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INTERNET LAW OUTLINE GRIMMELMANN SPRING 2011 I.

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 dont 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 Kennisons 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

- 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, shouldnt 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 Grimmelmanns sample rules to consider: - The law of the place where the server is located applies, and plaintiff sues there - the law of plaintiffs home jurisdiction applies, and plaintiff can sue there - the plaintiff can sue in any court with jurisdiction over d, and courts 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

Ds 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 courts defamation law provides same protections as 1st amendment B) or if the party opposing recognition wouldve 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 thats fuckin impossible man Since then, companies have found ways to locate users geographically so they can target ads Yahoos 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

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, expensive and burdensome Overblocking if domain name blocked, all sub-pages in that domain are blocked (Geocities) Ineffective proxy servers, 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 PAs 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 hows that work on the interwebs? Young v. New Haven Advocate (4th cir. 2002) CT newspapers on VA prisons via internet- have PJ? Std: Did defendant manifest an intent to aim their websites at a Virginia audience? - court says they did not, 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, but articles were posted on the internet specific jurisdiction in the Internet context may be based only on an out-of-state personss internet activity directed at the forum state and causing injury that gives rise to a potential claim cognizable in that state Here no proof Ds 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. Directs electronic activity into the State; 2. With the manifested intent of engaging in business or other interactions within the State; and 3. that activity creates, in a person within the State, a potential cause of action cognizable in the States 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. Court examines content of website/articles and finds they are targeted at CT, not VA Note: effects test (based on effects in state rather than intent) are much broader/easier to establish Boschetto v. Hansing 9th cir 2008 eBay item sale constitute minimum contacts? 1964 ford Galaxie 5

Plaintiff in CA bought car from D in WI, car was a piece of shit, 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, the more appropriate personal jurisdiction becomes JG notes often cited, rarely followed - here, interactivity would speak to eBays jurisdiction not the sellers, so kind of useless Note: Computer location does not matter, except when it does ALS test dominates, 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, which is a convergence of several different types of media words/videos/music etc US v. 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, shall be fined under this title or imprisoned not more than five years, or both. 3 elements to prove: 1. A transmission in interstate commerce 2. A communication containing a threat; and 3. The threat must be a threat to injure or kidnap the person of another True threat = unequivocal, unconditional, 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, blackmail and assault without consideration of First Amendment Issues Watts Baker made threats on a usenet group, also via email charges stem only from the emails Musings/considerations/desires are not enough need expression of intent dont need a specific target, only sufficiently specific to render statement more than hypothetical

Question is how a reasonable person would expect Gonda (email recipient) to interpret these messages, 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, 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. 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 doesnt 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; 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. Appeals to the prurient interest according to contemporary community standards 1. Depicts/describes sexual conduct defined by applicable state law in a patently offensive way, according to contemporary community standards of decency 3. no redeeming literary/artistic/educational/social value Can also ban child porn not protected, possession is a crime can prevent children from seeing porn that is harmful to minors, 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 90s Child Decency Act internet regulatory compromise

- criminalizes transmitting obscene or indecent material to minors - immunity for ISPs for user transmissions, and given ability to filter - crime limited to knowing transmissions, and affirmative defense of taking steps to restrict access or attempting age verification The interwebs are PISSED about this govt meddling, and unite against the govt in a geek rebellion Reno v. 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. 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 Hecklers Veto CDA is not narrowly tailored did not even consider alternatives, no tolerance for parental choice, 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 theres no way to prevent minors from posing as adults The CDA, casting a far darker shadow over free speech, 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. Kennedy says disabling saves this statute but library may disable, 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 hecklers veto problem 8

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, 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, 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, but does not have a problem with the local standard as applied in this case Breyer cannot give puritan communities a hecklers internet veto affecting the rest of the Nation, 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, 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. 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 - 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, police dont need a warrant because you consented Plain View if police are searching for something else, 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, 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. David 1991 D. 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, accuses him of deleting stuff, seizes PDA and access it with P/W No reasonable expectation of privacy when David entered password not a search 9

Petersons grabbing the book was not a seizure because it didnt meaningfully interfere with Davids possessory interest this is a little ridiculous, but it comes from chattel property law old school shit 2nd, 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 Davids privacy interest in the contents of the PDA require a warrant or consent Peterson had plenty of time to get one, didnt, so fuck him suppress the contents US. v. Warshak 6th Circuit 2010 Enzyte smilin bob is a con artist with a tiny penis - used fabricated survey in advertisements to show the product worked - also had auto-ship order free trial and they automatically send more until you cancel- 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 - 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. Did Warshak manifest a subjective expectation of privacy? 2. Was that expectation reasonable? Court says Warshak plainly manifested an expectation of privacy, based on the content of the emails Court says there is a reasonable expectation of privacy in emails, 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, inspect or monitor subscriber emails, that might defeat the expectation of privacy, 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, even if there is an assumption of secrecy But the bank in Miller was the intended recipient of the information, here the ISP is just the carrier Govt may not compel a commercial ISP to turn over the contents of a subscirbers emails without first obtaining a warrant based on probable cause. SCA is unconstitutional to the extent that it permits the govt to obtain emails without a warrant

