Internet LAW Outline Bambauer PDF

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INTERNET LAW OUTLINE INTRODUCTION I. What is Internet Law a. Law of the Horse i. Easterbrook says no such thing as Internet law ii. Should learn basic legal principles and just apply those more broadly to this new medium iii. Internet Law cannot teach us anything about other legal principles b. Lessig i. There is such thing as Internet Law ii. Internet Law can teach us about general legal principles iii. Four tools to regulate the Internet (see below) iv. Law responds to code (RIAA and Joel Tennenbaum), and code responds to law II. The History of Internet Law a. Cyber-exceptionalism vs. cyber-realism i. Cyber-exceptionalism = cyberspace as place ii. Cyber-realism = cyberspace as medium 1. Balance has shifted here 2. Realism allows greater regulation b. Cyberspace and place and government i. Johnson & Post 1. Territorial sovereigns powerless in Internet 2. Self-governance will ultimately rule the day, and core values will prevail 3. Cyberspace is “everywhere and nowhere” 4. Borders can exist ii. Barlow 1. Stronger version of J&P 2. Traditional governments have no place and no power in cyberspace 3. Bottom-up governance with users forming own social contracts iii. Goldsmith & Wu 1. Internet will be normalized, and states will retain power c. Examples i. Voyeur Dorm (ppl running voyeur business out of house zoned in residential neighborhood) 1. Where is adult fare actually offered to the public? a. At server? – then forum shopping issues b. At receiver? – then cannot regulate c. Nowhere? d. Virtual space? 2. Entertainment not being offered physically on premises – customers not going to house 3. In other words, no secondary effects to neighborhood

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INTERNET ARCHITECTURE I. Internet Design a. Network of networks b. End-to-end design i. Edges of network (computers) do all the work ii. “End” = any device that’s attached to the network, and is capable of sending/receiving data iii. Core of network is simple c. Four Layers i. Application – start here for outbound 1. Use 2. Ex: email program, Internet explorer program, etc. ii. Transport 1. Gets to right program on computer 2. TCP converts information, document, picture, etc., into segments, with a header and data in each segment, and then hands to next layer iii. Internet 1. Gets to right computer 2. IP converts segments into smaller pieces called packets, and each packet has a header and data, and then hands to the next layer iv. Physical – start here for inbound 1. Converts IP packets into chunks called frames, and then submits across physical connection 2. Ex: Ethernet cables, wireless boxes, etc. d. Technology comparisons and control i. Radio 1. Receivers dumb – only listen for loudest signal in band 2. Transmitters (core) = very smart ii. Phone 1. Receivers dumb 2. Network core is smart 3. Dedicated physical path between sender and receiver 4. All network permission comes from carriers; legal regulation of innovation (Hush-a-Phone v. U.S.) 5. Changes can be rapidly deployed e. Best Efforts Routing i. How ISPs route data through the cloud ii. No guarantee of success – just moves one step closer to destination iii. Zittrain’s “Bucket Brigade” – the crowd-sourced postal system f. Network Neutrality i. Telecommunication companies 1. Bucket brigade is a free ride for content providers 2. All data shouldn’t be treated equally 3. Should be able to offer premium shipping over the network (like FedEx)

