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 Predictions about the direction of the internet will be outdated in five years.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
Easterbrook's principal conclusion
Develop a SOUND law of intellectual property, then apply it to computer networks. Do we have a sound copyright law?
Who invented movable type?
Gutenberg. It effect cyberspace because it effected the cost of copying/increased the demand for copyright law.
Easterbrook ends with three actions ppl should consider:
1. make rules clear
2. create property rights where there are none
3. facilitate the formation of bargaining institutions
Lessig counter beliefs to __________
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.
Two examples of law interacting with cybersapce
1. Zoning Speech
2. Protected Privacy
What is the zoning speech example?
Porn example. Real space v cyber space w/ children buying porn
What is the protected privacy example?
Shopping in a store example
Why does Lessig say it's wrong for people to believe that cyberspace law cannot be regulated?
Because it has no nature. It's architecture can be changed.
He argues we must think more broadly on the concept of regulation
Lessig's 4 concepts of behavioral regulation
2. Social Norms
3. Markets--regulate price
Examples of lessig's regulation in real space
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
examples of lessig's regulation in cyberspace
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
What are TDF? (Johnson&Post)
Transboarder data flow:
(Johnson & Post) Physical boarders are cased on a number of related considerations:
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.
(Johnson and Post) Global computer network is detroying the link between geographical location and ... 4 things
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
French courts decision on Yahoo! case
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.
ALA v. Pataki:Plantiffs charge that it's unconstitutional because...
it burdens free speech in violation of 1st Amendment and burdens interstate commerce in violation of the commerce clause.
What is the dormant 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.
Dormant commerce clause: has three main ideas
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
What are 3 reasons the New York Act is concerned w interstate commerce and violates the Commerce Clause? (ALA v. Pataki)
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.
What are packet switching protocols?
How does it apply to the ALA v. Pataki case?
subdivide messages into smaller packets.
They are often rerouted through different states.
The meat of ALA v. Pataki (gov. of NY)
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.
How do the burdens of the act exceed local benefits? (ALA v. Pataki)
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
Ashcroft v. American Civil Liberties Union: 3 justices
1. Justice Thomas
2. Justice O'Connor
3. Justice Kennedy
What do the parties first dispute in Ashcroft v. ACLU?
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
Facts on Ashcroft v. ACLU
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
J. Thomas on Ashcroft v. ACLU
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.
J O'Connor on Ashcroft v ACLU
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.
J Kennedy on Ashcroft v ACLU
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
Facts about Calder v. Jones
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.
What was a product of the Calder Jones case?
The effects test:
Calder v. Jones: Calder's analogy
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.
What is an objective of Goldsmith's essay The Internet and the Abiding Significance of Territorial Sovereignty?
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.
What are three arguments against Goldsmith essay (1)?
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
What are spill over effects?
inevitable consequence of unilateral territorial regulation of transnational transactions.
Spillover effects are inevitable.
What does Goldsmith argue in 'Against Cyberanarchy'?
The choice of law problems implicated by cyberspace are no more complex than the same issues in real space.
The skeptics overstate the challenge
What does Goldsmith say the skeptics first mistake is in his article Cyberanarchy?
they measure the feasibility and legitimacy of national regulation of cyberspace against an wrong measure.
What does Post say Goldsmith's position is?
Post lists off several reasons that cyberspace is not identical to real space (5 ways)
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 v. Advocate: basics
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.
Young argues the District of VA courts have jurisdiction over the libel suit with advocate based on 3 things
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.
How is Calder Jones differ from Young Advocate?
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.
To establish a trademark infringement under lanham act, Brookfield must establish what?
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
Brookfield vs. Westcoast is in which court?
Court of Appeals
What does the court rule about Brookfield v. Westcoast?
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.
What is the ACPA
AntiSquatting Consumer Protection Act
Cable News Network vs. Cnnews.com
CNN said stop using our domain name, it's trademarked and respected.
Maya said no. Their audience is targeted toward Chinese.
What is the registrant?
If you are a domain owner you are the registrant, and you hold the legal rights to the domain name.
What is the registrar?
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.
What is the registry?
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.
Washington v. Heckel
Heckel said it was in violation of the commerce clause, but they said no it's not.
Heckel fake subject line guy.
Citron v. Zundel
Canadian Human Rights.
Zundel offered a homepage on the internet that exposed Jews to hate and contempt
holding of Brookfield v. Westcoast
1. Westcoast is not allowed to use Moviebuff as a metatag
What is the main point of Santefe? Jurisdiction
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.
Three ways for Verisign to deal with the domain name dispute: (SanteFe)
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)
What is the holding of the SanteFe?
The court issued a unilateral order to Verisign to freeze it.
RealNetworks says that Streambox did what?
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.
What are two forms of protection RealNetworks uses against copyright?
1. Secret Handshake: holds that files on the RealServer can only be sent to the RealPlayer
2. Copy Switch:
Three tests of liability for DMCA:
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
Holding for RealNetworks v. Streambox
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.
Religious Tech Cent v. Netcom's holding
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
Religious Tech Center v. Netcom
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.
Charges against Grokster
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.
3 arguments in favor of inducement ruling
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.