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JG SCA requires specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation - compliance with these terms doesnt solve this case b/c thats 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. Protect individuals from having their private communications seen by other private parties 2. 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. Intentionally 2. Intercepts/tries to intercept 3. Contents of 4. 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, electronic or oral communication through the use of any electronic, mechanical, or other device Contents any information concerning the substance, purport, or meaning of that communication Electronic communication any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, 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; 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 - 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

- 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 theres special rules for cops to get authorization 2518 procedures for interception (1) written application to judge including a statement of applicants 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, or appear unlikely to succeed, 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 are leased to/commonly used by such person NOTE: states also have wiretap laws that parallel or interact with the federal statute OBrein v. OBrein FL district court 2005 Florida statute on illegal interceptions - wife installs spyware on husbands computer, recorded screenshots that captured communications - husband discovers, gets injunction for communications but were they intercepted? State statute defines intercept same as Wiretapt Act, so court looks to fed court for guidance Intercept must be acquired contemporaneously with transmission, 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, which copies communication as it is transmitted and routes the copy to a storage file Wife argues that once text is visible on screen, 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; this is an interception its screen grabs, not copying stored files after the fact

JG civil litigants drive interpretation because govt is torn about the breadth of the statute - AUSA wants wiretaps, cops want surveillance without a superwarrant - std is higher than a search warrant but dont need to disclose until after the fact STORED COMMUNICATIONS ACT 18 USC 2701 - thick identity as well as content 2701 (a) whoever: 12

(1) intentionally accesses without authorization a facility of an ISP; or (2) intentionally exceeds an authorization to access that facility; 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 - 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 - 6th circuit struck this down as unconstitutional in Warshak 2703(1)(b) must give notice but notice can be delayed and routinely is delayed - only government can compel disclosure private parties cannot compel disclosure Both SCA and Wiretap Act prohibit disclosure generally and give govt power to override - rough line between interception and storage DONT COUNT ON IT - always check for both, and generally try for both Wiretap standard = superwarrant warrant PLUS additional safeguards SCA after 180 days, lower standard than a warrant unconstitutional (at least in 6th circuit) Bernstein v. 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 were talking about identity now, 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

Tracking down a hacker is damn near impossible through technical means; international ISPs are not always cooperative, 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) - need a warrant, subpoena or court order DONT NEED TO GIVE NOTICE - requirements for order (called a d order) in 2703 (d) - 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, avoid litigation Doe I & Doe II v. Individuals unknown 2008 D. Conn. autoadmit defamation/harassment Plaintiffs were harassed on autoadmit 200 threads over 2 years multiple tort allegations File suit, move to discover identity; judge grants; P serves AT&T; AT&T alerts user to subpoena; D moves to quash; AT&T complies w/ subpoena; D moves to proceed anonymously, gets pro bono counsel Motion to quash P says this is moot because AT&T already complied court says no, 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, but does not extend to unprotected speech Balancing test weigh Ds rights under 1st against Ps need for discovery Factors: 1. 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, thus the lawsuit) 2. Specificity - 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? - here yes, specific statements/data, no other way of getting identity of poster 3. Central Need for this info to advance plaintiffs claims? obviously - JG this factor is geared more toward witnesses/nonparties than anonymous defendants 4. Subpoenaed partys expectation of privacy at time of posting? - here no expectation AT&T privacy policy (distinguish Warshak, which ignored svc agreement) 14

5. Adequate showing of legal claims? (JG this is hardest prong) courts differ on standards: - some are deferential Ps good faith basis or probable cause against defendant - 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 Ds conduct is not protected by 1st amendment JG practice notes CAREFUL NOT TO VIOLATE JUDGES RULES ABOUT SUBPOENAS - most judges want a discovery meeting first - best practice file suit, move for discovery permission, get judge to grant, then serve Skanks of NYC subpoena compels disclosure, then P drops lawsuit lawsuit as pretext for disclosure? Defendant tries to sue google for disclosing cant 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. 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. User requests website 2. Website responds with page that includes links to doubleclick 3. user automatically sends cookie to doubleclick to identify user 4. doubleclick sends targeted ads based on information stored in cookie Cookie records GET, POST, 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; only these 3 types of data; opt-out provision 15

2 methods to opt out 1. goto Doubleclick site and get an opt-out cookie; or 2. 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. What is the relevant electronic communications service - Internet Access is the service, ISP is the service provider 2. Are affiliate websites users under the service in (1)? - 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. 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, but if they are they are intended for doubleclick, 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, JG edited out part about the purpose but I assume theres some sort of circular logic where they dont violate the ECPA so no purpose In Re: JetBlue Airways Corp. EDNY 2005 class action shared data for military security study P wants damages, 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 - loss of $ value of their data is not cognizable claim no expectation of compensation Question becomes- are privacy policies enforceable? Do they have any value? CHAPTER 5 ACCESS Contracts, Torts and criminal law all play a role in the manner owners/operators set the terms and conditions for user access. The result is not always logical or consistent 16

Contracts ProCD Inc. v. Zeidenberg 7th Cir 1996 telephone directory use contract where copyright fails? Telephone directory database sold with shrinkwrap license Zeidenberg ignores, re-sells data License is in the box cannot read before purchase, but how else can you provide license? 3 part test: 1. Notice on the outside 2. Terms on the inside 3. A right to return software if the terms are unacceptable JG dont 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. 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, 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. Linden Research ED PA 2007 second life dispute TOS compels arbitration Linden froze Ps account and confiscated his property P sues D wants to compel arbitration FAA applies to compel arbitration must show: 1. a valid agreement to arbitrate exists between the parties; and 2. the specific dispute falls within the scope of the agreement 17

