Prof. David Post

Law of Cyberspace -- Fall 2001

Introduction

    Some Logistics:

    This class meets every Monday, 4 - 5:50 PM.
    You can reach me at 204-4539, or by email at DPost@vm.temple.edu; the latter is prefereable (at least in the sense that you are more likely to reach me by email than by phone).  If you do choose to email me, please put "Cyberspace Law" in the subject line of your message; that will make it much easier for me to find it and to respond to it.

Syllabus and Assignments

Class 1:  Introduction to the Course and to Law in Cyberspace

Required Readings:

Findings of Fact, ACLU v. Reno I, 929 F.Supp. 824 (E.D. Pa. 1996), especially Paragraphs 1-49 and 74-81- focus on the court's discussion of of the features and characteristics of the Internet in the above Findings of Fact.

Jack Quarterman, What is the Internet Anyway?

Christopher Anderson, The Accidental Superhighway
 

Class 2:  Personal Jurisdiction

Required Readings:

Bensusan v. King, 126 F.3d 25 (2nd Cir. 1997)

Bensusan v. King, 937 F. Supp. 295 (S.D.N.Y. 1996)

Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998) -- focus on Parts I and III

Hearst Corp. v. Goldberger, 1997 WL 97097 (S.D.N.Y.)

Panavision Int'l v. Toeppen, 141 F.3d 1316 (9th Cir. 1998) -- focus on Part II A

David Post, Personal Jurisdiction on the Internet

Some Suggested Additional Readings:

The Drudge Report

Jay Kesan, Personal Jurisdiction in Cyberspace

 Dan Burk, Jurisdiction in a World Without Borders

 David Post and David Johnson, Law and Borders, Part I

CPT's Page on Jurisdiction In Cyberspace
 

Writing Assignment #1

    You are a new associate at the law firm of Jefferson & Whitman.  You attend a symposium on "Internet Legal Issues" with one of the partners in the firm  - we'll call her "Nancy."  Nancy is an experienced litigator; you should assume, however, that she does not have an extensive background in Internet-related legal issues.  One of the speakers at the symposium (Professor Brilliant) says something to the effect that the district court's jurisdictional holding in Drudge v. Blumenthal, and the 2d Circuit's decision in Bensusan v. King, are "clearly inconsistent with one another," that one opinion (Drudge) represents "the broad view" of Internet jurisdiction and the other (Bensusan) the "narrow view," and that the district court would not have been able to assert jurisdiction over Mr. Drudge had Blumenthal filed his action in a court in the 2d Circuit (because of the difference between the two courts in terms of their view of personal jurisdiction based on Internet contacts).

    Nancy happened to have studied with Professor Brilliant when she was in law school, and she doesn't think he's too bright, to be candid.  She hasn't read either opinion, but she has, she tells you, a "sneaking suspicion" that Brilliant is incorrect.  She asks you to prepare a short memorandum - no more than 3 single-spaced pages, 12 point font, or about 1500 words - explaining the situation to her. 

    This is due at our FOURTH class (Monday, September 24).

Class 3:  Choice of Law

Required Readings:

Dispute Between Minnesota Attorney General and Out-of-State Gambling Web Site:

   Statement of Minnesota Attorney General on Internet Jurisdiction

   Minnesota v. Granite Gate Resorts, Inc., 1996 WL 767431 (Minn. Dist. Ct. 1996)

Dispute Between Yahoo and French Government over Auction of Nazi Memorabilia:

   French Court Opinion 5/22/00

   French Court Opinion 11/20/00

   An Expert "Apologizes" for his Role in the Yahoo-LICRA Case

   Doug Isenberg, Struggling with the French Yahoo-Nazi Auction Decision

   Complaint by Yahoo for Declaratory and Injunctive Relief

Some Suggested Additional Readings:

A Look At How U.S. Based Yahoo! Was Condemned By French Law This page has an excellent collection of links to primary and secondary material about the Yahoo-LICRA case.  See also, CDT’s commentary on the Yahoo case, “French Court Imposes Speech Restrictions Beyond Its Borders”
Three Cheers for Internet Imperialism - -
 

Class 4:  Regulating Harmful Speech - Direct & Intermediary Liability

Required Readings:

Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998)

Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997)

Communications Decency Act of 1995 Section 230(c)
 

Some Suggested Additional Readings:

 Tech Law Journal, Zeran v. America Online, for background and links relating to this case.
 

