Cyberlaw Outline - PJohnson - LAW_ COMPUTERS AND THE INTERNET

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Cyberlaw Outline - PJohnson - LAW_ COMPUTERS AND THE INTERNET Powered By Docstoc
Notes: national and state borders are blurred b/c of the technology. The question is how do
traditional legal concepts survive in this new medium?

    1. Types:
          a. Personal jurisdiction: the power of a court to adjudicate a particular defendant
              so that the judgments of that would be enforceable and recognized elsewhere.
          b. General jurisdiction: a defendant has had continuous or systematic doings with
              the state so hailing him into court is legitimate.
          c. Specific jurisdiction: some kind of minimum contacts with the state and some
              kind of cause of action that arises out of those contacts, so hailing him into
              that state seems fair and reasonable.
    2. Theories of jurisdiction:
          a. Everyplace theory: Website reaches anywhere in the world so anywhere
              where it‟s visible, there is jurisdiction.
          b. No place theory: actions that occur in the Internet occur no place and there
              should be allowed to evolve a cyberspace court that would adjudicate disputes
              in cyberspace.
          c. Whatever activity that takes place on a website, takes place on the server (the
              originating server).
    3. Test:
          a. Minimum contacts: fair for the person to be hailed in a forum state.
                   i. Whether the defendant purposefully established contacts with the
                      forum state.
          b. The claim asserted by the defendant must arise out of those contacts.
          c. Exercise of jurisdiction must be reasonable.
                   i. Reasonable if it does not offend traditional notions of fair play and
                      substantial justice.
    4. Zippo sliding scale: likelihood that PJ can be constitutionally exercised is directly
       proportionate to the nature and quality of commercial activity that an entity conducts
       over the Internet.
          a. Is it passive? Is it an interactive?
          b. Number and quality of the contacts?
    5. The Zippo Spectrum:
          a. (Integral) At one end, there is the case where a defendant clearly does
              commerce over the Internet. Defendant enters into contracts with residents of
              a foreign jurisdiction that involve the knowing and repeated transmissions of
              computer files over the Internet – PJ is proper.
          b. (Passive) At the other end, where a defendant has simply posted information
              on an Internet web site which is accessible to users in foreign jurisdictions.
         Passive websites that do little more than make information available to those
         who are interested in it. – PJ not proper.
      c. (Interactive) Middle ground are interactive websites where a user can interact
         with the host computer.
              i. The exercise of jurisdiction is determined by examining the level of
                 interactivity and commercial nature of the exchange of information
                 that occurs on the website.
             ii. In order to be fortuitous or coincidental, the company cannot have any
                 subscribers in the forum state and communications regarding the
                 company must come from an outsider.
6. Purposeful Availment: WEB PAGES
      a. Bensusan Restaurant Corp. v. King: BLUE NOTE CASE
              i. Issue: whether the creation of a web site, which exists either in MO or
                 in cyberspace, is an offer to sell the product in NY.
             ii. Held: no personal jurisdiction.
                     1. PJ: the mere fact that a person can gain information on the
                         allegedly infringing product is not the equivalent of a person
                         advertising, selling or making an effort to target its product in
                         NY. No allegation or proof that any infringing goods were
                         shipped into NY or that any other infringing activity directed at
                         NY or caused by King to occur there.
                             a. Substantial revenue: must derive substantial revenue
                                required from ISC, not mere participation.
                             b. Foreseeability: defendant expects or should reasonably
                                expect the act to have consequences in that state. D must
                                make a discernable effort to serve, directly or indirectly,
                                a market in the forum state.
                             c. Significant economic injury: only indirect financial loss
                                resulting from the fact that the injured person resides in
                     2. Purposeful Availment: no benefits derived from NY.
                             a. Stream of commerce, but w/o more, is not purposefully
                                directing toward the forum state.
                     3. Continuous and systematic business: D did not actively seek out
                         or encourage NYers to enter the site.
      b. Zippo Manufacturing Co. v. Zippo Dot Com, Inc.
              i. ZM is in PA, ZDC in CA. ZDC owns website with three levels of
                 membership: Free, Original, and Super (payment over Internet or
             ii. Held: personal jurisdiction proper.
                      1. Minimum contacts: ZDC has done more than create and
                          interactive web site through which it exchanges information
                          with PA residents in hopes of using that information for
                          commercial gain later.
                              a. Litigation arose out of contacts.
                              b. Purposeful availment: ZDC has done more than advertise
                                  on the internet: ZDC has sold passwords and worked to
                                  furnish its services in PA; entered into 7 contracts with
                                  ISPs to furnish service to customers in PA.
                              c. Continuous and systematic activity: when a defendant
                                  makes a conscious choice to conduct business with the
                                  residents of a state, it has clear notice that it is subject to
                                  suit there. Even a single contact is sufficient, but focus is
                                  always on the nature and quality of the contacts; not the
7. Electronic transactions:
      a. Compuserve Inc. v. Patterson
               i. Defendant (TX) was a customer of plaintiff, an Ohio-based Internet
                  service provider. Defendant marketed his product over Internet
                  through plaintiff's company. D alleges infringement and P sues for
                  declaratory relief in OH.
              ii. Held: PJ proper.
                      1. Traditional notions of fair play and substantial justice: D has
                          knowingly made an effort to market a product in other states
                          with CompuServe as his distribution center.
                      2. Purposeful availment: Personal jurisdiction is proper where a
                          nonresident defendant both (a) enters into a licensing contract
                          for the plaintiff to manufacture and sell equipment in the forum
                          state, and (b) contemplates the ongoing marketing of that
                          equipment in the forum state and elsewhere. Patterson entered
                          into a written contract and purposefully perpetuated the
                          relationship with repeated communications. Continuous
                          relationship with CompuServe.
             iii. Note: The mere signing of a contract does not equal personal
                  jurisdiction. Patterson though, deliberately entered into a written
                  contract and injected his software into the stream of commerce.
                  Person opting-in to the contract has to take affirmative steps to agree.
      b. Origins Natural Resources, Inc. v. Kotler
               i. Defendant was a California resident who had never lived or done
                  business in New Mexico. Defendant corporation sold clothing over the
                   internet and plaintiff purchased an item over the internet. Plaintiff
                   contended that the purchase was sufficient to satisfy PJ.
               ii. Held: PJ not proper.
                       1. Plaintiff has failed to carry its burden of establishing that D has
                          purposely availed himself to the benefits and protection of NM
                       2. Merely advertising from another forum into NM has not been
                          considered constitutionally sufficient.
              iii. Note: One article is not enough.
8. Presence
      a. Amberson Holdings LLC v. Westside Story Newspaper
              i. Defendants' only tie to New Jersey under the traditional analysis was a
                 contract, which was not substantial enough to find minimum contacts.
                 Plaintiffs argued that defendants' use of a New Jersey server added
                 credence to a finding of minimum contacts.
             ii. Held: PJ not proper.
                      1. D has maintained a contractual relationship with NJ for hosting
                         services, but defendants don‟t manufacture products, direct
                         sales, solicit...W/o any additional contacts no PJ.
                      2. Unreasonable for defendant to be hailed into NJ federal court
                         simply b/c it is utilizing a NJ server.
            iii. Note: just b/c you are utilizing a server and have a contract, w/o more,
                 no PJ.
      b. United States v. Thomas
              i. D operating a BBS from CA. Agent received a complaint, sent in an
                 application with $55 and defendant authorized him to log-on.
             ii. Held: PJ proper.
                      1. Under the violation, the Government does not have to prove
                         that defendants had specific knowledge of the destination.
      c. Cable News Network LP v.
              i. Chinese company registered the domain name with its
                 domain name registrar in VA in good faith. D asserts that its audience
                 is in China and does not advertise outside of China and transacts no
                 business in the US.
             ii. Held: PJ proper.
                      1. The owner of a mark may maintain an in rem action against an
                         infringing domain name if the action is brought in the
                         jurisdiction where the registrar is located and if no in personam.
                      2. In an Anticybersquatting Consumer Protection Act in rem
                         action, it is not necessary that the allegedly infringing registrant
                              have minimum contacts with the forum; it is enough that the
                              registry is located in the forum.
                          3. 15 U.S.C.S. § 1125(d)(2)(A)(ii) makes clear that in rem actions
                              may be brought under the Anticybersquatting Consumer
                              Protection Act only if in personam jurisdiction over the domain
                              name registrant does not exist.
                  iii. Note: this case deals with in rem only: when owner cannot obtain in
                       personam jurisdiction or in due diligence, could not find someone

