking about identity now. And obtains/alters/ or prevents access to a wire or electronic communication while it is in electronic storage shall be punished as provided in section (b) 2702 – service provider cannot disclose (a) (1) – contents of communications in storage (a) (3) – records/other information pertaining to a subscriber/customer to govt entity Stored Communications Act allows for Compelled Disclosure to govt .

JG – this factor is geared more toward witnesses/nonparties than anonymous defendants 4. P can be ordered to return info and be prohibited from using it (but what good is this) D moves to quash subpoena – infringes his 1st amendment right to anonymous speech 1st – protects anonymous speech and internet speech. D moves to quash. AT&T alerts user to subpoena. thus the lawsuit) 2. – autoadmit defamation/harassment Plaintiffs were harassed on autoadmit – 200 threads over 2 years – multiple tort allegations File suit. move to discover identity. Conn. judge grants.requirements for order (called a “d order”) in 2703 (d) .here – yes. which ignored svc agreement) 14 . P serves AT&T.Tracking down a hacker is damn near impossible through technical means. specific statements/data. Subpoenaed party’s expectation of privacy at time of posting? . avoid litigation Doe I & Doe II v. no other way of getting identity of poster 3. gets pro bono counsel Motion to quash – P says this is moot because AT&T already complied – court says no.Has P identified & set forth exact statements made by anonymous poster that constitute actionable speech? Identified specific information they want? Adequate other means of obtaining info? . but does not extend to unprotected speech Balancing test – weigh D’s rights under 1st against P’s need for discovery Factors: 1. Individuals unknown – 2008 D. international ISPs are not always cooperative. AT&T complies w/ subpoena. data retention policies are varied and unreliable 2702 (a) (3) – prevents ISP from voluntary disclosing identity to govt 2703 (c) – allows govt to COMPEL disclosure (JG: worst drafted statute ever) .here no expectation – AT&T privacy policy (distinguish Warshak. Central Need for this info to advance plaintiff’s claims? obviously . Specificity . Notice: Did P undertake efforts to notify posters of submission and allow a reasonable opportunity to file and serve opposition to the application? (here obviously yes.need a warrant. subpoena or court order – DON’T NEED TO GIVE NOTICE . D moves to proceed anonymously.NOTE – provider can motion to quash/modify court order on showing that the records requested are unusually voluminous in nature or compliance would cause an undue burden on ISP JG – statute is not particularly well adapted to modern technology JG – ISP policy is basically “keep us out of it” – will do whatever court says.

User requests website 2. POST. move for discovery permission. then P drops lawsuit – lawsuit as pretext for disclosure? Defendant tries to sue google for disclosing – can’t do it – nobody guarantees privacy JG paper – maybe unmasking is the best remedy there is DISCLOSURE SUMMARY ISPs can voluntarily disclose your identity to private parties legally – but most will not do it ISPs can NOT voluntarily disclose your identity to the government ISPs can be compelled to disclose identity to the govt (subpoena/d-order) or private (civil subpoena) CONSUMER PRIVACY – website privacy – what can they do with your information? In Re: DoubleClick Inc. then serve Skanks of NYC – subpoena compels disclosure.some are deferential – P’s “good faith basis” or probable cause against defendant . only these 3 types of data. user automatically sends cookie to doubleclick to identify user 4. get judge to grant.some are not – must show claims can survive motion to dismiss / summary judgment Court rejects all – says std = “concrete showing as to each element of a prima facie case” This std ensures plaintiff “is not merely seeking to harass or embarrass the speaker or stifle legitimate criticism” and gives basis for belief that D’s conduct is not protected by 1st amendment JG practice notes – CAREFUL NOT TO VIOLATE JUDGES RULES ABOUT SUBPOENAS .best practice – file suit.most judges want a discovery meeting first . and GIF submissions GET – query strings (search terms) grabs anything after the ? in the URL POST – fill-in forms – name/address/phone # etc – (passwords and CC#’s?) GIF – tags on affiliates’ sites – track users browsing activity Limits – only affiliated websites. – SDNY 2001 – class action under ECPA – wiretap and SCA DoubleClick – online ads – compiles user info to provide demographically targeted advertising Uses cookies to track personal info of users – 4 step process 1. Website responds with page that includes links to doubleclick 3. opt-out provision 15 .5. Adequate showing of legal claims? (JG – this is hardest prong) courts differ on standards: . doubleclick sends targeted ads based on information stored in cookie Cookie records GET.

configure browserto block any cookies from being deposited SCA CLAIM – P says doubleclick placing cookie on user hard drive amounts to unauthorized access under 2701(a) – doubleclick says it falls under 2701(c) exception 3 part issue: 1.loss of $ value of their data is not cognizable claim – no expectation of compensation Question becomes. – EDNY 2005 – class action – shared data for military security study P wants damages. Torts and criminal law all play a role in the manner owners/operators set the terms and conditions for user access.are privacy policies enforceable? Do they have any value? CHAPTER 5 – ACCESS Contracts. goto Doubleclick site and get an “opt-out” cookie. ISP is the service provider 2. Did those websites give doubleclick authorization? Court says implausible to infer no authorization based on relationship with affiliates Authorization is sufficient – GET/POST/GIF submissions are all intended for affiliate sites Cookie ID numbers are not electronic communications. JG edited out part about the “purpose” but I assume there’s some sort of circular logic where they don’t violate the ECPA so no purpose In Re: JetBlue Airways Corp. What is the relevant “electronic communications service” . but if they are they are intended for doubleclick.Yes – entity that uses internet access with authorization from ISP NOTE – court finds this as a matter of LAW – websites are users under ECPA 3. not plaintiff – court says analogous to a bar code on a business reply mail card Wiretap Act Claim: doubleclick agrees their conduct fits 2511 (a) but claim exception under 2511(2)(d) because affiliate websites have consented to their interception Plaintiffs say exception does not apply – purpose to commit criminal/tortious acts Court says websites are still parties under Wiretap. The result is “not always logical or consistent” 16 .2 methods to opt out – 1. Are affiliate websites “users” under the service in (1)? . or 2. injunctive relief and declaratory judgment – D makes 12(b)6 motion – no claim JetBlue – privacy policy says personal/financial info would not be shared with 3rd parties JetBlue shares data with DOD at request of TSA in violation of privacy policy – lawsuit follows Breach of K – court finds reliance but no damages – loss of privacy is not a contract damage .Internet Access is the service.

Zeidenberg – 7th Cir 1996 – telephone directory – use contract where copyright fails? Telephone directory database – sold with “shrinkwrap license” – Zeidenberg ignores. Linden Research – ED PA 2007 – second life dispute – TOS compels arbitration Linden froze P’s account and confiscated his property – P sues – D wants to compel arbitration FAA applies – to compel arbitration must show: 1. re-sells data License is in the box – cannot read before purchase. Terms on the inside 3. and 2. Netscape Communications – 2nd cir 2002 – SmartDownload – “clickwrap” – arbitrate? ECPA suit – Netscape wants to enforce arbitration clause – but clause was in a “clickwrap” license that did not require assent and was not visible on the screen when Ps downloaded software Arbitration – binding arbitration in California – losing party pays all costs Court says unenforceable – no reasonable notice/manifest intent – offer did not carry an immediately visible notice of the existence of license terms or require unambiguous manifestation of assent JG – freeware at issue here. A right to return software if the terms are unacceptable JG – don’t say he “accepted” – say he saw the terms and continued using the software Black letter is simple – but contract makes it tricky Use as acceptance? Depends – on notice? Use = benefit = consideration But sometimes act of acceptance is unreasonable – shoelaces example But shoelaces is like negative consideration – cannot now do something you were otherwise allowed to ProCD – using a contract to copyright something that is otherwise uncopyrightable? Specht v. so not as conscious about license because not commercial Browsewrap – theory is browsing site with link to terms = assent to terms (clearly not here) JG – hierarchy of terms – some terms are more reasonable than others “reasonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility” Bragg v. v. a valid agreement to arbitrate exists between the parties. but how else can you provide license? 3 part test: 1. Notice on the outside 2.Contracts ProCD Inc. the specific dispute falls within the scope of the agreement 17 .