Writing Assignment #2

    You work in the General Counsel's Office at Temple University.  Professor Brilliant teaches at the Temple Law School.  He has a webpage (much like, you may assume, my own webpage at www.temple.edu/lawschool/dpost/writings.html).  One of the things that Prof. Brilliant has posted on his webpage are links to "Examples of Good Writing" and "Examples of Bad Writing."  Under "Examples of Bad Writing," he has included excerpts from a paper he received several years ago from Sally Stupid, who was a student of his.  Unfortunately, he forgot to remove her name from the paper when he posted it.

    Your office has just received a letter from Ms. Stupid, complaining about this.  Among other things, she writes that she has "suffered enormous emotional distress" as a result of Prof. Brilliant's actions, that the partners at the law firm where she now works came across Prof. Brilliant's home page (and the link to her paper) and that as a result she may be fired, and she concludes her letter by saying that "in my opinion, Prof. Brilliant's actions are malicious, defamatory, scurrilous, libelous, and an outrageous blot on my reputation for which Temple University is ultimately responsible, and I have been in touch with my attorneys in contemplation of instituting legal action to redress this injury."

    Your boss, Temple's General Counsel, has heard about the Zeran case and Section 230(c).  She asks you to prepare a memorandum -- no more than 5 single-spaced pages, 12 point font, or about 2500 words - outlining the best argument that Temple has that it is immune from liability to Ms. Stupid by virtue of Section 230(c).

    This memorandum is due Monday, October 15.

Class 5:  Regulating Harmful Speech - Indecent and Obscene Speech

Required Readings:

ACLU v. Reno II,  217 F.3d 162 (3rd Cir. 2000)

Reference: Child Online Protection Act

Supreme Court Briefs:

Brief For Petitioner

Brief For Respondent

Some Suggested Additional Readings:

CDA II Behind Closed Doors

Marketing Pornography On The Internet

 Background and Links Related to ACLU v. Reno II

The Legal Challenge To COPA

ACLU v. Reno I, 521 U.S. 844 (1997)

ACLU v. Reno I, 929 F.Supp. 824 (E.D. Pa. 1996)

Article on Child Pornography Act of 1996

Planned Parenthood v. American Coalition of Life Activists, 244 F.3d 1007 (9th Cir. 2001) ("Nuremberg Files" web site case)
 

Class 6:  Regulating Harmful Speech - Filtering

Required Readings:

Mainstream Loundoun v. Board of Trustees of the Loundoun County Library, 24 F. Supp. 2d 552 (E.D. Va. 1998)

    See also Tech Law Journal's page on the  Mainstream Loudoun v. Loundon County Library, case for background and other useful links relating to this case.

Kathleen R. v. City of Livermore, 104 Cal. Rptr. 2d 772 (Cal.Ct. App. 2001)

Minnesota EEOC Decision (absence of filters as an EEOC violation)

Yahoo News Article on the Minnesota EEOC Decision (see below)
 

Some Suggested Additional Readings:

ACLU Files Challenge to Library Internet Censorship In Case Fast-Tracked for Supreme Court Review

ACLU, "Censorship in a Box, Why Blocking Software is Wrong for Public Libraries"

Article on Internet School Filtering Act

 Filters and the Public Library: A Legal and Policy Analysis, by Mary Minow

 Fahrenheit 451.2: Is Cyberspace Burning?

 Filtering Facts Archive

Cyberpatrol Website
 

Class 7:  Copyright - Direct and Intermediary Liability


Required Readings:

Religious Technology Center v. Netcom, 907 F. Supp. 1361 (N.D. Ca. 1995)

As you review the RTC v. Netcom case and the subsequent copyright materials, you may want to consult, as necessary, the following sections of the Copyright Act:

Sections 101, 102, 103, 106, 106A, 107, 109, 117, 201, 202, 301, 302, 401, 405, 408, 411, 501-506, 512, 1201-1205
 

Some Suggested Additional Readings:

 Copyright Basics

 Introduction to Copyright Law, by Stacey Dogan

 Copyright Law and the Internet, by Dawn Nunziato

 Reference: Scientology Website
 

Writing Assignment #3

    Your boss, Temple's General Counsel, asks you to "poke around" Prof. Brilliant's website some more to see, as she puts it, "whether he is up to anyu more mischief."  You discover that his webpage also contains his reading materials for his course on Copyright Law.  Those materials include links to a number of music files that Brilliant has downloaded from the Internet and stored on Temple's web server.  There are links to about 30 different songs -- mostly current popular rock songs.  (Prof. Brilliant uses these songs as examples when discussing various issues of copyright law).

