Fall 1999
David G. Post
Temple University Law School

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The emergence of the global network -- the "Internet" and its constituent networks -- and the associated "digital revolution" -- the ability to access, store, and transmit vast amounts of information in digital form (computer software, videogames, music, text, etc.) -- presents an array of new problems and opportunities for lawyers preparing to practice in the 21st Century. It is becoming increasingly evident that the process of "mapping" existing legal concepts and tools into this new domain is not straightforward, and that a number of familiar legal concepts will need to be rethought before they can be efficiently applied in the new environment.

The goal of this course is primarily to introduce you to a representative subset of the legal problems that lawyers are addressing and will continue to address in this new environment. Coverage is by no means comprehensive; there are many interesting and important areas within the rapidly developing "law of cyberspace" -- such as the law of online contracts, the regulation of encryption technology, new questions about the privacy of online activities, and many others -- that we will not have a chance to discuss in any detail.

Helping you to produce high quality written work is an important secondary goal of the course; we will, therefore, spend a significant amount of time on those written assignments (about which, more below).

Third, I would hope that, in the course of your work this semester, you will become more comfortable with the information retrieval and transmission capabilities of this new medium, both because no discussion of the "law of cyberspace" can be very fruitful without some basic understanding of the special characteristics of the new domain, and because lawyers will increasingly be called upon to demonstrate some familiarity with Internet navigation as businesses (including law firms) increasingly utilize the global network as a means of delivering their services.

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Some Course Housekeeping Details

The class meets on Monday from 4-6 PM
My office hours are Mondays, 1:30 - 4 PM.  I'm always happy to meet with you at another mutually convenient time. Please use any of the following methods to contact me to set up an appointment:

Phone: 204-4539

Email: Or

You can communicate with me, and the other members of the class, through the class listserver, or "mail reflector," that we have set up. See description below.

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Course Requirements

Class Participation

I expect, and encourage, everyone to participate actively in class discussions. A (small) portion of your grade will be based on your participation in class. I also expect you all to be in class; if, for some reason, you going to be unable to make it to class, let me know beforehand.


I have set up a "listserver," or mail reflector, for this class's use. Once you "subscribe" to this service, you will be able to send mail to the listserver address and it will be distributed to all other subscribers (i.e., the members of this class and Prof. Post). This can be a very useful and productive way of communicating with one another. In particular, feel free to use the listserver to discuss the writing assignments -- e.g., to discuss resources that you have found (or to ask for help in finding useful material), to discuss particular problems you might be having in completing the writing assignments, etc. I will also use the listserver to distribute announcements about the class, anything from changes in the reading list, follow-up points from our class discussions, room changes, etc.

You must sign up for the listserver as part of the course requirements. I will not require (or grade) participation on the listserver itself -- but I think you will find it a useful adjunct to our class meetings, and helpful to you in completing the course assignments. 

Subscribing to the Listserver

To subscribe to the listserver, send an email message to

The message should contain, in the BODY of the message (NOT the subject line) the words:

subscribe cyberlaw Firstname Lastname

substituting your own first and last name where indicated. So, for example, if your name is "John Smith," your message would consist entirely of the following

subscribe cyberlaw John Smith

Once you have subscribed as above, you send messages to the listserver by using the address

Any message you send to this address will be distributed to all of the listserver subscribers.

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Writing Assignments

Much of what you take away from this class will, I hope, be greater facility in putting together quality written work-product; there is, quite simply, nothing more important in the practice of law than your ability to do so. You will be responsible for four written assignments during the course of the semester, revolving around a series of hypothetical problems concerning which you are to write a particular kind of document. These are described in more detail below.

Due dates for these assignments are not flexible; you must get assignments in on time, for reasons that will become clear in a moment. On the due date for Assignments 2, 3, and 4  -- assignment #1 is different -- I will hand each of you someone else's paper at the end of class.  You are responsible for editing that paper and returning it to the author by the date specified.  After you receive back your own paper as edited by one of your fellow students, you will then prepare a revised [and final] version to be handed in on the date specified below. For each of these assignments (nos. 2, 3, and 4), you are to hand in all (3) versions of your paper -- your first version, the copy as edited by your fellow-student, and your final revised version.

