COMM 466-Readings

• 1. believes the Law of the Horse applies when examining cyberlaw.  Law courses should be limited to subjects that illuminate the whole law.
• 2. Predictions about the direction of the internet will be outdated in five years.
• 3. How can we tackle cyberspace when we haven't dealt with law regarding yesterday's technology? This regards fair use, but no one understands fair use
• 4. There's nothing you can do about it except keep abiding by the notion that things ppl make freely available are freely copyable

Develop a SOUND law of intellectual property, then apply it to computer networks. Do we have a sound copyright law?

Gutenberg.  It effect cyberspace because it effected the cost of copying/increased the demand for copyright law.

• 1. make rules clear
• 2. create property rights where there are none
• 3. facilitate the formation of bargaining institutions

• 1. belief of the importance of illuminating the entire law, but also it is important to think about how cyberspace and law are connected.
• 2. limits on law as regulator and techniques to escape those limits.
• 3.

• 1. Zoning Speech
• 2. Protected Privacy

Porn example.  Real space v cyber space w/ children buying porn

Shopping in a store example

Because it has no nature.  It's architecture can be changed.

He argues we must think more broadly on the concept of regulation

• 1. Law
• 2. Social Norms
• 3. Markets--regulate price
• 4. Architecture

• 1. Law ex. threatens punishment if you buy drugs, cigerettes underage
• 2. Norms: ex. interacting w opposite sex
• 3. Markets: subway tickets affect the use of transportation
• 4. Architecture: ex. A town has a square

• 1. Law: ex. copyright
• 2. Norms: ex. talk to much on a disscussion blog about irrelvant things and people will kick you out
• 3.  Markets: ex. AOL switching from free to paid service
• 4. Architecture: code

Transboarder data flow:

• 1. Power: ex. U.S. doesn't impose it's trademark on Brazil because conflict would arise
• 2. Effects: ex. a trademark law in Brazil only applies to those in Brazil usually
• 3. Legitimacy: We accept those within a certain physical district to be governed by certian laws
• 4. Notice: Within the physical boundaries, there are signs alerting people of boundaries.

• 1. Power of local gov to assert control over online behavior
• 2. effects of online behavior on individuals or things
• 3. legitimacy of a local sovereign's efforts to regulate
• 4. ability of physical lovation to gie notice of which sets of rules apply

They charged that Yahoo! had the capabilities to make the site inaccessable if the user was located in France and ordered Yahoo! to block those users.

it burdens free speech in violation of 1st Amendment and burdens interstate commerce in violation of the commerce clause.

expressly grants Congress the power to regulate commerce "among the several states." The idea behind the Dormant Commerce Clause is that this grant of power implies a negative converse — a restriction prohibiting a state from passing legislation that improperly burdens or discriminates against interstate commerce.

• 1. Does it violate interstate commerce
• 2. Are there local benefits v. national burden
• 3. Is the internet being regulated locally--is it unique to the state

• 1. The Act represents an unconstitutional projection of NY law into conduct that occurs wholly outside NY
• 2. the Act is invalid because although protecting children from indecent material is good, the burdens on interstate commerce resulting from the act clearly exceed any local benefit derived from it
• 3. the Internet should be treated as a national preserve to protect users from inconsistent legislation.

• subdivide messages into smaller packets.
• They are often rerouted through different states.

ALA is saying you can't make a law like this because it involves interstate commerce.  NY says the act is aimed soley at intrastate commerce.

The internet is not confined to NY and it is unlikely the local population will be effected by this.  Furthermore, trying people out of state is necessary and it outweighs the local benefits

• 1. Justice Thomas
• 2. Justice O'Connor
• 3. Justice Kennedy

• the nature of the community--what are 'local community standards'?
• How do you decide what is 'harmful to minors'?
• Juries would apply different standards acros the country--Court of Appeals fears that all speakers on the Web must abide by the MOST puritan standards

• Court of Appeals said that it's legal system has no applicability to the internet because web publishers have no ability to control the geographic scope of the recipients
• If this is true, COPA needs to be challenged

• If we were to hold COPA unconstitutional, we must hold obscenity statutes unconstitutional.
• I assume that the act is narrow enough to render the national varietion in community standards unproblematic.

• Adoption of a national standard is necessary in my view for any reasonable reulation of Internet obscenity.
• Uses Miller case (which generalized the standards of people in California) to say a national standard is possible.
• doesn't believe COPA is overbroad.

• The COPA is overbroad
• To confine it geographically would cost a lot of money
• Supports the notion that COPA endangers first amendment free speech
• COPA effect imposes the most puritcanical community standard on entire country
• Court of Appeals  is 'no evidence to suggest adults everywhere share the same community standard. J. Thomas says no reason to believe [agrees w. court of appeals].  Kennedy says this reasoning clearly needs further consideration

• Calder (florida resident) is the president/editor of the national enquirer
• Smith (florida resident), a reporter, wrote in article about Jones (CA resident).
• Jones sued for libel, but they didn't know where to try to case.