purpose. generally: Prohibits “Intentional” “Access” to a computer “without authorization” that causes certain harms 18 . and effect of K Contract is procedurally unconscionable if it is a contract of adhesion – take it or leave it Here – can either assent to the TOS or be denied access to SecondLife. D has superior bargaining position. reserves right to hold property indefinitely on suspicion of fraud. D determines whether agreement is breached. cost of arbitration. or (2) surprise through hidden terms common in the context of adhesion Ks Substantive – show overly harsh or one-sided results that “shock the conscience” Sliding scale – the more significant one is. the less significant the other need be . D had no meaningful opportunity to negotiate the terms – procedurally unconscionable Substantive Unconscionability – focus on one-sidedness of contract terms Here: D has unilateral right to suspend/terminate account.All inferences drawn in favor of the party opposing arbitration – Bragg says unconscionable CA law applies – must show both procedural and substantive unconscionability Procedural – show (1) oppression through the existence of unequal bargaining provisions.always make people engage in an affirmative. refuse current/future service without notice or liability.no mutuality – so substantially unreasonable Costs of arbitration significantly greater than cost of court case Venue is unreasonable – nationwide service for small sums. terminate agreement.must go beyond face of K – look at circumstances. must travel to California No mutuality. forum selection and confidentiality in TOS show users have no effective means of resolving disputes with defendant Arbitration clause is unconscionable and unenforceable JG – get fresh consent when you modify the terms (like iTunes does) .may have to back off arbitration costs to keep arbitration clause JG – NEVER LITIGATE AN ISSUE IF YOU CAN AVOID IT . reserves right to unilaterally alter terms at any time . unambiguous act – click “I agree” Shrinkwrap and clickwrap are enforceable – browsewrap is generally not enforceable HACKING – The Computer Fraud and Abuse Act (CFAA) CFAA – federal statute – most states have parallel statutes and interpretations vary.send your letters certified .

no crime US v.need 1.but competing views.CAUTION: often amended.did not go beyond banner screen. No deprivation of property. but also b/c actual notice deficiency 19 . bilateral arbitration clause Without authorization/in excess of authorization – conscious TOS violation enough? Court says yes – owner of site can define extent of authorization. because its probably not good law Note: definition of computer is extremely broad State v. some circuits think Allen’s actions constitute access Damage? No – only damage is cost of investigation and security improvements. never even entered ID/Password JG – knocking on the door != going inside . girl commits suicide “accessing a computer in commerce without authorization or in excess of authorization” TOS – can agree without signing but must check box – extensive prohibitions on Drew’s behavior . Morris – 2nd cir 1991 – created internet worm in 1988 to expose security flaws – OOPS Programming flaw in worm accidentally crashes the entire internet – realized too late “Intentional” access that leads to damages – do not need to intend the damages. Allen did not do anything to the computer. confusingly revised. Void for vagueness . only intend access “unauthorized access”? or “access that exceeded the scope of his authority”? Account test – “worm was designed to gain access to computers at which he had no account by guessing their passwords” – but does lack of an account necessarily mean lack of permission? Intended function test – “Morris did not use either of those features in any way related to their intended function” – how do you determine an intended function? Is SPAM intended function of email? .can’t you use a computer for its intended function and still commit a crime? US v. “relatively clear guidelines as to prohibited conduct” and 2. Drew – CD Cal 2009 – MySpace IIED case – fake internet boyfriend. variable interpretations – do not rely on reasoning or statutory language from older cases. provide “objective criteria” to evaluate whether a crime was committed Difficulty in determining marginal offenses does not make statute unconstitutional Here – basing a misdemeanor violation on a website’s terms of service runs afoul of void-for-vagueness Primarily b/c absence of minimal guidelines to law enforcement. Allen – KS 1996 – called SW bell modems by dialing random numbers – felony? Access? No.unilateral modification provision w/ notice via posting.

when breached. NO DOUBT ABOUT IT “surprising statute” – ppl who do not study internet law cannot believe this exists Passed in 1996 – part of the CDA – Part of the Telecommunications act – not controversial CDA was struck down in Reno v. would probably have common law liability §230 – federal immunity to any cause of action that would make service providers liable for information originating with a third party user of the service 20 . distributor = needs knowledge of defamatory content AOL walks the line between these two categories. radio. nor would “ordinary person” expect it .ANOTHER is key word here – you are not immune from your own content §230 (c)(2) – no liability for good-faith editing of content – even if protected speech -JG – “good faith” – hollow requirement – people try but (almost) never win §230 (e)(1) no effect on criminal law (2) no effect on intellectual property law Zeran v. ACLU – but §230 survived §230 (c)(1) – “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” .if EVERY violation made access unauthorized. America Online Inc. – 1997 – OK City bombing – fake t-shirts.reservations of discretion for web host. etc – ex post facto Statute is void for vagueness – Drew is acquitted CDA §230 – Intermediary Immunity (47 USC §230) “Bar none.particularly with MySpace – free service. unacceptably vague here because TOS does not specify which precise terms of service. the single most important piece of law discussed in this book” Blanket immunity for intermediaries – policy choice – gives intermediaries flexibility/power JG – WILL BE ON EXAM – 2 POINTS – 1. then it would be “incredibly overbroad” Making website owner the party who defines criminal conduct has its own vagueness problems . does not even implicate fraud Even if TOS can define crime.Statute – no notice that breach of the TOS constitutes a crime. will result in a termination of authorization .our focus – content immunity for ISPs and websites . unilateral amendment. ruins his life – sues AOL Common law – Publisher = strictly liable. YES THERE IS IMMUNITY 2.

” AOL is immune from suit. but hard because it seems to be a different animal . AOL hired him & retained editorial control. Drudge – DCC 1998 – false report of spousal abuse – Bloomenthal sues for defamation Drudge – content license with AOL – AOL markets him and has some editorial control over the content AOL has right to edit Drudge’s content – court says that does not matter.Courts in general have not distinguished these two cases – but follow Zeran – immunity Recent Developments Supreme Court has never weighed in on 230 – but its pretty standard so they probably won’t 2 major exceptions – crim law and IP – and in 9th circuit. In some sort of tacit quid pro quo arrangement with the service provider community.not an anonymous poster.distributor is a type of publisher for defamation law. Friendfinder)? 21 . just s/t lower standard If notice gave AOL duty to edit content. Promissory Estoppel claims (Barnes v. CCbill)? Or both (Doe v. even aggressive role in making available content prepared by others. immunity “providing immunity even where the interactive service provider has an active. state criminal laws courts are split on right of publicity – only fed (P10 v. Congress has conferred immunity from tort liability as an incentive to Internet service providers to self-police the internet for obscenity and other offensive material. Drudge is not JG – easy case after Zeran. even where the self-policing is unsuccessful or not even attempted. not for distributor liability – AOL still liable if they had knowledge of defamatory content & failed to remove it – and he provided notice Court says no – distributor liability is a subset of publisher liability. anti-spam. then 230 is meaningless Notice requirement is too burdensome on the internet – too much content to control – impossible .Zeran says 230 is only immunity for publisher liability. more notice means more liability – easier to just avoid attempts at self-regulation Notification by 3rd parties would become a means to suppress speech – pre-cursor of “heckler’s veto”? AOL’s immunity is not conditioned on anything they do – no liability JG – this holding is almost universally followed Blumenthal v.disincentive to self-regulation – any attempt at regulation will only lead to more notice. this is what Drudge does .also creates incentive to remove messages on notification regardless of their content to avoid liability – “chilling effect” on free speech . both protected by 230 . Yahoo) 230 DOES pre-empt – securities.