Assignment 1 [Due Sept. 13]

One of your firm's clients -- Small Stuff, inc., a toy manufacturer -- has asked for some advice. The partner who does most of the Small Stuff's legal work [Alice] has received the following e-mail from Small Stuff's general counsel [Bob]:

"Alice: Someone here just told me that our Internet Service Provider -- SmallNet, an ISP located here in Philadelphia -- is being threatened with something called the "Usenet Death Penalty." What the heck is that? Should I be worried about that? We've started to do a fair bit of business off of our web site (which is hosted by SmallNet) -- is this "Death Penalty" thing going to mean that customers can't get at our web site? I'll give you a call tomorrow to talk about this -- /s/Bob"

Alice -- who is, to put it charitably, not very comfortable with technical matters -- wants some "talking points" for her phone call with Bob tomorrow. Specifically, she'd like a brief memo -- short and to the point, one page, maximum -- explaining (a) what "Usenet" is, (b) what the "Usenet death penalty" is, and (c) whether there will there be any interference with Small Stuff's web site if the "death penalty" is imposed. [See my basic form laying out a proposed structure for this memo]

Alice is going to be out of town until September 13.  She asks all of you to collaborate on a single memo that you will give to her on her return.

Click here to see the memo put together by the students in my Fall 1999 seminar.

Due date  September 13 [Class 2]

Some research hints. One of the purposes of this assignment is to familiarize you with some of the tools for retrieving information about the Internet on the Internet itself. Descriptions of Usenet can be found in the readings below, but I do not believe that any of the listed readings contain any information about the Usenet Death Penalty. To obtain information about the UDP, you will need (I think) to spend some time online. You should spend some time searching both at one of the commercial legal online services (i.e., Lexis and Westlaw), as well as on the World Wide Web. For the latter purpose, you might find the list of search engines, and other Legal Resources on the World Wide Web listed in Appendix 1. Please keep track, at least in a general way, of the steps you took to find whatever information you come up with -- we will spend at least some time in class talking about the process of finding information on the Web.

The collaborative process is likely to be difficult.  This assignment is also designed to introduce you to the problem of "collective action."  How does a group of people, mostly strangers to one another, decide on a single course of action to take as a group?  What are the rules?  Who gets to set the rules?  Do you need rules?  What do you do about "free riders," i.e. people who sit back and allow others to do all the work in putting the memo together?  Would meeting in person help?  Who decides that?  Etc., etc., etc.  It is a difficult problem, and I will want to spend some time after you hand in the memo talking about the process by which it was produced and how you did, or did not, solve these problems.  Although the connection to Cyberspace Law in all this may appear obscure, it is actually a deep one, and one that we will explore a bit more later in the semester.

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Assignment 2 -- Due October 4

Your client is Imagination Designs, Inc., a New York corporation with its principal place of business in Philadelphia. Imagination Software does commercial graphic design work, and has recently begun to accept contracts for website design services. It has had customers throughout the country (and it even has a few customers overseas).

The head of the company, Ms. Johnson, tells you that they tried, a few months ago, to register the domain name "," with Internic, but they found that it had already been registered to Imagination Systems, Inc., a Virginia-based software firm. [You can visit the website at]. Ms Johnson would like to know (a) if there is anything she can do to get the domain name registered to her company, and (b) whether she has a viable claim of trademark infringement against Imagination Systems, Inc.

You are to prepare a short memorandum for Ms. Johnson (3 pages maximum) on whether or not they can raise a claim of trademark infringement. Note: you may assume whatever facts you would like (e.g., about the business operations of the two companies, whether or not either has received a trademark registration, but you must identify those assumptions clearly and expressly at the beginning of your memo. [See my basic form laying out the proposed structure for this memo]

Due date for first version: October 4 [class 5]
Due dates for edits: October 11 [class 6]
Due date for revised version: October 18 [class 7]
Review in class: October 25 [class 8]

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Assignment #3 -- Due October 25

Your client is Clint Billton, a well-known local political figure. He comes to your office one day and tells you that a number of messages have been appearing on the Usenet newsgroup soc.culture discussing allegations that he routinely solicits, and accepts, bribes from constituents in return for favorable political action on his part. One individual is apparently responsible for most of the charges; a number of messages with the most specific charges come from "" "Monster" also has a web page hosted at the bignet service --- -- where he has posted these charges against Billton as well.