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ii. Content companies 1. Incentives to discriminate content 2. Consider VoIP like Skype (In re Madison Rivers) – ISP will discriminate against Skype because ISP usually has ties to phone carrier iii. Current FCC Rules 1. Can’t discriminate on content as a service provider (no unreasonable discrimination) a. Means no premium service for certain companies/websites 2. Can’t block websites or apps that are lawful or non-harmful a. Non-harmful is really ambiguous term 3. Transparency in practices a. Network management practices b. Performance c. Terms (pricing, privacy, and more) 4. “Reasonable network management” permitted – HUGE loophole a. Security b. Unwanted traffic, like SPAM c. Reduce congestion d. Deal with copyright infringement 5. Mobile wireless providers exempt from FCC rules g. Domain Names i. Domain Name Service (“DNS”) 1. IP address directory for the Internet 2. DNS maps computer’s unique IP address to host names 3. Domain names are read right-to-left a. Ex: www.brooklaw . edu i. The root ii. .edu = top-level domain name (TLD) iii. brooklaw = second-level domain iv. www = host name (chosen by registrant) b. TLDs are controlled by registrars (ex: Educause runs .edu) 4. Domain names are hot property, and are perfectly rivalrous, which creates Trademark problems ii. UDRP – Uniform Domain Registration Policy 1. ADR-style response to cybersquatting and Trademark disputes 2. Four providers of dispute-resolution services – Pl free to choose a. ADNDRC b. NAF c. WIPO d. CAC 3. Three things pl must show under UDRP a. Domain name is identical or confusingly similar to pl’s TM or service mark b. Defendant has no rights or legitimate interests in domain name

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i. Use/prepared to use domain name for bona fide offering of goods/services? ii. Is defendant commonly known by domain name? iii. Legitimate, non-commercial fair use of domain name? iv. Purpose to misleadingly divert consumers, or tarnish mark? c. Defendant registered and is using domain name in bad faith i. Registration to transfer for amount greater than cost (holding mark ransom) ii. Registered to exclude (does defendant have pattern of this conduct?) iii. Disrupt competitor iv. Intentionally attempting to attract users for commercial gain or by creating likelihood of confusion w/ mark v. Non-use can be use (Nuclear Marshmallows) d. UDRP panelists look beyond DN itself to content of site 4. Remedies under UDRP a. Transfer of DN b. Cancellation of DN 5. Advantages of UDRP dispute resolution a. Relatively cheap and fast b. Registrars contractually bound to UDRP panel decisions 6. Disadvantages of UDRP dispute resolution a. Non-precedential and can be inconsistent b. Under-protective of speech c. No quality guarantee d. No appeals  unhappy parties must go to court; however, UDRP arbitrations not given formal deference in federal courts 7. Where is appropriate jurisdiction to resolve DN disputes? a. Where registered? b. Where targeted customers reside? c. Where operator resides? iii. Cybersquatting and the ACPA 1. Statutory alternative to UDRP for someone registering/using Trademark in domain name without authorization 2. Purpose = to protect mark owners 3. Anticybersquatting Consumer Protection Act (“ACPA”), 15 U.S.C. §1125 a. 2 requirements for liability i. Bad faith intent to profit from mark (9 nonexclusive factors) 1. IP rights in DN

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2. DN is person’s name or person commonly known by name 3. Prior use connected to bona fide offering of goods or services 4. Bona fide non-commercial or fair use in site accessible at DN 5. Intent to divert mark owner’s site to site that could harm mark owner’s good will a. For commercial gain, or b. With intent to tarnish/disparage mark 6. Offer to transfer/ sell/ assign DN for financial gain without use or intent to use for bona fide offering of goods or services a. Or: prior conduct pattern of this type of behavior 7. Providing misleading or false identification/ contact information when registering DN 8. Registering/ acquiring multiple DNs that persons know are distinctive marks or famous marks 9. Extent of mark’s distinctiveness or fame at time of registration 10. No bad faith if person had good faith/ reasonable belief that use was fair or lawful ii. Registers/ traffics in/ uses domain name that is: 1. Identical or confusingly similar (distinctive marks) 2. Identical, confusingly similar, or dilutive (famous marks) b. Statute authorizes in rem jurisdiction for injunctive relief, but not monetary relief c. Statutory damages: $1000--$100,000 per domain name 4. Cases a. PETA v. Doughney (ACPA claim is a winner for PETA; injunctive relief granted) i. Doughney registers Peta.org  “People Eating Tasty Animals” ii. PETA bring TM, unfair competition, cybersquatting claims iii. Defendant has pattern of conduct, and holds DN hostage for $$$ iv. TM claim requires commercial use related to goods/services – preventing users from getting to PETA’s goods/services and directing users to goods/services considered enough here