and Solis sexually assaulted her – he was arrested P suing for negligence. generally – content was Doe/Solis. eventually met. editorial and screening capacities . myspace just intermediary Fair Housing Council v. which means they are not immune Also. gross negligence. and negligent misrepresentation MySpace moves to dismiss – claims immunity under 230 (among other things) P says 230 immunity is limited to defamation/content related actions – this is about safety 230 provides immunity for myspace in their publishing.How far does this immunity extend? Doe v. “at least in part” of the content. Inc. spoke over the phone. they don’t magically become lawful when asked electronically online. Roommates.FHA makes it unlawful to ASK THE QUESTIONS regardless of the answers Roommates also liable for the search function – because the searches are based on the illegal criteria they force users to provide – this amounts to “screening” based on the criteria -distinguishes from generic search engines b/c based on illegal criteria they solicit A website falls within the exception to 230 if it contributes materially to the alleged illegality of the conduct Also equates sending emails with “access” – weird – can just access listings on the site 22 . – WD TX 2007 – P sexually assaulted by someone she met on MySpace P – 13 – lied and said 18 when registering.no immunity for posting Qs or forcing subscribers to answer as a condition of using services “If such questions are unlawful when posed face-to-face or by telephone. this makes them a developer. not the CREATION of content Site – creates questions and provides answer choices – they are content provider not intermediary . MySpace. fraud.but isn’t this really about their failure to screen content? Shouldn’t it be a 230(c) (2)? Yes – MySpace is immune from claims about failure to self-regulate as well – no liability for ineffective securitiy measure and/or policies relating to age verification JG – is this what 230 is for? Sort of. The Communications Decency Act was not meant to create a lawless no-man’s-land on the Internet” CDA does not grant immunity for “inducing 3rd parties to express illegal preferences” Important – Roommates.com FORCES users to answer these questions in order to use service.com LLC – 9th cir 2008 – site forces FHA violations – immune? NO Website requires info on sex/family/sexual orientation to use it – Fair Housing Act criminalizes discrimination based on these categories – hippies sue – website seeks §230 immunity 230 – immunize the REMOVAL of content. Solis(19) met her on myspace.

Remove listing 2. Roommates exception is very narrow 230 pops up in very strange places. and engaged in their own anti-counterfeiting activities. truthfulness – general IP stuff.but how much “encouragement” is necessary JG – unclear when liability attaches – either 1. 3-5MM of which was spent suing eBay. Tiffany sues them directly eBay – actively polices for fraud/counterfeiting. absent substantial affirmative conduct on the part of the website creator promoting the use of such tools for unlawful purposes” FN 37 “we must keep firmly in mind that this is an immunity statute we are expounding” Close cases must be resolved in favor of immunity. Notify law enforcement . At point of data entry or 2. Restrict/suspend seller’s account 4. because they are basically an internet fence eBay has some control over users through its terms of service. eBay had VeRO – Verified Rights Owner – notice and takedown system Tiffany participated in VeRO.ZING) 23 . At point of display JG – no line between “forced” and “urged” – courts decline the invitation NOTE search part – start with underlying theory of liability – its not the search. Warn seller 3. you know the material But how does this work on the internet? Tiffany Inc. Protects goodwill General exceptions – description. ubiquitous in a sense – always be aware of it CHAPTER 7 – TRADEMARKS SECTION 230 DOES NOT APPLY TO INTELLECTUAL PROPERTY – NO IMMUNITY Trademark is about identifying the source of a product Trademark infringement is about consumer confusion – trading on someone else’s good name 3 core values to trademarks – 1. though on a much more limited scale (ct points out 15MM over 5 years. Signal/identification 2.NOTE – this sounds an awful like the unconscionable terms from second life On top of self policing. and if they find something problematic they take steps: 1. eBay – SDNY 2008 – users sell counterfeit jewelry on eBay. or design your website to require users to input illegal content.BUT they are immune for the “additional comments” free-form field – no contribution to content “Providing neutral tools for navigating websites is fully protected by CDA immunity. you will be immune” . v. it’s the criteria Ambiguity – difference between forcing and enabling Final Thoughts on 230 230 is very broad – Zeran is interpreted very broadly. but when it is very clear that a website directly participates in developing alleged illegality. immunity will be lost “if you don’t encourage illegal content. Quality guarantee 3.

Probably success & possible irreparable injury. but you become liable when you learn of infringement . they routinely pulled the listing and warned the user. b/c it’s not worth finding a WCV.com in the URL. Customer gets off at 7 looking for WCV. serious questions going to the merits & balance of hardships sharply in plaintiff’s favor Need to show consumer confusion to succeed in Lanham Act claims . but that does not make them responsible for protecting Tiffanys JG – leading 2ndary liability internet case – eBays extensive police efforts don’t hurt either Compare with 230 – no liability up front. West Coast Entertainment – 9th cir 1999 – metatags JG – this is dying law and courts avoid it.isn’t this the very disinscentive that lead to 230(c)(2) immunity for screening content? Brookfield Communications v.com (registered 96) – C&D Preliminary injunction needs: 1. even though they know who they are buying from .also note – search engine has an additional moving part to the billboard – the search results are the result of the terms entered by the user JG – search engine automaton wars – a strange and interesting place 24 .no use of terms “confusingly similar” to marks in metatags REMEMBER THIS IS USELESS – NOBODY USES METATAGS ANYMORE B/C THEY ARE STUPID .IE blockbuster puts up a billboard that says “West Coast Video” exit 7 – WCV is at exit 8. not eBays – eBay does it voluntarily. but the billboard illustration is “awesome” Sites used meta-tags to manipulate search results back in the day – engines have stopped using them Brookfield = moviebuff (1987) (TM 1991) West Coast = moviebuff. so they did not “continue to supply” their services once they had the requisite knowledge It is Tiffany’s job to police their trademark. knows or has reason to know is engaging in trademark infringement Generalized knowledge of infringement is not enough. distributor continues to supply a product or service to someone whom it 2. that’s not confusing) But moviebuff in metatags causes initial interest confusion – “captures initial consumer attention” . or 2.Tiffany sues for Contributory trademark infringement – 2 prongs: 1. They will just go to blockbuster. Blockbuster is at exit 7.got the domain name injunction – issue is the use of MovieBuff TM in metatags/search Less confusion – search will reveal both companies on list – different domain names will remove confusion once user arrives at the site (IE it says westcoastvideo. need specific knowledge – like the VeRA notices But when eBay received notice from Tiffany. but blockbuster is sitting there.

lawyers/entrepreneurs dance around trademark law to extort money for domain names.Super Happy Fun Ball problem – google selling ads based on the search results generated when a user enters trademarked terms – google liable for returning competitors of TM holder in results? JG – says this is not a problem that has an answer – its tricky Domain Names 3 reasons to register a domain name: 1. registers. false description.and 2.Toeppen has the case law on his side. that use is commercial.com – everything after that is a subheading Panavision owns marks – PANAVISION and PANAFLEX. which is for another person’s “commercial use of a mark” . Toeppen – 9th cir 1998 – Toeppen is squatting/selling trademarked domains Domain name – only means the part before the . among others – he is basically a professional DN salesman (troll) Panavision wants Toeppen to release – Toeppen says fuck you. but court does not buy it. dilution 15 USC 1125 (d)(1)(A) – liability if: 1. trademark owners get doctrinal extensions in response – have they struck the right balance? Panavision Intern. therefore the statute applies and Toeppen is diluting their mark JG – Is it enough that he is trying to sell the name? Isn’t this really a question of good faith? ACPA – enacted to deal with this problem – civil action against people with bad-faith intent . Because you own the trademark (policing/protection) 3.Remedy = damages AND transfer of intent ACPA – 15 USC 1125 (Lanham Act §43) – false designation of origin. or uses a domain name that is confusingly similar to a registered trademark 25 . tries to register Toeppen owns panavision.com Panavision sues for dilution. pay me (13 grand) Panavision to Toeppen: “fuck me? No. but the navigational function has been a problem for courts – distinguishing TM on an address bar from TM on a webpage is tricky Anticybersquatting Consumer Protection Act (ACPA) – domain-name specific statute(among others) to address this problem . Reservation/exclusion 2. traffics in. bad faith intent to profit from the mark(including a personal name that is protected as a mark). he is a: “spoiler” – preventing others from doing business on the internet under their Trademarked name unless they pay his fee Court says Toeppen’s use of the domain name was to sell it back to the rightful trademark owners. To sell it Domain names are a strange animal – sort of like a trademark. LP v. fuck YOU” – Toeppen registers panaflex.com.