Billton is quite upset; the Philadelphia Inquirer has picked up the story, and his political career, he believes, is in some jeopardy as a result of the publicity surrounding these charges. He claims that the allegations are blatantly, and completely, false. He asks you to advise him on whether he can sue "Monster," and/or Bignet, for defamation. You have persuaded him that the first order of business is to write a letter to the general counsel of Bignet, Laura Lawyer, requesting that they immediately terminate "Monster"'s account, and delete the offending web pages from their system. Please draft that letter [4 pages maximum].
 [See my basic form laying out the proposed structure for this memo]

Due date for first version: October 25 [class 8]
Due dates for edits: November 1 [class 9]
Due date for revised version: November 8 [class 10]
Review in class: November 15 [class 11]

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Assignment #4 -- Due November 15

You represent Temple University. Assume, for purposes of this assignment, that Temple University (a) has never enrolled a student from North Dakota, (b) has never sent any recruiter into North Dakota, (c) has no contracts with businesses located in North Dakota. Temple does, however, have a web page.

Last week, your office received notice that Temple has been sued in federal court (in the district of North Dakota) by a resident of North Dakota, Alan Author, for copyright infringement; according to the complaint, one of Temple's professors has posted an electronic version of one of Author's books at the professor's course web page.

University counsel -- i.e., your boss -- wants to submit a motion to dismiss this suit on grounds that the North Dakota court does not possess personal jurisdiction over Temple University. Please prepare a memorandum of points and authorities in support of that motion (8 pages maximum).

Due date for first version: November 15 [class 11]
Due dates for edits: November 22 [class 12]
Due date for revised version: November 29 [Class 13]

[You might be interested in taking a look at an actual memo accompanying a motion to dismiss on grounds of insufficient "Internet contacts," filed by Bruce McCullough of McCullough & McKenty of Wilmington, DE, at

The motion to dismiss itself is at  The Complaint can be found at  And a little bit about the case (from the *defendant's* perspective, at least) can be found at

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Date Class Subject Reading Required Writing #1 Required Writing #2 Required Writing #3 Required Writing #4
Aug 23 Class 1 Introduction None ----- ----- ----- -----
Aug 30 NO CLASS ----- ----- ----- ----- ----- -----
Sept. 6 LABOR DAY ----- ----- ----- ----- ----- -----
Sept 13 Class 2 The "geography" of cyberspace See readings Final version due ----- ----- -----
Sept 20 Class 3 The domain name system See readings Review in class ----- ----- -----
Sept.27 Class 4 Trademarks in cyberspace See readings ----- ----- ----- -----
Oct 4 Class 5 Copyright in cyberspace (1):  Intermediary Liability See readings ----- First version due ----- -----
Oct 11 Class 6 Copyright in cyberspace (2):  Digital music See readings ----- Edits due ----- -----
Oct 18 Class 7 ???  ----- ----- Revised version due ----- -----
Oct 25 Class 8 Speech (1): Libel and defamation See readings ----- Review in class  First version due  -----
Nov 1 Class 9 Speech (2): Regulating harmful speech: Constitutional issues See readings ----- ----- Edits due -----
Nov 8 Class 10 Speech (3): Filtering the Net See readings ----- ----- Revised version due ----
Nov 15 Class 11 Personal Jurisdiction See readings ----- ----- ----- First version due
Nov 22 Class 12 Governing Cyberspace See readings ----- ----- ----- Edits due
Nov 29 Class 13 ??????? ----- ----- ----- ----- Final version due

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Aug 23   Sept13Sept  20   Sept 27Oct 4   Oct 11  Oct 18   Oct 25Nov 1   Nov 8   Nov 15   Nov 22  Nov 29

Introduction to Cyberspace

In our first three classes, we will look at the "architecture" -- or is it the "geography"? -- of cyberspace. Who operates cyberspace? Who owns it, or any of its constituent pieces? We will focus in particular on the operation of the domain name system, a subject to which we will return at the end of the semester.

Class 1 [August 23]

    There is no special reading or preparation required for this class.  If you can, however, it would be useful if you spent an hour or so on the Internet on the following project:  How much information about yourself (personal or professional) can you find out there in "public" view?  Your current address?  Past addresses? Social security number?  Where you went to college?  Messages you may have posted on the internet?