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; 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 - must go beyond face of K look at circumstances, purpose, 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; 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, terminate agreement, refuse current/future service without notice or liability, D determines whether agreement is breached, reserves right to hold property indefinitely on suspicion of fraud, reserves right to unilaterally alter terms at any time - no mutuality so substantially unreasonable Costs of arbitration significantly greater than cost of court case Venue is unreasonable nationwide service for small sums, must travel to California No mutuality, cost of arbitration, 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 - send your letters certified - always make people engage in an affirmative, 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; generally: Prohibits Intentional Access to a computer without authorization that causes certain harms 18

CAUTION: often amended, confusingly revised, variable interpretations do not rely on reasoning or statutory language from older cases, because its probably not good law Note: definition of computer is extremely broad State v. Allen KS 1996 called SW bell modems by dialing random numbers felony? Access? No- did not go beyond banner screen, never even entered ID/Password JG knocking on the door != going inside - but competing views, some circuits think Allens actions constitute access Damage? No only damage is cost of investigation and security improvements; Allen did not do anything to the computer. No deprivation of property, no crime US v. 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, 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? - cant you use a computer for its intended function and still commit a crime? US v. Drew CD Cal 2009 MySpace IIED case fake internet boyfriend, 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 Drews behavior - unilateral modification provision w/ notice via posting, bilateral arbitration clause Without authorization/in excess of authorization conscious TOS violation enough? Court says yes owner of site can define extent of authorization. Void for vagueness - need 1. relatively clear guidelines as to prohibited conduct and 2. 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 websites terms of service runs afoul of void-for-vagueness Primarily b/c absence of minimal guidelines to law enforcement, but also b/c actual notice deficiency 19

Statute no notice that breach of the TOS constitutes a crime, nor would ordinary person expect it - particularly with MySpace free service, does not even implicate fraud Even if TOS can define crime, unacceptably vague here because TOS does not specify which precise terms of service, when breached, will result in a termination of authorization - if EVERY violation made access unauthorized, then it would be incredibly overbroad Making website owner the party who defines criminal conduct has its own vagueness problems - reservations of discretion for web host, unilateral amendment, etc ex post facto Statute is void for vagueness Drew is acquitted CDA 230 Intermediary Immunity (47 USC 230) Bar none, 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. YES THERE IS IMMUNITY 2. 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. 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 - our focus content immunity for ISPs and websites - 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. America Online Inc. 1997 OK City bombing fake t-shirts, radio, ruins his life sues AOL Common law Publisher = strictly liable; distributor = needs knowledge of defamatory content AOL walks the line between these two categories, 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

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Zeran says 230 is only immunity for publisher liability, 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; both protected by 230 - distributor is a type of publisher for defamation law, just s/t lower standard If notice gave AOL duty to edit content, then 230 is meaningless Notice requirement is too burdensome on the internet too much content to control impossible - also creates incentive to remove messages on notification regardless of their content to avoid liability chilling effect on free speech - disincentive to self-regulation any attempt at regulation will only lead to more notice; 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 hecklers veto? AOLs immunity is not conditioned on anything they do no liability JG this holding is almost universally followed Blumenthal v. 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 Drudges content court says that does not matter, immunity providing immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others. In some sort of tacit quid pro quo arrangement with the service provider community, 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, even where the self-policing is unsuccessful or not even attempted. AOL is immune from suit. Drudge is not JG easy case after Zeran; but hard because it seems to be a different animal - not an anonymous poster, AOL hired him & retained editorial control, this is what Drudge does - 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 wont 2 major exceptions crim law and IP and in 9th circuit, Promissory Estoppel claims (Barnes v. Yahoo) 230 DOES pre-empt securities, anti-spam, state criminal laws courts are split on right of publicity only fed (P10 v. CCbill)? Or both (Doe v. Friendfinder)?

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How far does this immunity extend? Doe v. MySpace, Inc. WD TX 2007 P sexually assaulted by someone she met on MySpace P 13 lied and said 18 when registering; Solis(19) met her on myspace, spoke over the phone, eventually met, and Solis sexually assaulted her he was arrested P suing for negligence, gross negligence, fraud, 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, editorial and screening capacities - but isnt this really about their failure to screen content? Shouldnt 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, generally content was Doe/Solis; myspace just intermediary Fair Housing Council v. Roommates.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, not the CREATION of content Site creates questions and provides answer choices they are content provider not intermediary - 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, they dont magically become lawful when asked electronically online. The Communications Decency Act was not meant to create a lawless no-mans-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; this makes them a developer, at least in part of the content, which means they are not immune Also- 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