pattern of multiple registration of domain names that are identical or similar to TMs 9. Intent to divert customers – either for $ or to harm the value of the TM 6. cybersquatting – only want name no $ 26 .(d)(1)(B)(i)(A) – nonexclusive list of factors to consider in determining bad faith intent: 1. extent the domain name is the legal name/common identifier of the defendant 3. lied on registration statement about knowledge of PETA PETA sues – infringement. Strength of the mark (distinctiveness/famousness) Famousness of the mark – speaks to knowledge – the more famous. without consent 3. TM/IP rights of the defendant. dilution. registering the name of a living person(or confusingly similar to) 2. Doughney – 4th cir 2001 – People Eating Tasty Animals – PETA wants their domain name Doughney – owns 60 domain names. the more likely you knew you were infringing a registers mark – which means the more likely you did it on purpose (d)(1)(B)(ii) – belief with reasonable grounds that the use was fair/lawful is a defense to bad faith 15 USC 8131 – Cyberpiracy protections for individuals (1)(a) liability for: 1. Bona Fide commercial use of the domain name by D 4. Non-commerical use of the domain name by D 5.court has discretion to award costs and attorneys fees to the prevailing party 18 USC 2252B – Misleading domain names on the Internet (a) misleading name with intent to deceive a person into viewing material constituting obscenity can be fined or imprisoned up to 2 years. if any. providing false/misleading contact information when D registered the domain name 8. or both (B) – a domain name that indicates sexual content of the site (IE “sex” or “porn”) != misleading PETA v. unfair comptetition.this factor includes D’s prior conduct that indicates a pattern of such conduct 7. in the domain name 2. D offers to sell the domain name without using or intending to use the domain name . with specific intent to profit by selling the name for financial gain to that person/3rd party REMEDY – forfeiture/cancellation/transfer of domain name .

they are not a parody – so this is infringement/unfair competition Cybersquatting – Ct says Doughney’s request for a settlement offer constitutes attempt to profit Bad faith – ct finds against Doughney on 1.instead – years of litigation.balancing test – no one factor is dispositive Lanham act applies to commercial only – 2 links plus 1K settlement offer amount to commercial use? Strict liability here – does not matter if Mishkoff did not intend commercial use . 7 & 8 JG – court does not care about . 2. Potential irreparable harm 3. (it really says that) Doughney also has about 30 links to commercial sites – this satisfies “in connection with” prong Court limits “confusion” standard and “parody” defense to the domain name alone.Doughney claims parody defense – district ct rejects – did not learn of parody until after reaching site Only question is whether Doughney’s use was “in connection with goods or services” and “that he used it in a manner engendering a likelihood of confusion” “in connection with” only requires preventing users from obtaining/using PETA’s goods/services. Webfeats – 6th 2003 – shops at willow bend fan site JG – they should not have treated Mishkoff as the enemy. gripe sites. the parody site is never going to win Taubman Co v. all of this could’ve been avoided . and no likelihood on merits Injunction proper when: 1. or need only have connected the website to other’s goods or services Here – ppl looking for PETA and getting Doughney’s site may fail to continue to search for PETA’s site due to anger/frustration or the belief that it does not exist. Potential adverse public impact 4. not page content JG – the “moron in a hurry” of trademark law Temporally separates the domain name’s message and the site’s content message – because they do not come at the same time. 4.com Taubman gets injunction. Likelihood on the merits. 6.2 links – 1 to his web design company.BIG disclaimer of non-affiliation and a link to the official mall’s site . 5. or the link to official site on Doughneys page JG – if this is the standard. 1 to his g/f’s t-shirt site Taubman sues for TM infringement – Mishkoff makes a gripe site about the lawsuit [X]sucks. Mishkoff appeals – says prior restraint. unnecessary problems Mishkoff – learned of mall being built near his home – makes a fan site with info about the mall/stores . 2.CT says links are commercial use – Mishkoff has removed since earlier holding so no longer relevant 27 . the disclaimer.org label. 3. Potential harm to P outweighs potential harm to D .

ONLY RESPOND TO OFFERS JG – likability of defendant/ different judge plays a role – also they want to set a precedent – cheaper in the long term The Domain-Name System Used to be one guy named John Postel. “confusion” is “between the parties’ goods or services” (uhh? Since when?) .so INTENT MATTERS in the registration of the domain name.as long as his speech is not commercially misleading.. the “sucks” at the end means theres no likelihood of confusion about source “Domain name is a type of public expression. . be liberal in what you accept from others” NSI gets contract in the 90’s – has beef with Postel who Wizard of OZ’s their ass. In the my. PLUS it is distinguishable Even if commercial.nyls. back in the ARPANET days “Be conservative in what you do. sends you to Top-Level Domain (TLD) – serve for all the ..JG says “is this a convincing analogy?” .circular? Taubman would have that site if Mishkoff didn’t? weird No likelihood of confusion all things considered Complaint sites – intent is to harm Taubman financially so commercial? (has case law to support) CT says that support is unpublished and not binding.com” would get a dead address instead of Mishkoff’s site otherwise.edu.com.analogizes domain name to a phone # .edu sites – recognizes the middle part.NOTE: link to his own web development site counts as commercial use too (unpossible?) Settlement does not count – limit Panavision b/c no practice of selling sites and did not initiate settlement – CT also says Mishkoff was not motivated by desire to sell domain name to Taubman . . govt intervenes and realizes this concentration of power is too dangerous Root server – recognizes the last part of the domain name is IE .net. but not in the use of it? CT – even if commercial. sends you to Second-Level Domain Server – understands the first part (www.. its origin of the products Disclaimer plus link to real site – also speaks to confusion CT talks about how users going to “shopsatwillowbend. no different in scope than a billboard or a pulpit.irrelevant about customer confusion of websites. and Mishkoff has a First Amendment right to express his opinion about Taubman” . so he is actually helping to re-direct lost customers that might be lost . or my.edu) This server gives your browser the IP address of the site you want (the numbers) 28 . Lanham Act does not apply JG – DO NOT INITIATE NEGOTIATIONS.

no K) Registrants have a property right in their domain names (form of intangible personal property) Test for property right: 1. They generate $ by selling domain names. then govt. and about 200 country codes – more coming (.currently 13 general. They’re legit because they say they are Do you need a domain name? just use an IP address? Alternate root DNS without ICANN control? What is the plus/minus of having everyone on the same DNS? Kremen v. People obey their rules because everybody else does. its another nonprofit with a self-perpetuating board.com . but Cohen wired the money out of the country and BOUNCED Kremen – cannot locate Cohen.note this is for gTLDs only – not for country codes. Capable of exclusive possession/control 3.com. calls NSI – NSI said it was too late to undue this – in the meantime Cohens rich Kremen took it to court and won.sex?) “registry” – runs TLD – if country code. so he sues NSI for conversion (contract claim failed. colleges for .registry sets basic policies for who can register – IE anyone for . cheap as hell to register ICANN accredits registrars (like godaddy) to accept registrations from public (this is how they drove the price down) – must sign your life away to get accredited – who register domain names with registries ICANN makes every registrar/registry force customes to agree to Uniform Domain-Name Dispute Resolution Policy (UDRP) (You durp?) which requires arbitration for Domain name TM disputes .org – had a nice little monopoly until ICANN came along and ruined everything – now open competition.edu.Internet Corporation for Assigned Names and Numbers (ICANN) – non-profit that oversees the domain name/IP address system.com registered by Kremen – Cohen steals through fraud Cohen – professional scumbag – fakes letter saying Kremen’s corp wants to abandon the domain name and authorizing transfer to Cohen NSI (then exclusive registrar) – takes letter on its face. etc -EDUCASE is a nonprofit who runs the . hands over the domain name Kremen discovers. entity chosen by ICANN based on technological ability to keep the server running reliably . if not. Cohen – 9th cir 2000 – sex. Putative owner must have a legitimate claim to exclusivity 29 .edu base Registrants handle the 2nd level – IE NYLS tech dept – but can easily outsource this stuff NSI used to run the registration process for . just the generic ones Begs the question – who the fuck is ICANN and why do they run the internet? 1998 – “memorandum of understanding” with US Dept of Commerce Otherwise. They control the root servers and set policies for top-level domains .net and . Interest capable of precise definition 2.