Class 2: What is Cyberspace? [September 13]

It is, quite simply, not possible to talk intelligently about the legal issues arising in cyberspace without some understanding of what cyberspace is -- how it is put together and how it operates.  This, necessarily, involves some understanding of certain technical matters; the architecture of cyberspace is, for better or for worse, constructed out of "technical" building blocks -- the machines that do the actual "communicating" in this environment, and the software and communication protocols that allow them to do so (and constrain the ways they may do so), and the "wiring" over which this communication takes place.  We are not (and do not, presumably, aspire to be) system engineers; but there are "technical" features and constraints that must be taken into account in discussing the different ways that human behavior manifests itself in cyberspace (and, therefore, in discussing the different ways that "law" will or should apply to that behavior).

People often use the terms "cyberspace" and "the Internet" interchangeably. This is probably unfortunate; I think it is most helpful to think of cyberspace as the aggregate of digital computer networks worldwide, and to think of "the Internet" as but one component of that aggregate, one particular network that has its own particular characteristics and features. Be that as it may, it is clear that the Internet is, at least, an enormously important part of the global cyberspace, and we will spend some time in this class discussing its basic features.

There is a wealth of other information, needless to say, about the Internet's general features. I particularly recommend the following:

Class 3: How does the Domain Name System Work? [September 20]

The domain name system is a useful place to begin an examination of cyberspace law, for several reasons:

First, obtaining a "name" and "address" on the Internet is a pre-requisite for any other Internet-related activity; without an Internet domain name (and a corresponding "IP address"), one cannot "enter" this environment. The process by which names and addresses are allocated is thus fundamental to the functioning of the system as a whole; how does that process work? Who runs the naming system?

Second, many of the disputes over Internet activity (at least those that have reached a courtroom) focus on that naming process (not surprisingly, given the significance of that process).

Third, the domain name system is in some turmoil at the moment, as the United States government seeks some way to both divest itself of responsibility for operation of the system and to keep the Internet functioning in an "stable" manner.

Focus, in your reading, on the mechanics of the domain name system -- how does it work and how did it get that way? We will have occasion to discuss the interrelationships between the DNS and trademark law in the next class. Be prepared to discuss the Commerce Department's proposal (outlined in the first reading below); you might have to return to that reading after you have read some of the other introductory material listed and gotten a better understanding of the DNS.

One other question you should look into: as a practical matter, how do you get a domain name? See the new Internic home page at, as well as the Patent and Trademark Office's guidelines on Registering an Internet Domain Name.

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Class 4: PROPERTY IN CYBERSPACE, I  [September 27]


The scope of trademark rights with respect to uses in cyberspace has received a fair bit of attention. We will focus our discussion on what is probably the most frequently-litigated question in cyberspace law: Is the use of a sequence of characters as a domain name an infringement of trademark (if the domain name is identical [or similar] to a protected trademark?
Readings for Class 4 (Sept 27)
Our discussion in class will focus on the following cases GO TO: Top    Schedule   Syllabus/Readings  Writing Assignments    Resources

Class 5 [October 4] :  PROPERTY IN CYBERSPACE, CONTINUED:  Copyright Liability in Cyberspace

This subject is vast in scope; there are any number of interesting and difficult questions about the scope of copyright protection in cyberspace. We will focus on the question of intermediary liability -- liability of third parties (especially service providers) for the infringements committed by others. In my view, this is the most difficult (and most important) cyberspace copyright question of them all.

If you are unfamiliar with the basics of copyright law, you must look at at least one of the following general references:

We will focus our discussions on the following cases, each of which raises the question of "intermediary liability" and "contributory" or "vicarious" copyright infringement.: GO TO: Top    Schedule   Syllabus/Readings  Writing Assignments    Resources

Class 6 [October 11]:  Copyright in Cyberspace, Continued

   We will look at a current case study in the dilemma of copyright on the Internet, focusing on the regulation of digital music and the new .mp3 format, focusing on the following case:

    RIAA v. Diamond Multimedia, __ F.3d __ (9th Cir. 1999)

For general background on mp3 and this dispute, see the following:

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Class 7:  [October 18]

        There is no reading assigned in advance for this class; I'd like to leave this open either because we may need extra time in some of the earlier classes than I have budgeted for here, or because we will want to look at some 'late-breaking story' that would be pertinent given the way that the earlier classes have progressed.