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v. Parody defense fails because DN and site’s content not simultaneous (analysis limited to DN itself) b. Bosley Medical v. Kremer (hair-plug gripe site; no commercial use needed to bring successful ACPA claim) i. Kremer mad about hair plugs – registers bosleymedical.com ii. Defendant gets no financial gain from site, no links to competitors, no attempt to sell DN to Bosley, no potential for confusing consumers iii. However, ACPA has no commercial use requirements, so Bosley wins on ACPA claim; fails on TM claim h. ICANN (Internet Corporation for Assigned Names and Numbers) i. Non-profit corporation that runs the plumbing of the Internet ii. U.S. Department of Commerce delegated root control to ICANN (there are 13 root servers) iii. Hybrid public/private structure iv. Powers 1. Hands out IP addresses 2. Decides which TLDs will be available 3. In charge of DNS policy and matching v. Everyone needs permission from ICANN for DNS and TLDs vi. Who calls shots at ICANN? 1. Lots of oversight by government vii. Policy goals of ICANN? 1. Privatization of DNS management/ TLD space 2. Consensus-driven decisions 3. U.S. government still controls the root for the whole Internet though viii. Case study: .xxx 1. Easy to block (gov’t) 2. It’s a $ goldmine (ICM) 3. Easy to block (Free Speech Coalition) 4. Legitimizes porn (social conservaties) 5. Technical and content regulation by ICANN Four (Interdependent) Modalities of Regulation (Lessig) – answers Q of how to regulate a. Law i. Slow to enact & slow to adopt ii. Jurisdiction-specific/jurisdiction limited iii. Puts people on notice iv. Checks and review v. Ex post enforcement vi. Arbitrary enforcement vii. Ex: ban on certain content or behavior b. Code/architecture

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i. Automatic regulation ii. Mutability varies iii. Ex: make people identify themselves; filter content; block content c. Market i. May enhance choice ii. Allows Wal-Marts of world to grow iii. Sacrificing free-flow of information iv. Ex: increase costs of access; tax certain content d. Social Norms i. Distributed enforcement ii. Hard to alter iii. Ex: censor; use speech to criticize or drown others out; make certain content/ behavior seem shame-worthy or uncool Who to regulate? a. Zittrain’s pressure points and Lessig’s dot b. Examples of pressure points i. Author/ content provider ii. Content provider’s host iii. Content provider’s ISP (ex: Time Warner; BLS) iv. Network provider (ex: AT&T) v. Destination ISP (blocking programs) vi. Destination host (ex: Napster) vii. Reader/user Jurisdictional Issues – where to regulate? a. Civil Procedure Redux i. Personal jurisdiction (minimum contacts – Int’l. Shoe) 1. General 2. Specific ii. Subject matter jurisdiction b. Personal Jurisdiction and the Internet i. Interactivity Test (Zippo applied in Gator.com v. LL Bean) 1. Brochure-ware (passive)  e-commerce (active) 2. Two options for personal jurisdiction a. General – substantial/ systematic and continuous contacts with forum state i. Lawsuit can be unrelated to contacts with state ii. Test = purposeful availment iii. On Internet, purposeful availment = whether website is tailored to transact business in location (interactivity test) b. Specific – cause of action arises out of conduct in state 3. Need notice and reasonableness under the Constitution ii. Knowing Effects Test (Calder v. Jones) 1. Effects of conduct felt in forum state 2. Circulated there, mentions state, and more iii. Targeting Test (Toys R Us) – 3d Cir