so what else? Email address? WoW equipment? Companies say no. but don’t have to wait for it to sue. based on goodwill in commerce – what happens when they conflict? Uniform Domain Name Dispute Resolution Policy (UDRP) Only remedy is transfer of the domain name.com domain name P – curtmfg. can be bought and sold . faster/easier/cheaper . He is eventually released because he will never talk – great guy Curt Mfg.com – cybergriping site about P’s shitty products Choice of law? Legal standard is hodgepodge – other arbitrations are persuasive precedent – they look at everything. and the arbitration can happen online (cheap/fast/easy) Requires arbitration. forum rules select arbitrator.consequence – domain name is property. ACPA UDRP – Kremen says personal property.. ACPA says Intellectual Property – trademark. ACPA is court – ppl take UDRP about 1000 to 1.curt-mfg. but generic names like food.basically a chance for people to play nice before shit pops off UDRP – has evolved into a general free flowing non-precedential internet trademark law JG – book about litigation misconduct – Cohen is a master of fraud/legal abuse – eventually goes to jail for contempt. v Sabin – UDRP arbitration 2008 – curt-mfg. but nothing is binding precedent – they eyeball it JG – not untethered to trademark law – tracks the basic concepts (note no cites to US caselaw. says if you want to legislate go ahead. but bankruptcy and divorce courts treat these things as property Kremen vs. those two agree on the 3rd panelist UDRP is arbitration. D can make it a 3 person panel. Inc. but does not prevent you from suing in court Must consent to arbitration if someone else asks. arbitration is stayed for court case Arbitration is not binding on the court Details are in section K of the UDRP. p.com – commercial site with federal trademark d.com are now in play .property entitled to legal protection and has value – can borrow against your domain name . 42 of the Trademark section of his book Complainant chooses forum. each side picks one. just other arbitrations) avoid favoritism of a particular country? 30 . we’re following common law JG – suit will never happen again – hold harmless agreements in registrations now (S M R T) .still trademark law.Lower court – intangible property cannot be converted – this court says LOLWUT Court grants the conversion claim.

Next check for valid defenses (permission/fair use/first sale) Permission = a license – can be express or implied Next we try to find a secondary infringer under 4 theories 1. Perform/display at a place open to the public or any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. Respondeat Superior – employers responsible for employee’s torts – applies to computer systems. the company is liable for the infringement 31 . reproduction 2. by means of any device or process 17 USC 101 c/r analysis – 1st try to find a DIRECT infringer. public performance JG – notice the absence of USE – its not infringement to read a book (you sell the use to others) JG – notice the word PUBLIC – private distribution/display/performance != infringement Publicly means: 1. IE if your company owns a computer and your employees program the computer to make infringing copies. public display 6. adaptation 3.com/ is not subject to ACPA/UDRP NFL/ICE seizure – parallel with Poker site seizure – is it legal? JG says nobody sued yet but its coming COPYRIGHT NOTE: DELIBRATELY OVERSIMPLIFIED OVERVIEW – digital copyright is a rat’s nest Basic premise = all original works of authorship are copyrightable .Facebook thing – claim your name. to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public. distribution to the public 4.facts are not copyrightable Can also get secondary liability Fair use is a full defense to copyright infringement 6 exclusive rights of a copyright owner 17 USC 106 1. or 2. public performance 5.the part after the .

Inducement – someone who distributes a device A – with the object of promoting infringement B – as shown by clear expression or other affirmative steps taken to foster infringement . exceptions. ringtones. the nightclub is liable for the infringement) 3. – 9th cir 1993 – loading software into RAM = copy? YES MAI – makes computers and software to run them – also services the computers/software.“souped up” contributory infringement (some courts say a subset) .2 is transitory. Peak Computer. a few courts have attempted to distinguish it but nobody overruled 32 . Vicarious Infringement – someone who has: A – the right and ability to control the infringing acts.licensed – no copying by 3rd parties like Peak Loading software into RAM memory constitutes a copy.JG – is this a distinction we really want to make? MAI is treated as good law. but don’t need employment relationship (the band plays infringing music at the bar. and B – has knowledge of the infringement SONY defense available – substantial non-infringing uses 4.most recent and least developed of the secondary infringement doctrines SONY defense does not apply to vicarious or inducement infringement JG WARNING – C/R act – studded with surprising definitions. and complicated licensing schemes – music copyright is a god damned disaster – Internet radio. and B – stands to gain a direct financial benefit from the infringement . and is therefore infringement (1993 remember) Court talks about what is “fixed” – says RAM is fixed b/c computer can work off it -Cartoon Network v. digital downloads as well – really difficult statutory/licensing problems that we will not attempt to address THE EXCLUSIVE RIGHTS MAI Systems v. which is necessary to run any other program on the computer (or the computer itself) Peak – computer maintenance business – maintains/repairs MAI computers MAI software. not fixed .same idea as respondeat superior. CSC says 1. Contributory Infringement – someone who: A – MATERIALLY contributes to the infringement.2. Inc. including the OS.

Is c/r limited to “tangible objects”? If so. You have de-railed. a reasonable fact-finder may infer that the distribution actually took place” – wow.so “making available” is not enough. also need intent to infringe . so they do not have a copy. as agent of C/R holder they have permission “where the defendant has completed all the necessary steps for a public distribution. do electronic communications count? 1st q – MS downloads do not count as dissemination. so they cannot possibly communicate a copy of something they do not have 33 . not enough to win the suit 2nd q – “any object in which a sound recording can be fixed is a ‘material object’” for C/R purposes . court grants but requires notice and a statement of rights.section of hard drive that contains the music is a “phonorecord” Electronic transfer obviates the need for “hand-to-hand” transfer Ability to copy without destroying forestalls the need for a “sale or other transfer of ownership” Material object – does not need to be material throughout the transfer. entrapment) P seeks to compel identity disclosure. Is “making available for download” c/r infringement? Or need dissemination? 2.REMEMBER – this is enough to compel ID disclosure. Files available plus large scale copying supports the inference that D participated in P2P network with the intent that other users could download the C/Red material . only at the end Ownership – means the “newly minted” ownership of the transferee. but now there is precedent that “making available” without proof of intent is not enough – so you can only punish the receiver? Perfect 10 v. Record companies can chase.” but whether. machine JG – who won? Nobody. and gathers info about computer/user the files were downloaded from. then confirms with RIAA that they can sue over it (so. Doe 1 et al – 2008 – MediaSentry – undercover agent for music stealing MS – downloads c/r-ed music from P2P users incognito. Amazon – 9th cir 2007 – thumbnails – display=infringement? Links=infringement? Google – only reproduces images not behind the paywall – but other sites do.” JG – careful with anonymous defendants – machine vs. when the transaction is complete. and google will automatically index the images and spit them out as search results Does google violate display right? No. plus 14 day waiting period before ISP reveals identity – 3 D’s contest subpoena 2 questions: 1. because google does not store the images. the distribute has a material object.London-Sire Records v. not whether or not the transferor gives up their own right “What matters in the marketplace is not whether a material object “changes hands.