    As far as we know, none of the copyright holders in any of this material are aware of these postings.  Your boss is, however, nervous about Temple's possible exposure to copyright liability.  She asks you for a memorandum consisting of two parts:  first, she wants to know "whether Temple has an obligation to remove these files from the webserver"; second, she wants you to play "Devil's Advocate," and to put together the best argument that a copyright holder would have that Temple is liable for copyright infringement damages arising out of Professor Brilliant's actions.   Your memorandum - no more than 8 single-spaced pages, 12 point font, or about 4000 words - is due Monday, Nov. 19.

Class 8:  Copyright and Technological Protection Measures

Required Readings:

U.S. Copyright Office, Summary of DMCA- Focus on the discussion of Titles I and II of DMCA

Section 512 of the Copyright Act

A & M Records v. Napster, 2000 WL 573136 (N.D. Cal) - 512(a) District Court Opinion

A & M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001) (9th Circuit Opinion)

Injunction Order 3/5/01
 

Some Suggested Additional Readings:

 Questions and Answers About the Napster Case

 Behind the Music Files: The MP3 Legal Controversy

Web site of Recording Industry Association of America

Web Site of Secure Digital Music Initiative

Web Site of Future of Music

UMG Recordings v. MP3.Com, 92 F.Supp.2d 349 (S.D.N.Y. 2000)

The UCLA Online Institute for Cyberspace Law and Policy's Napster Page
 

Class 9:  Copyright and Technological Protection Measures

Required Readings:

DMCA Section 1201

Universal City Studios v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000)

2nd Circuit Questions and Answers:

EFF/2600 Brief
MPAA Brief
Dept. of Justice Brief

DMCA Section 1202

Some Suggested Additional Readings:

 Access to Information is Not a Crime

 Want To Rip DVD's?

 Freedom of Speech Online
 

Class 10:  Code As Speech

Required Readings:

Bernstein v. United States Dept. of Justice, 176 F.3d 1132 (9th Cir. 1997)

Junger v. Daley, 209 F.3d 481 (6th Cir. 2000)

Suggested Additional Readings:

 Background on Bernstein

 Background on Junger v. Daley

 Source Code As Free Speech In Encryption Case

 Is Code Free Speech?

Free Speech and the Export of Crypto
 

Class 11:  OPEN

Class 12:  Conflicts Between Trademark Owners & Domain Name Holders in the Federal Courts

Required Readings:

Panavision v. Toeppen, 141 F.3d 1316 (9th Cir. 1998)

Bally Total Fitness Holding Corp. v. Faber, 29 F.Supp.2d 1161 (C.D. Cal. 1998)

Planned Parenthood Federation of America v. Bucci, 1997 WL 133313 (S.D.N.Y. 1997)

Sporty's Farm v. Sportsman's Market, 202 F.3d 489 (2nd Cir. 2000)

Section 1125 of the Lanham Act, as amended by the Federal Trademark Dilution Act and the Anticybersquatting Consumer Protection Act
 

Class 13:  The Internet Corporation for Assigned Names and Numbers (ICANN) and the Uniform Dispute Resolution Policy (UDRP)


Required Readings:

Background on ICANN:

ICANN.org

ICANNwatch.org

The DNS White Paper

ICANN's Uniform Dispute Resolution Policy (UDRP)- The Privatization of Trademark/Domain Name Disputes:
Overview of Domain Name Policy Development, "Bad Faith" and "Rights and Legitimate Interests"

The UDRP

wallmartcanadasucks.com decision

burlingtonmurderfactory.com decision

alloyrods.com decision (with dissent by Professor Post)
 

Michael Froomkin has an outstanding summary of the collision between trademark law and the domain name system here.

Some Suggested Additional Readings:

David Post, Governing Cyberspace: Where is James Madison When We Need Him?

The Consequences of Squashing Cybersquatting

Battling Cybersquatters: New Tools For Trademark Holders

Parody Sites Sucked Into Cybersquatting Squabbles
 

Class 14:  OPEN