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1. Commercial activity level of site doesn’t really matter; just matters whether site targeted at forum state 2. For personal jurisdiction, interactivity not enough, need targeting a. Intentional transactions with forum state residents b. Multiple business trips to state c. Communications within state d. Contracts e. Ads in local newspapers 3. Toys R Us entitled to jurisdictional discovery with these contacts of defendant at least iv. Purposive Activity Test (GMAC) – 4th Cir 1. Emphasizes purposive activity over interactivity 2. Activity/ site must be sufficiently directed at forum state 3. In GMAC, DN registrar located in Virginia, but not enough purposive activity to VA for personal jurisdiction there; under savings clause, is enough for jurisdiction in US generally v. Illustration – Nestle Hot Pockets vs. Pizza Pockets 1. Nestle = PA corp; PPB = Ohio 2. Pocket = Ohio corp 3. Pocket has website with “How to Buy” link a. Has map – highlights Colorado – clicking CO brings up contact info of local distributor b. Can place phone/email orders c. Site doesn’t generate any CO sales; distributor doesn’t even know 4. N sues Pocket in CO for TM infringement 5. Jurisdiction considerations a. Is site directed at CO? b. Interactivity high or low? (e-commerce or just passive brochure?) c. Business contacts in CO? d. Effects test? 6. Ct finds jurisdiction is proper here a. Marketing is the foul, not the sale b. Specific jurisdiction c. International Jurisdiction Issues i. Do websites have to follow rules of countries/country in which it does business? ii. Yahoo! Nazi paraphernalia 1. Yahoo! permits sale of Nazi artifacts to be sold in its auctions online, which is a violation of French law 2. In France, where harm occurs = where jurisdiction is proper 3. French group gets judgment requiring Yahoo! to filter site that is shown in France

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4. Yahoo! sues to get declaratory judgment against enforcement of foreign judgment – case ultimately thrown out, but, jurisdiction in Cali originally allowed 5. Why does court have jurisdiction over two French student groups? a. B/c they served Yahoo! originally in Cali b. Sent cease and desist to Yahoo! in Cali c. Served TGI order on Yahoo! iii. Australia – Dow Jones v. Gutrick 1. In Australia, where harm occurs = where tort occurs 2. Defendant publishes article criticizing Gutrick, an Australian 3. 5 print copies of piece in Australia total 4. However, 1700 Australian subscribers online (out of 550,000 total) 5. Since harm in Australia, jurisdiction is proper there d. Enforcement Issues i. Can get personal jurisdiction and even get judgments, but enforcing those judgments is another story ii. Sealand illustration 1. Server on island in North Sea (kind of like putting server on moon) 2. Even if UK can show that it’s on their territory, and gets judgment, how would they enforce it? 3. Pressure points – a. Go after dependencies (upstream bandwidth, etc.) b. Go after $ support (banks, etc.) c. Sovereignty means little without commercial support CONTENT PROBLEMS I. What to regulate? II. Pornography/Obscenity a. Concerns about pornography i. Harmful to minors ii. Against normative values/ morals iii. Objectifies women, leads to commodification of sex, etc. b. Obscenity i. Miller (S.Ct. says obscene speech may be banned) 1. 3-part test for obscenity a. Under contemporary community standards, work as whole appeals to prurient interest i. Which community? 9th Cir says National, 11th Cir says where distributed b. Depicts or describes sex in offensive way c. As a whole, work lacks literary, artistic, political, or social value (on national standard) ii. Possession in the home is ok; distribution outside of home is not (Stanley v. Georgia) c. CDA §223 and Reno v. ACLU i. CDA §223 tried to regulate porn