The effects test:

• Says he's like a welder employed in Florida who works on a boiler which explodes in CA.
• Doesn't hold up because it says their actions were expressly aimed at CA. They knowingly caused issues in CA.

from the perspective of jurisdiction and choice of law, territorial regulation of the Internet is no less feasible and no less legitimate than territorial regulation of non-Internet transactions.

• 1. It's impossible to regulate the internet transaction territory
• 2. Unilateral territorial regulation of the internet leads to overlapping/inconsistent regulation of the same transaction
• 3. spill over effects

• inevitable consequence of unilateral territorial regulation of transnational transactions.
• Spillover effects are inevitable.

• The choice of law problems implicated by cyberspace are no more complex than the same issues in real space.
• The skeptics overstate the challenge

they measure the feasibility and legitimacy of national regulation of cyberspace against an wrong measure.

Unexceptionalism

• 1. instantaneously
• 2. zero marginal cost
• 3. several million people
• 4. near zero probability of error in the reproduction or distribution of that offer
• 5. product or service can be stored retreived and translated...

• Young is the warden in VA.  Prisoners moved from Connecticut to VA.
• Young sues journalist in Connecticut for libel.
• Advocate journalist says you don't have jurisdiction over me.

• The newspapers knew Young was a Virginia resident intentionally discussed and defamed him in their articles
• The newspapers posted the articles on their websites accessible in Virginia
• The main effects of the mean statements on Young’s reputation were felt in Virginia.

• Calder vs. Jones proved that their circulation target was toward CA.
• Young vs. Advocate, there is not enough substantial evidence that shows Advocate was attempting to target VA.

• that West Coast is using a mark confusingly similar to a valid, protectable trademark of Brookfield's.
• Must also show that public is likely to be confused about the source of sponsorship of West Coast's moviebuff.com

Court of Appeals

• There was no trademark infringement where an alleged infringer merely took advantage of a situation in which confusion was likely to exist and did not affirmatively act to create consumer confusion.
• However, Westcoast is barred from using Moviebuff.  But it's allowed to use the term Movie Buff.

AntiSquatting Consumer Protection Act

• CNN said stop using our domain name, it's trademarked and respected.
• Maya said no.  Their audience is targeted toward Chinese.

If you are a domain owner you are the registrant, and you hold the legal rights to the domain name.

The registrar is the company in charge of your domain, they are the ones you should contact if you need to make updates or get answers to any registration questions you may have. Name Registrars is a registrar.

The registry is the top level organization that handles a top-level domain. For example, Public Interest Registry, pir.org, is the registry that manages .org domains. The registrar contacts the registry should any questions arise regarding your domain.

• Heckel said it was in violation of the commerce clause, but they said no it's not. 
• Heckel fake subject line guy.

• Canadian Human Rights.
• Zundel offered a homepage on the internet that exposed Jews to hate and contempt

1. Westcoast is not allowed to use Moviebuff as a metatag

• US corporation wants Park to stop squatting on domain name.
• The registrar is in S. Korea.  They tell Park he doesn't need to stop. 
• Who has jurisdiction to do what?
• The registry is in the US because it has a .com.
• The US has jurisdiction to put hold on domain name but they don't have the jurisdiction to tell Park to give up domain name.

• 1. Delete it from the database--this requires the coporation of the current registrar (legal)
• 2. They have the capacity to delete it--but it's not allowed. (illegal)
• 3. You have a court order issued by the US to tell Verisign to delete it.  It would require them to change the procedures and programming of their registry. (illegal)

The court issued a unilateral order to Verisign to freeze it.

Violated the DMCA by distributing and marketing a product known as the streambox VCR.

offers products that enable consumers to access audio and video content through streaming.

• 1. Secret Handshake: holds that files on the RealServer can only be sent to the RealPlayer
• 2. Copy Switch:

• 1. primary purpose to circumvent a technological measure that effectively controls access to a copyrighted work
• 2. only commercially significant purpose to circumvent tech protect measures
• 3. is marketed for use in circumventing tech protect measure

Allows users to make fair use copies

RealNetworks has demonstarted that it would likely suffer irreparable harm if the Streambox VCR is distributed.

--They also argued that Streambox VCR would reduce the willingness of copyright owners to make their audio and video works accessible via internet.

RTC did not provide enough likelihood that Netcom is liable for infringement.  The closest they got was showing that it was contributory infringement--still the court ruled against it

• Erlich (infringement charges--> could have been fair use)
• created a site through Klemesrud who created a database through Netcom.  RTC was trying to charge Netcom w/ copyright infringement by not taking down Erlich's site when they were notified about infringement.

• 1. marketing themselves as a means to download copyrighted works
• 2. Their purpose is for financial gains, the size of their users effects their revenue
• 3. They made no effort to limit infringement of copyright by their users, with the exception of sending emails.

Sony applies to Grokster--G says that Sony just like the betamax, they have the ability of noninfringing uses

The court says no because Sony never had the intention to infringe, because of that you will be moved from vicarious liability to inducement.

• 1: Aim for a market share who's sole intent is to infringe
• 2: There was no effort to a filter, or stop infringement
• 3: Financial relationship between level of distribution and profit.