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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, 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, but when it is very clear that a website directly participates in developing alleged illegality, immunity will be lost if you dont encourage illegal content, or design your website to require users to input illegal content, you will be immune - but how much encouragement is necessary JG unclear when liability attaches either 1. At point of data entry or 2. 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, its the criteria Ambiguity difference between forcing and enabling Final Thoughts on 230 230 is very broad Zeran is interpreted very broadly, Roommates exception is very narrow 230 pops up in very strange places; 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 elses good name 3 core values to trademarks 1. Signal/identification 2. Quality guarantee 3. Protects goodwill General exceptions description, truthfulness general IP stuff, you know the material But how does this work on the internet? Tiffany Inc. v. eBay SDNY 2008 users sell counterfeit jewelry on eBay, Tiffany sues them directly eBay actively polices for fraud/counterfeiting, because they are basically an internet fence eBay has some control over users through its terms of service, and if they find something problematic they take steps: 1. Remove listing 2. Warn seller 3. Restrict/suspend sellers account 4. Notify law enforcement - NOTE this sounds an awful like the unconscionable terms from second life On top of self policing, eBay had VeRO Verified Rights Owner notice and takedown system Tiffany participated in VeRO, and engaged in their own anti-counterfeiting activities, though on a much more limited scale (ct points out 15MM over 5 years, 3-5MM of which was spent suing eBay- ZING) 23

Tiffany sues for Contributory trademark infringement 2 prongs: 1. distributor continues to supply a product or service to someone whom it 2. knows or has reason to know is engaging in trademark infringement Generalized knowledge of infringement is not enough; need specific knowledge like the VeRA notices But when eBay received notice from Tiffany, they routinely pulled the listing and warned the user, so they did not continue to supply their services once they had the requisite knowledge It is Tiffanys job to police their trademark, not eBays eBay does it voluntarily, but that does not make them responsible for protecting Tiffanys JG leading 2ndary liability internet case eBays extensive police efforts dont hurt either Compare with 230 no liability up front, but you become liable when you learn of infringement - isnt this the very disinscentive that lead to 230(c)(2) immunity for screening content? Brookfield Communications v. West Coast Entertainment 9th cir 1999 metatags JG this is dying law and courts avoid it, 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.com (registered 96) C&D Preliminary injunction needs: 1. Probably success & possible irreparable injury; or

2. serious questions going to the merits & balance of hardships sharply in plaintiffs favor Need to show consumer confusion to succeed in Lanham Act claims - 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.com in the URL, thats not confusing) But moviebuff in metatags causes initial interest confusion captures initial consumer attention - IE blockbuster puts up a billboard that says West Coast Video exit 7 WCV is at exit 8, Blockbuster is at exit 7. Customer gets off at 7 looking for WCV, but blockbuster is sitting there. They will just go to blockbuster, b/c its not worth finding a WCV, even though they know who they are buying from - no use of terms confusingly similar to marks in metatags REMEMBER THIS IS USELESS NOBODY USES METATAGS ANYMORE B/C THEY ARE STUPID - 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

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. Reservation/exclusion 2. Because you own the trademark (policing/protection) 3. To sell it

Domain names are a strange animal sort of like a trademark, 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 - lawyers/entrepreneurs dance around trademark law to extort money for domain names, trademark owners get doctrinal extensions in response have they struck the right balance? Panavision Intern, LP v. Toeppen 9th cir 1998 Toeppen is squatting/selling trademarked domains Domain name only means the part before the .com everything after that is a subheading Panavision owns marks PANAVISION and PANAFLEX, tries to register Toeppen owns panavision.com, among others he is basically a professional DN salesman (troll) Panavision wants Toeppen to release Toeppen says fuck you, pay me (13 grand) Panavision to Toeppen: fuck me? No, fuck YOU Toeppen registers panaflex.com Panavision sues for dilution, which is for another persons commercial use of a mark - Toeppen has the case law on his side, but court does not buy it, he is a: spoiler preventing others from doing business on the internet under their Trademarked name unless they pay his fee Court says Toeppens use of the domain name was to sell it back to the rightful trademark owners; that use is commercial, therefore the statute applies and Toeppen is diluting their mark JG Is it enough that he is trying to sell the name? Isnt this really a question of good faith? ACPA enacted to deal with this problem civil action against people with bad-faith intent - Remedy = damages AND transfer of intent ACPA 15 USC 1125 (Lanham Act 43) false designation of origin, false description, dilution 15 USC 1125 (d)(1)(A) liability if: 1. bad faith intent to profit from the mark(including a personal name that is protected as a mark);and 2. registers, traffics in, or uses a domain name that is confusingly similar to a registered trademark 25

(d)(1)(B)(i)(A) nonexclusive list of factors to consider in determining bad faith intent: 1. TM/IP rights of the defendant, if any, in the domain name 2. extent the domain name is the legal name/common identifier of the defendant 3. Bona Fide commercial use of the domain name by D 4. Non-commerical use of the domain name by D 5. Intent to divert customers either for $ or to harm the value of the TM 6. D offers to sell the domain name without using or intending to use the domain name - this factor includes Ds prior conduct that indicates a pattern of such conduct 7. providing false/misleading contact information when D registered the domain name 8. pattern of multiple registration of domain names that are identical or similar to TMs 9. Strength of the mark (distinctiveness/famousness) Famousness of the mark speaks to knowledge the more famous, 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. registering the name of a living person(or confusingly similar to) 2. without consent 3. with specific intent to profit by selling the name for financial gain to that person/3rd party REMEDY forfeiture/cancellation/transfer of domain name - 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, or both (B) a domain name that indicates sexual content of the site (IE sex or porn) != misleading PETA v. Doughney 4th cir 2001 People Eating Tasty Animals PETA wants their domain name Doughney owns 60 domain names, lied on registration statement about knowledge of PETA PETA sues infringement, unfair comptetition, dilution, cybersquatting only want name no $ 26