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1. Banned making of/ transmission of indecent materials over the Internet with knowledge that material was being sent to a minor 2. Creators, ISPs, hosts, all on the hook 3. Criminalized using ICS to send patently offensive materials to minors 4. Defenses: good faith effort to restrict access by minors, restrict access by requiring credit cards, etc. ii. Reno v. ACLU (§223 unconstitutional) 1. “indecent” and “patently offensive” = too broad and vague 2. Content-based regulation of speech gets strict scrutiny, and §223 doesn’t pass narrow tailoring prong d. Children’s Online Protection Act (“COPA”) version 1 i. Criminalized knowing posting for commercial purposes content that’s harmful to minors ii. Affirmative defenses – age verification in place iii. COPA fails as well – there are less restrictive alternatives; up to parents to buy filtering software e. Record-Keeping Requirements (18 U.S.C. §2257) i. Direct legal regulation of porn largely fails and is foreclosed, with the exception of this record-keeping requirement, and PROTECT ACT (see below) ii. Under §2257, porn creators must keep records about identities of actual humans engaging in actual sexually explicit conduct iii. This law is all about tracking/cost increase measures (market regulation) f. Child porn and the PROTECT ACT (18 U.S.C. §1466(A)) i. CPPA found to be over-broad in Ashcroft v. Free Speech Coalition ii. PROTECT ACT prohibits visual depiction of minor engaging in sexually explicit conduct that is obscene iii. Minor depicted need not actually exist (Dwight Whorley’s anime cartoons covered by this law) g. Illustration – Zack and Miri i. Make sure performers of age ii. Keep in line with §2257 record-keeping requirements iii. Obscenity risk (need some SLAPP value to avoid risk) Spam a. What is spam? i. Unsolicited, large-scale/ mass-distribution of commercial subject/ speech ii. Operating at application layer iii. It’s a consequence of email’s architecture – inexpensive and cost borne by recipients b. Common-law regulation i. Conversion ii. Trespass to chattels (Compuserve v. Cyber Promotions) 1. Is there implied consent to send things to Compuserve subscribers? iii. Breach of contract iv. Trademark

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c. State spam laws – (now mostly pre-empted by CAN-SPAM) i. Email subject must start with “ADV” or “Advertisement” ii. Problem = inconsistent; marketers object iii. Essentially, now an opt-out system, meaning marketers can send mail until recipient opts out d. CAN-SPAM i. Federal anti-SPAM statute – preempts most state statutes ii. This law prohibits: 1. Falsifying headers, addresses, accounts etc. 2. Relaying 3. Harvesting iii. This law requires: 1. Working opt-out link 2. Labeling of sexual content iv. Enforcement 1. FTC is primary enforcer 2. ISP may sue for own damages 3. No private cause of action v. Jurisdiction problems when servers are off-shore vi. Illustrations 1. Mass “Bambauer for king” emails with false return address and headers a. Ok because it’s not commercial speech 2. Set up following email accounts: fake*at*hotmail.com, v1agr*at*hotmail.com, freeoxycontin*at*hotmail.com, 419*at*hotmail.com a. Less than five accounts is ok 3. Mass emails advertising new goats*dot*com business, and email has subject line: “You may already be a winner!” a. Unless there’s actually a sweepstakes, looks like misleading subject line and a violation of CAN-SPAM 4. Consumer opts out; sender keeps sending messages for next week a. Ok; sender has 10-day grace period to stop 5. Goats*dot*com messages list phone number of sender, but not address a. Must include physical address IP Infringement a. Copyright i. Copyright primer 1. Copyright = exclusive entitlement over new work of expression a. Must be fixed in tangible medium 2. 17 U.S.C. §106 – Copyright Rights a. Reproduction b. Derivative works c. Distribution d. Public performance or display

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e. Digital audio transmission 3. Rights limited by exceptions/ defenses for socially worthwhile uses a. Ex: fair use (4-factor test) i. Purpose/character of use (commercial?) ii. Nature of work (creative or not?) iii. Amount and substance used iv. Effect on market b. Kelly v. Arriba Soft (search engine thumbnails not infringing) i. Search engine indexes images from Kelly’s website – low-res thumbnails show up in search ii. Kelly brings direct infringement claim against search engine iii. Ct says use of photos is fair use – no direct infringement 1. Com...