Nev.wants statutory damages and injunctive relief – no actual dmgs cuz that shits worthless Both parties file for summary judgment – and another old judge tries to explain the interwebs Google – automated indexing of websites to provide search – caches the sites from the bot .this sounds an awful lot like intermediary immunity Copyright Licensing 3 common issues we will explore: 1. It is the website publisher’s computer that distributes copies of the images by transmitting the photographic image electronically to the user’s computer” . but Google does not itself distribute copies of the infringing photographs. When is an implicit license created? 2. including those in academia.google also provides their cached version of the site with the search results .so hyperlinks are not direct infringement of display rights The fact that google displays the thumbnail frames may be consumer confusion. but is not a direct infringement . Google – D. but this is CR not TM Does google violate distribution right? NO – google does not communicate the full-size images “Google’s search engine communicates HTML instructions that tell a user’s browser where to find full-size images on a website publisher’s computer. How does a license grant/limit user rights? 3. however… Field v.Google just points to the full-size picture and the result cpu and user cpu interact from there – this may raise contributory issues. Once you get the license.the cache has a disclaimer and links to the current actual page (mmm disclaimers) Court looks at “purposes served by Google’s cached links” as though google were a govt agency Archival copies – useful for inaccessibility/censorship/sites that move NOTE: court also mentions “allowed web site owners to recover copies of their own sites that might otherwise have been lost due to computer problems” – oooooo really . 2006 – Google caches old websites – is that infringement? NO Field – registers/posts C/Red works on his website – google caches – sues for infringement .“users. describe this function as highly valuable” well thank god 34 . Licensing with goals other than profit in mind? Open-source/freeware But it’s really only one question – what is the extent of your permission? You have permission without a license if you have fair use/ first sale / other defense.

no cache “The internet industry has widely recognized the robots.txt file that set the permissions to ALLOW “Field consciously chose not to use the “no-archive” meta-tag on his Web site” – ooo really Google’s records show people retrieved cached copies of all of Field’s works (Field did it himself) Google removed the cached links to the site when they found out Field FILED his complaint.b/c they might be difficult or even impossible to find the responsive info (oh noes) Google cannot possibly contact every website to determine if they want to be listed in results/cache Industry standard – metatags can opt out of search and/or cache – but default is in . or any person authorized by the owner. They also sent a letter telling Field they did not want to display w/o consent Implied License defense – nonexclusive license impliedly through conduct “from which the other party may properly infer that the owner consents to his use” “consent to use the C/Red work need not be manifested verbally and may be inferred based on silence where the copyright holder knows of the use and encourages it” Expert evidence of the typical behavior of web site publishers (?) “Field chose not to include the no-archive meta-tag…knowing that Google would interpret the absence of the metatag as permission” This behavior can be reasonably interpreted as the grant of a license to google for that use JG – implied consent – viewing web page carries implied license to copy into CPU’s memory 17 USC 109 – limitations on exclusive rights – effects of transfer (first sale doctrine) (a) – the owner of a copy lawfully made.Webpage Comparisons – allows users to identify “subtle but potentially significant” differences between old and new websites – which I am sure is completely benign and innocuous ID search query terms – cached links highlight the terms from the search query – allows users to “immediately determine why a particular page was deemed responsive” . and posted them where they were freely accessible on the internets Field had a robots. no search results. is entitled (without authority of C/R owner) to sell or otherwise dispose of the possession of that copy 35 . Field – aware of google’s practices and “manufacture*s+ a claim for copyright infringement…in the hopes of making money from google’s standard practice” – Field admits knowing how to opt-out Field also created all the “copyrighted works” at issue in a 3 day period.google also provides instructions on how to do this on their own site Alternate solution is a robots. registered them.txt file on the site – disallow means no bots. and BEFORE he actually served them.txt file as a standard for controlling automated access to Web pages since 1994.

Autodesk. re-sale to Vernor by CTA = breach of K but not infringement If licensed. remove proprietary info. removes Vernor’s auction – Vernor buys more copies from CTA which include the activation codes – Autodesk files takedown again Vernor seeks declaratory judgment under first sale doctrine Distribution or reproduction? If former.NOTE – if first sale. did it forbid duplication? Or E. defeat copy-protection. activation code (which is verified) Vernor – buys software 2ndhand – aware of SLA but did not consent / does not believe he is bound by it Autodesk – DMCA takedown notice to eBay. use outside western hemisphere. did it provide that C/R owner retained title? C. inc. so do the rights of the licensee – commercial has discount for upgrades SLA says Autodesk “retains title” to all copies and gives a “nonexclusive. was it labeled a license? B. nontransferable” license to use .also restricts transfer – no renting/leasing transferring w/o prior consent and cannot transfer outside the western hemisphere. etc – not OK AutoCAD – sold with license (SLA)– different terms for different uses (education/student/commercial) As the price goes up. Vernor is screwed . use for commercial if !=commercial Copy w/o authorization or fail to comply with restrictions = license termination (GRIM TRIGGER) License requires destruction of previous software within 60 days of upgrade – “autodesk reserves the right” to require satisfactory proof of destruction Autodesk polices the license with serial numbers/tracking. Did it require the transferee to maintain possession for the duration of the agreement None are dispositive.(d) – the privileges under (a) do not (without authorization) extend to any person who has acquired possession from the C/R owner by rental/lease/loan or otherwise.first sale means you can do what you want with your 1 copy. whether physically or electronically (Cold War bitches) Restrictions on license – no meddling with our shit(modify/translate/decompile). did it require the return or destruction of the licensed copy? D. – 9th cir 2010 – AutoCAD – Vernor buys/resells at yard sales. without acquiring ownership . as usual – it’s a balancing test NOTE: You can own a copy with restrictions – “no obligation to return” maybe significant 36 . first sale doctrine. but a license is not ownership Vernor v. if latter. then both CTA AND Vernor are infringing on distribution right First sale factors in an agreement: A.

but the actual license must be free to all 37 . and the people who bought from Vernor infringed. provided copyright notice and this permission notice appears in all copies Hacktivismo license – some nonsense about human rights that is clearly unenforceable because “due process” means different things in different places – promote substantive values? GNU General Public License (GPL) – full text is on page 28 of Copyright chapter Gives right to distribute for free or for money. he infringed even though he did not know or believe he was infringing. and even though he did not agree to the SLA terms Essential Step defense – not infringement to make /authorize another copy or adaptation of a computer program if: 1. or 2. and found it to be unworkable Court holds: Software is licensed when copyright owner: 1. not owner – no first sale – infringing – this also means Vernor’s sale infringed.. new copy/adaptation is created as an essential step in utilization of the computer program in conjunction with a machine and that it is used in no other manner. and disclose the rights . significantly restricts users ability to transfer software. imposes notable use restriction OPEN SOURCE LICENSE SLA = licensee. new copy/adaptation is for archival purpose only and all archived copies are destroyed if continued possession of the program should “cease to be rightful” .weird language there JG – notes difference in rights between buying CD and downloading music JG – Don’t rely on the cloud – BACK UP ISC license – full permission to use/copy/modify/distribute software for any purpose. specifies the user is granted a license 2. receive source code or have access. and 3.you can charge money for the physical act of transfer and you can offer warranty protection .BUT autodesk had originally tried this. and that you know about your rights FREE MEANS FREEDOM – FREE DOES NOT MEAN PRICE Must give all rights that you have to anyone who you distribute to. can change software or use pieces of it in new free programs. etc – 6 degrees of Kevin Bacon Ownership and right of use are distinct “because autodesk allows customers to possess their copies of the software indefinitely and does not require recurring license payments” does not mean that it was a sale – “not dispositive” says court STRICT LIABILITY FOR VERNOR – b/c he bought an unlicensed copy. with or without free.

timing matters Court says conditions are vital to the copyright holder’s ability to benefit from derivative works . reputation. depending on your perspective Jacobsen v.JG – this is a “copyleft” license – or a “viral” license. scope = license . license violation means everyone who copied from the original violator are also in violation – this can create a HUGE time bomb. conditions to scope – covenants only = contract. is entitled to no less legal recognition” . same function. write it differently.also says “invited direct contact if downloader wished to negotiate other terms” crafty .contract breach requires materiality.remember ideas are not copyrightable – read the code.enforcement through injunctive relief is also valuable OPEN SOURCE LICENSES ARE ENFORCEABLE AS LICENSES NOTE: the difference between breach of K and license is the ripple effect – breach of K means that one person breached the contract. different method of getting there FAIR USE = complete defense to copyright infringement (equitable and fact specific – no test) 38 . imagine if like the clock program in windows was stolen from open-source ALSO NOTE: Katzer/Kamind admit copy/modify/distribute – how do you prove this with source code absent direct evidence? Remember this is COPYRIGHT – spontaneously creating the same code without knowledge is NOT infringement – license is enforceable. improvement Generally – nonexclusive license grant = waiver of right to sue for infringement.if contract. but everyone who copied from him did nothing. contract breach only BUT if license is limited in scope & licensee acts outside scope. can be binding much earlier than copyright licensing JG – remedies matter.statutory dmgs/atty fees.why does this matter? . can sue for infringement Distinguish covenants vs. conditioned on restating license terms/attributions and tracked changes Lack of $ is not the same as lack of economic consideration – IE market share. rather than *$+. but it is still pretty soft .avoiding the “contract of adhesion” rigidity from earlier in the course “the choice to exact consideration of changes. license is easier to violate . . Katzer – 2008 Fed Circuit – open source license on model train software DC says violation of the attribution condition of the nonexclusive license does not create liability for infringement where it would otherwise not exist – this court reverses – it sure as shit does Open source license – free to copy/modify/distribute.