Doughney claims parody defense district ct rejects did not learn of parody until after reaching site Only question is whether Doughneys 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 PETAs goods/services, or need only have connected the website to others goods or services Here ppl looking for PETA and getting Doughneys site may fail to continue to search for PETAs site due to anger/frustration or the belief that it does not exist. (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, not page content JG the moron in a hurry of trademark law Temporally separates the domain names message and the sites content message because they do not come at the same time, they are not a parody so this is infringement/unfair competition Cybersquatting Ct says Doughneys request for a settlement offer constitutes attempt to profit Bad faith ct finds against Doughney on 1, 2, 3, 4, 5, 6, 7 & 8 JG court does not care about .org label, the disclaimer, or the link to official site on Doughneys page JG if this is the standard, the parody site is never going to win Taubman Co v. Webfeats 6th 2003 shops at willow bend fan site JG they should not have treated Mishkoff as the enemy; all of this couldve been avoided - instead years of litigation, gripe sites, unnecessary problems Mishkoff learned of mall being built near his home makes a fan site with info about the mall/stores - BIG disclaimer of non-affiliation and a link to the official malls site - 2 links 1 to his web design company, 1 to his g/fs t-shirt site Taubman sues for TM infringement Mishkoff makes a gripe site about the lawsuit [X]sucks.com Taubman gets injunction, Mishkoff appeals says prior restraint, and no likelihood on merits Injunction proper when: 1. Likelihood on the merits; 2. Potential irreparable harm 3. Potential adverse public impact 4. Potential harm to P outweighs potential harm to D - 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 - CT says links are commercial use Mishkoff has removed since earlier holding so no longer relevant 27

- 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 - so INTENT MATTERS in the registration of the domain name, but not in the use of it? CT even if commercial, confusion is between the parties goods or services (uhh? Since when?) - irrelevant about customer confusion of websites, its origin of the products Disclaimer plus link to real site also speaks to confusion CT talks about how users going to shopsatwillowbend.com would get a dead address instead of Mishkoffs site otherwise, so he is actually helping to re-direct lost customers that might be lost - analogizes domain name to a phone # - JG says is this a convincing analogy? - circular? Taubman would have that site if Mishkoff didnt? 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, PLUS it is distinguishable Even if commercial, the sucks at the end means theres no likelihood of confusion about source Domain name is a type of public expression, no different in scope than a billboard or a pulpit, and Mishkoff has a First Amendment right to express his opinion about Taubman - as long as his speech is not commercially misleading, Lanham Act does not apply JG DO NOT INITIATE NEGOTIATIONS, 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, back in the ARPANET days Be conservative in what you do, be liberal in what you accept from others NSI gets contract in the 90s has beef with Postel who Wizard of OZs their ass, govt intervenes and realizes this concentration of power is too dangerous Root server recognizes the last part of the domain name is IE - .edu, .com, .net; sends you to Top-Level Domain (TLD) serve for all the .edu sites recognizes the middle part; sends you to Second-Level Domain Server understands the first part (www.; or my. In the my.nyls.edu) This server gives your browser the IP address of the site you want (the numbers) 28

Internet Corporation for Assigned Names and Numbers (ICANN) non-profit that oversees the domain name/IP address system. They control the root servers and set policies for top-level domains - currently 13 general, and about 200 country codes more coming (.sex?) registry runs TLD if country code, then govt, if not, entity chosen by ICANN based on technological ability to keep the server running reliably - registry sets basic policies for who can register IE anyone for .com, colleges for .edu, etc -EDUCASE is a nonprofit who runs the .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 .com .net and .org had a nice little monopoly until ICANN came along and ruined everything now open competition, 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 - note this is for gTLDs only not for country codes, 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, its another nonprofit with a self-perpetuating board. They generate $ by selling domain names. People obey their rules because everybody else does. Theyre 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. Cohen 9th cir 2000 sex.com registered by Kremen Cohen steals through fraud Cohen professional scumbag fakes letter saying Kremens corp wants to abandon the domain name and authorizing transfer to Cohen NSI (then exclusive registrar) takes letter on its face, hands over the domain name Kremen discovers, calls NSI NSI said it was too late to undue this in the meantime Cohens rich Kremen took it to court and won, but Cohen wired the money out of the country and BOUNCED Kremen cannot locate Cohen, so he sues NSI for conversion (contract claim failed, no K) Registrants have a property right in their domain names (form of intangible personal property) Test for property right: 1. Interest capable of precise definition 2. Capable of exclusive possession/control 3. Putative owner must have a legitimate claim to exclusivity 29

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

Facebook thing claim your name- the part after the .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 rats nest Basic premise = all original works of authorship are copyrightable - 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. reproduction 2. adaptation 3. distribution to the public 4. public performance 5. public display 6. 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. 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; or 2. to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process 17 USC 101 c/r analysis 1st try to find a DIRECT infringer. 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. Respondeat Superior employers responsible for employees torts applies to computer systems. IE if your company owns a computer and your employees program the computer to make infringing copies, the company is liable for the infringement 31