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Class 8 [October 25]  Speech in Cyberspace, I: Libel and Defamation

Once again, we will focus on the question of intermediary (i.e., service provider) liability for online defamation. For basic principles, read the following 'early' cases and the commentary listed: In enacting the late, lamented Communications Decency Act, Congress appears to have substantially changed the groundrules regarding service provider liability. Look at section 230(c) of that statute, and then read the following more recent cases applying that provision to allegations of online defamation: For some interesting commentary about the facts behind the Drudge-Blumenthal dispute, look here.

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Classes 9 & 10 [November 1 and November 8]: Speech in Cyberspace, II: The First Amendment in Cyberspace

    Class 9

We will first focus on the opinions in Reno v. American Civil Liberties Union, 117 S.Ct. 2329 (1997),  [also available here] and ACLU v. Reno II, Preliminary Injunction Memorandum and Order (Feb. 1, 1999) No. 98-559.  Students at Yale Law School have put together a mock Supreme Court opinion in ACLU v. Reno II that you might find of interest as well.

    [You might also want to look at the District Court opinion in the first Reno v. ACLU case; indeed, he latter opinion (by the district court) may be the best place to begin your reading -- largely (though not only) because it contains a clearer discussion of the background First Amendment framework applied to this attempt to stamp out 'indecency' on the Internet; Justice Stevens, the author of the Supreme Court's opinion, is not, shall we say, a big believer in 'doctrine' and his opinion is a bit harder to parse (in my opinion)].

    If you are interested, you might take a look at the Electronic Frontier Foundation's CDA Archive, and/or the material collected at the ACLU site, for background information on this case -- which, as I'm sure you are aware, was the first big cyberspace law case, and which raises very important questions about the scope and meaning of the First Amendment in cyberspace (and, perhaps, elsewhere as well).

    For some (rather acerbic, but well-reasoned) commentary on the Supreme Court's opinion in this case, see Eugene Volokh, Freedom of Speech, Shielding Children, and Transcending Balancing.

    See also Carl Kaplan, NY Times Cyberlaw, A Regretful Tone in Judge's Decision on Internet Pornography, February 5, 1999.

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Class 10

    In this class we will explore the fascinating constitutional (and other) questions surrounding the use of "filtering" systems to control the accessibility of information on the Internet (systems seemingly endorsed by the Supreme Court in the ACLU v Reno case, above). Filtering raises a number of profound questions about the relationship of technology to law, and may illustrate a range of "new" questions about the way that "law" will operate in cyberspace. This argument is well set out in Lawrence Lessig's "What Things Regulate Speech"; see also my paper "Anarchy, State, & the Internet" for an early formulation of this issue.

    The use of filtering software has proven extremely controversial.  In addition to the Lessig article above, see

    One court has applied the First Amendment to the question whether it is an unconstitutional abridgement of the right of free speech for a public library to install filtering software on its public-access computers. For the library's internet use policy, see; for the ED VA's view of the constitutionality of this policy, see Mainstream Loudoun, et al v. Board of Trustees of the Loudoun County Library, ED VA 4/7/98.

    Another important constitutional issue that has arisen, and will continue to arise, regarding the regulation of cyberspace -- the freedom of States to regulate cyberspace activity in light of restrictions imposed by the so-called "dormant Commerce Clause" -- is explored in the very interesting American Library Association v. Pataki, 969 F. Supp. 160 (SDNY 1997) case and in Dan Burk's "Federalism in Cyberspace."

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Class 11 [November 15]: The Law in Cyberspace, I: Personal Jurisdiction

The ability of courts to exercise personal jurisdiction over activities occurring in cyberspace is an issue of large theoretical, and practical, significance. For a review of the basic jurisdiction "problem" in cyberspace, see We will focus on the following cases:

Class 12 [November 22]: The Law in Cyberspace, II:  Governing Cyberspace

    In this (and possibly the next) class, we will look at both some of the intriguing theory about new forms of cyberspace "governance," as we will use the reorganization of the Domain Name System as a kind of model for one governance form.