slight quality loss through transfer 39 . can burn. fluid directory of all libraries – “collective directory” 2 ways to search – Napster search function and “hotlist” Search – is limited to user generated/submitted file lists – does not look at corresponding file Hotlist – user you downloaded from previously .Napster tells downloader the IP address.note: NOT THE DERIVATIVE WORK.copying music from CD to harddrive is “paradigmatic fair use” (also to iPod?) . nature of the copyrighted work 3.kinkos makes copy for student is not fair use.but no fair use for internal copies for employees . even if it would be when the student made the copies themselves (that’s fuckin interesting man) Otherwise it did not come up much…until we started stealing shit over the interwebs A&M Records Inc v. courts have developed std questions for each factor – tend to allow fair use for certain patterns of use. THE ORIGINAL WORK 4.can play the music on Napster software. – 9th cir 2001 – Napster – indexed file sharing – infringement MP3 = MPEG-3 = Movie Picture Expert Group standard file format #3 (I did not know that) Napster: 1. makes available for copying between network users 2. few answers .Napster keeps your hotlist. but you search the hotlisted users directory directly. but not for others 1. Amount and substantiality of the portion used in relation to the COPYRIGHTED work as a whole . Purpose and character of the use (including whether commercial or nonprofit/educational) 2. allows search for files on other users’ computers 3. without Napster as an intermediary Transfer. transfer copies of the files over the internet Access to Napster requires user to download software and create a username/password Users who share – make an index that goes on the Napster server (files stay on users drive) Napster creates a real time. Napster Inc. downloader connects directly with sharer .4 nonexclusive factors for fair use. SONY and fair use left open a lot of questions.$ . Effect of the use upon potential market for or value of the copyrighted work The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

also says record companies collect royalties for song samples on retail sites (LOLWUT) 40 . Effect of use on the Market Fair use is limited to copying by others that does not “materially impair the marketability of the work which is copied” – importance of this factor will vary with amount of harm and relative strength of showing on the other factors . Barrier to P’s entry into digital download market .commercial use “weighs against” fair use – IE Presumption of invalidity Use here is commercial because 1. so more deserving of copyright protection – cuts against fair use 3. sampling – temporary copies of the work before purchasing (but whole thing) 2. permissive distribution of music DC says this is not fair use. Portion used “wholesale copying does not preclude fair use per se” but copying the entire work ‘militates against a finding of fair use’ – but I mean comeon here – they are just jacking that shit 4. but: effective monopoly on every future medium for current copyright holders? Only music companies can create new markets in music? Indentified fair uses: Sampling – Napster does not limit the sample in length (of the song. 9th circuit agrees – ruins my senior year of college Fair use analysis: 1 – purpose/character: “merely replaces the object or the original creation or instead adds a further purpose or different character” – IE “transformative” – whether and to what extent . noncommercial divide under this element . Nature of the Use Music is creative. Users get for free something they used to buy 2.this is the scary and dangerous element – how the fuck do you know about future markets? 2 harms here – 1. amazon thing) .this is also tricky: yes.re-transmission in a different medium is generally not fair use (but not always – CD thing above) ALSO do the commercial vs. Sending a file to an anonymous requester is not personal use 2. Reduces CD sales among college students and 2.3 theories 1.Napster claims fair use on behalf of its users(b/c direct infringement claim – Napster never actually copies any of these files – its like the perfect 10 v. or of the time user has it) . space shifting – use Napster to access a recording they already own on CD (LOLWUT) 3.

Nature of the C/Red work Creative photos BUT previously published – no longer entitled to enhanced protection available to unpublished works – slightly in favor of D 3. there is an adverse impact on the potential market if the practice becomes widespread Even if it has a positive impact on the market for audio CDs.google “significant benefit to the public” weighs against unproven future market harm Secondary Liability SONY – not a direct infringer Not a vicarious infringer – sold the VCRs. no longer have right/ability to control 41 . amount and substantiality of portion used Entire image is necessary to serve the identification function 4.record companies are cagey about fighting this – they do not want a bad precedent Is streaming fair use? Permission? Perfect 10 v. effect on the market Thumbnails are not a substitute. not artistic expression “search engine puts images ‘in a different context’ so that they are ‘transformed into a new creation’” – transfer into new medium? Exact copy may be transformative so long as the copy serves a different function 2. Purpose and character Thumbnails = highly transformative – function is to improve access on the internet. Amazon 9th cir 2007– Fair use analysis for thumbnail images 1.intended commercial gain does not matter because it is transformative (different prong) .even if sampling non-commercial. that does not deprive the CR holder of the right to develop the digital download market Space-shifting Distinguishes the space shifting cases because they did not “simultaneously involve distribution of copyrighted material to the general public” – those cases were just the one user JG – scope of personal use is VERY unsettled . so they do not harm the market for the full-sized images .potential harm to cell phone thumbnail market is hypothetical – no proof it ever happened Court then weighs the factors “in light of the purposes of copyright” .

knowledge is constructive – JG says diff case if they had actual knowledge Contributory fits. must exercise right to police to “the fullest extent” Napster failed to exercise full rights . With knowledge of infringement . system operator is not liable merely because the structure of the system allows for the exchange of copyrighted material Vicarious liability – right and ability to control & direct financial interest Financial interest – availability of infringing material “acts as a draw” . Device from service 2. specific vs.Contributory infringement – 1.express reservation of rights policy To escape vicarious liability.also note – tied to a device – is software a device? “increasing unimportance of physical things creates problems for copyright law” A&M Records v.also increased userbase is a financial benefit to Napster Supervision – ability to block is evidence of the right/ability to supervise .“merely” – do potential future uses count? .but index only – no actual files – court says the indices are enough .napster has ability to locate infringing material and right to terminate user access SONY issues – distinguish 1. Grokster – SC 2005 – same idea as Napster but no central service No direct infringement No vicarious infringement – no control. general knowledge MGM v. they just give out the software 42 .without specific knowledge. Materially contributes 2.here. Napster – 9th cir 2001 – contributory infringement piece Material contribution – easy – they provide the service Knowledge – they have both actual and constructive knowledge of infringement Knowledge of specific infringing material and failure to purge material from system means the operator knows of and contributes to direct infringement . but to find this infringing would mean no more VCRs SONY defense – “merely capable of substantial noninfringing uses” .

culpable expression and conduct – more than just knowledge Intent – pursuing former Napster market – internal documents and advertisements . so court creates inducement liability DIGITAL RIGHTS MANAGEMENT DMCA §512 – anti-circumvention 17 USC 1201 A 1 A – no person shall circumvent a technological measure that controls access to protected work A 2 no person shall make a thing that: (a) – primarily designed/produced to circumvent (INTENT) (b) – limited commercial purpose other than circumvention (FUNCTION). can lock out competition Downside = hassle – won’t stop real pirates Universal City Studios v.no effort to develop filtering tools / prevent infringing activity in software . shown by clear expression or other affirmative steps taken to foster infringement then liable NEED purposeful. but in context its relevant Also need to show actual infringement by the recipients of the device SONY – court splits on this defense – not a service. but not source code – trafficking A(2) Corley – hacker magazine journalist –writes about DeCSS – advertising Universal v. compatability problem. no actual knowledge Open question is – how many non-infringing uses make it “substantial”? JG – grokster designed to exploit the SONY defense. Reimerdes – SDNY 2000 – lower court piece of Corley WIPO (World Intellectual Property Organization) conference spurs DMCA DeCSS – the fact that it does not work does not mean it is not protected by the statute If it had to be effective it would gut the statute – statute only applies to circumvention Purpose was to make linux DVD player.make money off ads – more volume more $ . not infringe copyrights 43 .not enough alone.INDUCEMENT – distribute a device with the object of promoting its use to infringe. Corley – 2nd cir 2001 – CSS – DVD encryption – Johansen cracks Writes program called CeCSS which de-encrypts DVDs into computer files Johansen – posts object code for program. or (c) – marketed with knowledge for use in circumventing a technological measure JG – defective by design – increases price.