2. Vicarious Infringement someone who has: A the right and ability to control the infringing acts; and B stands to gain a direct financial benefit from the infringement - same idea as respondeat superior, but dont need employment relationship (the band plays infringing music at the bar, the nightclub is liable for the infringement) 3. Contributory Infringement someone who: A MATERIALLY contributes to the infringement; and B has knowledge of the infringement SONY defense available substantial non-infringing uses 4. 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 - souped up contributory infringement (some courts say a subset) - 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, exceptions, and complicated licensing schemes music copyright is a god damned disaster Internet radio, ringtones, digital downloads as well really difficult statutory/licensing problems that we will not attempt to address THE EXCLUSIVE RIGHTS MAI Systems v. Peak Computer, Inc. 9th cir 1993 loading software into RAM = copy? YES MAI makes computers and software to run them also services the computers/software, including the OS, 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- licensed no copying by 3rd parties like Peak Loading software into RAM memory constitutes a copy, 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. CSC says 1.2 is transitory, not fixed - JG is this a distinction we really want to make? MAI is treated as good law; a few courts have attempted to distinguish it but nobody overruled 32

London-Sire Records v. Doe 1 et al 2008 MediaSentry undercover agent for music stealing MS downloads c/r-ed music from P2P users incognito, and gathers info about computer/user the files were downloaded from, then confirms with RIAA that they can sue over it (so, entrapment) P seeks to compel identity disclosure; court grants but requires notice and a statement of rights, plus 14 day waiting period before ISP reveals identity 3 Ds contest subpoena 2 questions: 1. Is making available for download c/r infringement? Or need dissemination? 2. Is c/r limited to tangible objects? If so, do electronic communications count? 1st q MS downloads do not count as dissemination; as agent of C/R holder they have permission where the defendant has completed all the necessary steps for a public distribution, a reasonable fact-finder may infer that the distribution actually took place wow. You have de-railed. 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 - so making available is not enough, also need intent to infringe - REMEMBER this is enough to compel ID disclosure, 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 - 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, only at the end Ownership means the newly minted ownership of the transferee, not whether or not the transferor gives up their own right What matters in the marketplace is not whether a material object changes hands, but whether, when the transaction is complete, the distribute has a material object. JG careful with anonymous defendants machine vs. machine JG who won? Nobody. Record companies can chase, 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. Amazon 9th cir 2007 thumbnails display=infringement? Links=infringement? Google only reproduces images not behind the paywall but other sites do, and google will automatically index the images and spit them out as search results Does google violate display right? No, because google does not store the images, so they do not have a copy, so they cannot possibly communicate a copy of something they do not have 33

Google just points to the full-size picture and the result cpu and user cpu interact from there this may raise contributory issues, but is not a direct infringement - so hyperlinks are not direct infringement of display rights The fact that google displays the thumbnail frames may be consumer confusion, but this is CR not TM Does google violate distribution right? NO google does not communicate the full-size images Googles search engine communicates HTML instructions that tell a users browser where to find full-size images on a website publishers computer, but Google does not itself distribute copies of the infringing photographs. It is the website publishers computer that distributes copies of the images by transmitting the photographic image electronically to the users computer - this sounds an awful lot like intermediary immunity Copyright Licensing 3 common issues we will explore: 1. When is an implicit license created? 2. How does a license grant/limit user rights? 3. Licensing with goals other than profit in mind? Open-source/freeware But its 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. Once you get the license, however Field v. Google D.Nev. 2006 Google caches old websites is that infringement? NO Field registers/posts C/Red works on his website google caches sues for infringement - 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 - google also provides their cached version of the site with the search results - the cache has a disclaimer and links to the current actual page (mmm disclaimers) Court looks at purposes served by Googles 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 - users, including those in academia, describe this function as highly valuable well thank god

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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 - 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 - google also provides instructions on how to do this on their own site Alternate solution is a robots.txt file on the site disallow means no bots, no search results, no cache The internet industry has widely recognized the robots.txt file as a standard for controlling automated access to Web pages since 1994. Field aware of googles practices and manufacture*s+ a claim for copyright infringementin the hopes of making money from googles standard practice Field admits knowing how to opt-out Field also created all the copyrighted works at issue in a 3 day period, registered them, and posted them where they were freely accessible on the internets Field had a 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 Googles records show people retrieved cached copies of all of Fields works (Field did it himself) Google removed the cached links to the site when they found out Field FILED his complaint, and BEFORE he actually served them. 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-tagknowing 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 CPUs memory 17 USC 109 limitations on exclusive rights effects of transfer (first sale doctrine) (a) the owner of a copy lawfully made, or any person authorized by the owner, is entitled (without authority of C/R owner) to sell or otherwise dispose of the possession of that copy 35