    First, some theory.  There are probably about as many models of cyberspace governance as there are authors writing about cyberspace governance, for the Internet has already stimulated some interesting thinking about the nature of governance and governing institutions.  We could easily spend much of the semester examining these issues (though they would probably not have made as much sense to you before we had covered the material we looked at in our prior classes).  It is also difficult to summarize these debates in any coherent way, because I am not sure that they have yet stabilized sufficiently to allow for adequate summarization.

     We'll try, in this class, to talk about these questions in the context of something we looked at earlier in the semester: the reorganization of the Domain Name System.  Although there is considerable disagreement about whether or not this reorganization is about "governing the Internet" in any meaningful sense, it will at least allow us to talk about some of the important and difficult governance questions as they apply to the Internet.

For some contrasting views about the nature of ICANN's "governance" activities, see the following:        Good summaries of the history of the control and "governance" of the DNS can be found in Developments in the Law—The Law of Cyberspace, 112 Harvard L. Rev. 1574, 1657-80 (1999) [available in pdf format here] and in Craig Simon's in-process dissertation on the subject.

     Finally, a somewhat haphazard and random collection of writings on the more general question of how conduct on the Internet will, or should, be governed follows:

  • Sharon Eisner Gillett & Mitchell Kapor, The Self-governing Internet: Coordination by Design (September 1996),
  • A. Michael Froomkin, Of Governments and Governance [Draft May 1999]
  • Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, Stanford Law & Technology Working Papers [1997]
  • David R. Johnson and David Post, Law and Borders - The Rise of Law in Cyberspace, 48 Stanford L Rev 1367 (1996)
  • Joseph Reagle, Why the Internet is Good:  Community governance that works well [Berkman Center Working Draft]
  • Joel Reidenberg, Lex Informatica: The Formulation of Information Policy Rules through Technology, 76 Texas L. Rev. 553 (1998) [NB: This link requires a Lexis password and ID]
  • The "technorealism" project
  • William J. Clinton and Albert Gore, Jr., The Framework for Global Electronic Commerce (1997),
  • John Perry Barlow, A Declaration of Independence For Cyberspace, (Feb. 8, 1996),
  • A. Michael Froomkin, The Internet as a Source of Regulatory Arbitrage; chapter in Borders in Cyberspace (MIT Press, 1997),
  • Carl Kaplan, NY Times Cyber Law Journal, How to Govern Cyberspace: Frontier Justice or Legal Precedent?, March 27, 1998,
  • David G. Post, "Governing Cyberspace," 43 Wayne Law Review 155 (1997).
  • Paulina Borsook, How Anarchy Works, Wired Magazine 3.10, (Oct. 1995),
  • U.S. Government Working Group On Electronic Commerce, First Annual Report, Nov. 1998,

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    Class 13 [November 29]

        I have chosen to leave this class open, at least for now -- let's wait and see how various topics develop in class before we decide what to look at in our last class.

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    Books on Reserve

    The following books have been placed on reserve. You might find them generally useful, both for background to the issues we will be addressing here and as a starting point for research on any number of specific topics.

    I recommend any and all of the above for general browsing purposes -- the Negroponte, Kelly, and Turkle for more general treatments of the question of what life in the electronic world is, or will be, like, the others for the somewhat narrower (but perhaps more directly relevant) focus on the development of law in this new domain. Useful resources all.

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    There are any number of WWW sites devoted to legal questions. You should begin to keep track of those that you encounter during research and reading for this class. The following is an incomplete, idiosyncratic, possibly out-of-date, but hopefully helpful list that should help you find information on most of the topics we will be discussing this semester.

    Cyberspace Law Classes

    A good place to find useful information on legal issues is by consulting one of the cyberspace law classes up and running on the net. I am aware of at least two collections of links to such course material: Prof. Jessica Litman's and Prof. Bernard Hibbitts'.  I also found Prof. Pamela Samuelson's course a particularly good source of information and useful links.

    Web Search Engines

    Also, Dejanews offers the rather remarkable ability to search through virtually all of the Usenet postings.

    Good "launch points" for legal information

    The following provide more structured collections of legally-relevant information: GO TO: Top    Schedule   Syllabus/Readings  Writing Assignments    Resources

    General Internet Information

    Online Publications

    Lobbies, policy bodies, and and partisan organizations

    These organizations wear a variety of political stripes, but have interesting things to say about something relevant to the seminar.
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