CT – intent is irrelevant – you posted something that circumvents.other exceptions – reverse engineering. automatic. and email if available) 44 . or (iii) – if knowledge. phone. good faith encryption research No SONY defense to 1201 Also 1201 does not unconstitutionally abridge free speech 17 USC 512 – Online Copyright Infringement Liability Limitation Act (just call it section 512) Copyright immunity for intermediaries – with conditions/exceptions 512(a) – service provider immunity for transmittion/routing/connecting. no facts/circumstances that make infringement apparent.upon notice. sent to recipients by user. or transient and intermediate storage of that material in the course of If initiated by user. security testing. this statute is about circumvention of access control technology – Congress deliberately excluded fair use defense . made only accessible to recipients and deleted promptly and UNMODIFIED 512(c) – notice and takedown provision – the good stuff 1 – no liability for infringement because of storage directed by user on intermediaries system if: (a) (i) – no actual knowledge that the material /activity is infringing (ii) – if !=knowledge. not definitely an infringer though (B) – no direct financial benefit from infringing activity when they have the right/ability to control (C) . acts expeditiously to remove/disable access to material NOTE – can ignore notice but lose immunity. plus whatever else the CR wants 3 elements of notification A – written communication to designated agent substantially including: I – physical/electronic signature of authorized agent of owner of exclusive right II – ID of work allegedly being infringed III – id material that is claimed to be infringing – reasonably sufficient for service provider to locate IV – info sufficient for provider to contact the complaining party (address. statute applies Fair use argument – fair use is prevented by CSS – significant point BUT fair use is for copyright infringement. and give C/R office name/addy/phone and email address. acts expeditiously to remove/disable access to material 2 – must designate an agent to receive notifications through service/website in public access.

dmgs. Universal Music – ND Cal 08 – Prince song in baby clip – clearly fair use Prince has them take down the clip – poster gets EFF support. plus appropriately terminates users who blatantly/repeatedly infringe Do not need 100% compliance with safe harbors – missing a few webmaster contacts is OK Termination does not require actively policing for evidence of repeat infringement 45 . unauthorized use or an authorized use? Ct says – fair use is authorized use – so owner must evaluate fair use to have good faith belief of infringement Failing to consider fair use amounts to bad faith and therefore misrepresentation Perfect 10 v. attys fees. chases this out to court . unless (a) – provider takes reasonable steps to notify user of removal/disable (b) – counter notice – provide notice to original noticer. CCbill – 9th cir 2007 – perfect 10 sues CCbill and CWIE for multiple copyright claims CCbill = credit card. is it good faith? Underling Q – is fair use an excused. procedure for dealing with complains.no liability for takedown in good faith belief of apparent infringement 2 – exception for material removed pursuant to notice. to either CR holder or provider (depending on who lied) (G) 1.V – statement of good faith belief that material is infringing copyright VI statement that notice is accurate and authorized under perjury (D) – search engineno infringement for linking/location tools with same notice & takedown as in C (f) – knowingly materially misrepresenting an infringement or a removal is punished by: . CWIE = webhosting “implements policy” under 512 – means notification system.NOTE shifting attorneys fees makes this possible Fair use under 512 – if you don’t consider fair use before sending notice. 10 day waiting period (c) – replaces it in 10-14 days after counternotice. unless original complainer notifies them that they filed for a court order 3 – contents of counternotification – basically same as original notification 4 – no liability for observing takedown waiting period under the expedious takedown part (I) – conditioned on policy that provides for termination of repeat infringers’ accounts Lenz v. and if it does not actively prevent CR owners from collecting necessary info for notifications. gives copy of counterclaim.

it must be apparent the website instructed or enabled users to infringe another’s copyright – burden is not on the service provider to determining whether a website enabled infringement CCbill – unclear whether they fit the definition of service provider – remand No safe harbor for CWIE? P10 says they directly benefitted financially from infringement . restricts speech of Jehovah’s witness Private entity performing govt function – so cannot restrict speech just b/c private entity JG – you can say it is different. also cannot prevent c/r holder from sending noticeneed real address and real agent Missing elements of notice makes it impossible to verify Need repeat infringer policy PRIVATE POWER / INTERMEDIARY POWER Marsh v.P10 says unreasonable – Ct says your notices were not in substantial compliance so they do not have to be enforced Substantial compliance means substantial compliance with ALL of the clauses (not some) P10 wants constructive compliance from 3 separate documents taken together – not allowed CT says without authorized rep under perjury and good faith belief. – it does NOT say they would have to remove if these two are met though 3rd parties notices are relevant to “reasonableness” of policy implementation Policy is unreasonable only if provider failed to respond when it had knowledge – remand to reconsider the 3rd party notices with respect to the repeat infringer policy “red flag” – awareness of activity from which infringement is apparent – but notices without compliance do not create awareness – FAIL Illegal words in domain name – not when websites are “titillating in nature” – its just marketing Disclaimer on infringement site also does not meet awareness – even if they know.vicarious liability survives 512 – no protection for 2ndary. what amount to constructive notice . without deciding. Alabama – SC 1946 – incorporated town.court says test is whether it was a “draw” not just an added benefit Is it the reason they signed up? Here – their standard web hosting rate does not constitute direct financial benefit – they were collecting that either way JG . but how? Choice to use PS3 network – not whole internet . which they didn’t For website to qualify as a red flag.discusses.Marsh reasoning – not super-clear 46 . service provider does not have to remove.

used regardless of the level of network congestion 3.Ownership does not mean absolute dominion – the more open for public use. throttling broadband in a subjective manner. favors some programs/apps over others Reasonable network management – practice must further a critically important interest and be narrowly or carefully tailored to serve that interest – so strict scrutiny in FCC form Assume without deciding that easing network congestion is a critically important interest Overinclusive – 1.picking winners? Google is now free to decide what comes up in its search results? Distinguish page rank algorithm from the result displayed by google Facts are not protected b/c they can be proven false.terminating connections for bittorrent users with false packets Comcast – first says this is congestion remedy. Targets disfavored apps regardless of bandwith being used 2. has since reached the mainstream and the large media companies are doing it Comcast – uses bittorrent technology for its VOD service – and begins throttling its users . v Google Technologies – WD Ok 2003 – google PageRanks= speech? PageRanks are protected by 1st amendment. google’s page ranks are a protected opinion Network Neutrality Net Neutrality – prevent ISPs from picking winners – blocking access. equipment does not target only congested nodes – hits everything Unerinclusive – can use as much bandwidth as you want as long as it’s a favored application Suggests alternate remedies of price capping usage or throttling connection speeds. and there is no tort liability for intentional or even malicious manipulation of the page ranks by Google . working with application vendors for an optimal protocol for P2P Can block child porn or copyright infringement 47 . that theory is proven false and they say its P2P mgmt Comcast interferes based on the content of the transmissions using deep packet inspection. the more the owner’s rights become circumscribed by the statutory/constitutional rights of those who use it Court stresses the fact that the shopping center is freely accessible to the general public Search King Inc. etc – consumer protection for the oligopoly of internet services In RE: Comcast Corp – 2008 FCC – throttling broadband for bittorrent – P2P filesharing Bit torrent – started with smart shady people.

Dissent – tyranny by the minority – the P2P users are clogging up the internet for the regular folks. no unreasonable discrimination (IE content based) Preservation of the open internet – to foster competition. increase certainty Proposed new rules from FCC – not yet in effect 48 . there is limited bandwidth for all of us to share. innovation. and this rule prevents Comcast from keeping it distributed evenly Broadband Internet Practices FCC 2010 – preserving the free and open internet Want – transparency. no blocking.