(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, without acquiring ownership - first sale means you can do what you want with your 1 copy; but a license is not ownership Vernor v. Autodesk, inc. 9th cir 2010 AutoCAD Vernor buys/resells at yard sales, etc not OK AutoCAD sold with license (SLA) different terms for different uses (education/student/commercial) As the price goes up, so do the rights of the licensee commercial has discount for upgrades SLA says Autodesk retains title to all copies and gives a nonexclusive, nontransferable license to use - also restricts transfer no renting/leasing transferring w/o prior consent and cannot transfer outside the western hemisphere, whether physically or electronically (Cold War bitches) Restrictions on license no meddling with our shit(modify/translate/decompile), remove proprietary info, use outside western hemisphere, defeat copy-protection, 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, 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, removes Vernors 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, first sale doctrine, if latter, Vernor is screwed - NOTE if first sale, re-sale to Vernor by CTA = breach of K but not infringement If licensed, then both CTA AND Vernor are infringing on distribution right First sale factors in an agreement: A. was it labeled a license? B. did it provide that C/R owner retained title? C. did it require the return or destruction of the licensed copy? D. did it forbid duplication? Or E. Did it require the transferee to maintain possession for the duration of the agreement None are dispositive, as usual its a balancing test NOTE: You can own a copy with restrictions no obligation to return maybe significant 36

- BUT autodesk had originally tried this, and found it to be unworkable Court holds: Software is licensed when copyright owner: 1. specifies the user is granted a license 2. significantly restricts users ability to transfer software; and 3. imposes notable use restriction OPEN SOURCE LICENSE SLA = licensee, not owner no first sale infringing this also means Vernors sale infringed, and the people who bought from Vernor infringed, 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, 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. 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; or 2. 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 Dont rely on the cloud BACK UP ISC license full permission to use/copy/modify/distribute software for any purpose, with or without free, 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; receive source code or have access; can change software or use pieces of it in new free programs; 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, and disclose the rights - you can charge money for the physical act of transfer and you can offer warranty protection - but the actual license must be free to all 37

JG this is a copyleft license or a viral license, depending on your perspective Jacobsen v. 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, conditioned on restating license terms/attributions and tracked changes Lack of $ is not the same as lack of economic consideration IE market share, reputation, improvement Generally nonexclusive license grant = waiver of right to sue for infringement; contract breach only BUT if license is limited in scope & licensee acts outside scope, can sue for infringement Distinguish covenants vs. conditions to scope covenants only = contract, scope = license - why does this matter? - statutory dmgs/atty fees; - contract breach requires materiality, license is easier to violate - if contract, can be binding much earlier than copyright licensing JG remedies matter, timing matters Court says conditions are vital to the copyright holders ability to benefit from derivative works - also says invited direct contact if downloader wished to negotiate other terms crafty - avoiding the contract of adhesion rigidity from earlier in the course the choice to exact consideration of changes, rather than *$+, is entitled to no less legal recognition - 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, but everyone who copied from him did nothing; license violation means everyone who copied from the original violator are also in violation this can create a HUGE time bomb; 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, but it is still pretty soft - remember ideas are not copyrightable read the code, write it differently, same function, different method of getting there FAIR USE = complete defense to copyright infringement (equitable and fact specific no test)

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4 nonexclusive factors for fair use; courts have developed std questions for each factor tend to allow fair use for certain patterns of use, but not for others 1. Purpose and character of the use (including whether commercial or nonprofit/educational) 2. nature of the copyrighted work 3. Amount and substantiality of the portion used in relation to the COPYRIGHTED work as a whole - note: NOT THE DERIVATIVE WORK, THE ORIGINAL WORK 4. 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. SONY and fair use left open a lot of questions, few answers - copying music from CD to harddrive is paradigmatic fair use (also to iPod?) - but no fair use for internal copies for employees - $ - kinkos makes copy for student is not fair use, even if it would be when the student made the copies themselves (thats fuckin interesting man) Otherwise it did not come up muchuntil we started stealing shit over the interwebs A&M Records Inc v. Napster Inc. 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. allows search for files on other users computers 3. 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, 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 keeps your hotlist, but you search the hotlisted users directory directly, without Napster as an intermediary Transfer- Napster tells downloader the IP address; downloader connects directly with sharer - can play the music on Napster software; can burn; slight quality loss through transfer 39

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. amazon thing) - 3 theories 1. sampling temporary copies of the work before purchasing (but whole thing) 2. space shifting use Napster to access a recording they already own on CD (LOLWUT) 3. permissive distribution of music DC says this is not fair use; 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 - re-transmission in a different medium is generally not fair use (but not always CD thing above) ALSO do the commercial vs. noncommercial divide under this element - commercial use weighs against fair use IE Presumption of invalidity Use here is commercial because 1. Sending a file to an anonymous requester is not personal use 2. Users get for free something they used to buy 2. Nature of the Use Music is creative, so more deserving of copyright protection cuts against fair use 3. 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. 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 - this is the scary and dangerous element how the fuck do you know about future markets? 2 harms here 1. Reduces CD sales among college students and 2. Barrier to Ps entry into digital download market - this is also tricky: yes, 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, or of the time user has it) - also says record companies collect royalties for song samples on retail sites (LOLWUT) 40

even if sampling non-commercial, 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, 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 - record companies are cagey about fighting this they do not want a bad precedent Is streaming fair use? Permission? Perfect 10 v. Amazon 9th cir 2007 Fair use analysis for thumbnail images 1. Purpose and character Thumbnails = highly transformative function is to improve access on the internet, 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. 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. amount and substantiality of portion used Entire image is necessary to serve the identification function 4. effect on the market Thumbnails are not a substitute, so they do not harm the market for the full-sized images - intended commercial gain does not matter because it is transformative (different prong) - 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 - 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

Contributory infringement 1. Materially contributes 2. With knowledge of infringement - here, knowledge is constructive JG says diff case if they had actual knowledge Contributory fits, but to find this infringing would mean no more VCRs SONY defense merely capable of substantial noninfringing uses - merely do potential future uses count? - also note tied to a device is software a device? increasing unimportance of physical things creates problems for copyright law A&M Records v. 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 - without specific knowledge, 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 - also increased userbase is a financial benefit to Napster Supervision ability to block is evidence of the right/ability to supervise - express reservation of rights policy To escape vicarious liability, must exercise right to police to the fullest extent Napster failed to exercise full rights - 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. Device from service 2. specific vs. general knowledge MGM v. Grokster SC 2005 same idea as Napster but no central service No direct infringement No vicarious infringement no control, they just give out the software

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INDUCEMENT distribute a device with the object of promoting its use to infringe, shown by clear expression or other affirmative steps taken to foster infringement then liable NEED purposeful, culpable expression and conduct more than just knowledge Intent pursuing former Napster market internal documents and advertisements - no effort to develop filtering tools / prevent infringing activity in software - make money off ads more volume more $ - not enough alone, 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, no actual knowledge Open question is how many non-infringing uses make it substantial? JG grokster designed to exploit the SONY defense, 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); or (c) marketed with knowledge for use in circumventing a technological measure JG defective by design increases price, compatability problem, can lock out competition Downside = hassle wont stop real pirates Universal City Studios v. 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, but not source code trafficking A(2) Corley hacker magazine journalist writes about DeCSS advertising Universal v. 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, not infringe copyrights 43

CT intent is irrelevant you posted something that circumvents, statute applies Fair use argument fair use is prevented by CSS significant point BUT fair use is for copyright infringement, this statute is about circumvention of access control technology Congress deliberately excluded fair use defense - other exceptions reverse engineering, security testing, 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, or transient and intermediate storage of that material in the course of If initiated by user, automatic, sent to recipients by user, 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, no facts/circumstances that make infringement apparent; or (iii) if knowledge, acts expeditiously to remove/disable access to material NOTE can ignore notice but lose immunity; not definitely an infringer though (B) no direct financial benefit from infringing activity when they have the right/ability to control (C) - upon notice, acts expeditiously to remove/disable access to material 2 must designate an agent to receive notifications through service/website in public access, and give C/R office name/addy/phone and email address, 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, phone, and email if available) 44

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: - dmgs, attys fees, to either CR holder or provider (depending on who lied) (G) 1- no liability for takedown in good faith belief of apparent infringement 2 exception for material removed pursuant to notice, unless (a) provider takes reasonable steps to notify user of removal/disable (b) counter notice provide notice to original noticer, gives copy of counterclaim, 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. Universal Music ND Cal 08 Prince song in baby clip clearly fair use Prince has them take down the clip poster gets EFF support, chases this out to court - NOTE shifting attorneys fees makes this possible Fair use under 512 if you dont consider fair use before sending notice, is it good faith? Underling Q is fair use an excused, 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. CCbill 9th cir 2007 perfect 10 sues CCbill and CWIE for multiple copyright claims CCbill = credit card, CWIE = webhosting implements policy under 512 means notification system, procedure for dealing with complains, and if it does not actively prevent CR owners from collecting necessary info for notifications, 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

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, service provider does not have to remove. 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, which they didnt For website to qualify as a red flag, it must be apparent the website instructed or enabled users to infringe anothers 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 - 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 - discusses, without deciding, what amount to constructive notice - vicarious liability survives 512 no protection for 2ndary; 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. Alabama SC 1946 incorporated town, restricts speech of Jehovahs witness Private entity performing govt function so cannot restrict speech just b/c private entity JG you can say it is different, but how? Choice to use PS3 network not whole internet - Marsh reasoning not super-clear

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Ownership does not mean absolute dominion the more open for public use, the more the owners 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. v Google Technologies WD Ok 2003 google PageRanks= speech? PageRanks are protected by 1st amendment, and there is no tort liability for intentional or even malicious manipulation of the page ranks by Google - 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, googles page ranks are a protected opinion Network Neutrality Net Neutrality prevent ISPs from picking winners blocking access, throttling broadband in a subjective manner, 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, 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 - terminating connections for bittorrent users with false packets Comcast first says this is congestion remedy, that theory is proven false and they say its P2P mgmt Comcast interferes based on the content of the transmissions using deep packet inspection; 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. Targets disfavored apps regardless of bandwith being used 2. used regardless of the level of network congestion 3. equipment does not target only congested nodes hits everything Unerinclusive can use as much bandwidth as you want as long as its a favored application Suggests alternate remedies of price capping usage or throttling connection speeds, working with application vendors for an optimal protocol for P2P Can block child porn or copyright infringement

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Dissent tyranny by the minority the P2P users are clogging up the internet for the regular folks; there is limited bandwidth for all of us to share, 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, no unreasonable discrimination (IE content based) Preservation of the open internet to foster competition, innovation, increase certainty Proposed new rules from FCC not yet in effect

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