    1. Anti-Cybersquatting Consumer Protection Act of 1998 (ACCPA): a civil cause of
       action for trademark infringement on domain names which are protected.
    2. Test to see if a statute or policy violates the Dormant Commerce Clause:
           a. Look at the text and the policy: does it involve interstate AND
           b. Commerce AND...
           c. Does the statute overtly discriminate out of state goods?
                    i. If YES, then stop (unconstitutional).
                   ii. If NO, then
                            1. If it is an indirect regulation, balance in-state benefits vs.
                               burden on interstate commerce OR
                            2. Is this an area of commerce that demands constant national
           d. Question: Is the Internet national and does it need national protection, or is
               for the states?
    3. State Regulation of Speech
           a. American Libraries Association v. Pataki
                    i. NY made it illegal to distribute material “harmful to minors” over the
                       Internet. Applies to all Internet activity.
                   ii. Held: unconstitutional
                            1. Interstate? YES: it‟s global (packet switching and packets are
                               going to move throughout the state AND caching).
                            2. Commerce (does not mean is it for profit)? YES b/c the Internet
                               represents an instrument of interstate commerce -> the NY Act
                               is closely concerned w/interstate commerce.
                            3. Overt discrimination? NO, it does not.
                                    a. Does this regulate acts beyond NY borders? Benefits vs
                                         Burdens? YES, it exports its state‟s policies -> extreme
                                         burden on ISC.
                                    b. Area of commerce demand national treatment? YES,
                                         effective regulation will require national cooperation. If
                                         states regulate, conflicting obligations would arise.
   4. Unsolicited Commercial E-mail
         a. State of WA v. Heckel
                 i. Heckel (OR) began sending unsolicited commercial e-mail (UCE), or
                    "spam," over the Internet. He marketed a book on how to profit from
                    the Internet, sending between 100,000 and 1,000,000 UCE messages per
                    week. WA made it illegal to use false or misleading information in the
                    subject line of UCE messages, and through other misrepresentations.
                ii. Held: constitutional
                        1. Interstate? YES
                        2. Commerce? YES.
                        3. Overt discrimination? NO, Act applies evenhandedly to in-state
                             and out-of-state spammers.
                                a. Benefits vs Burdens? Local Benefits win. The Act
                                    protects the interests of ISPs (more investment in
                                    computer equipment, higher operational costs), actual
                                    owners of forged domain names (economic harm of
                                    registered owners shutting down sites due to forged e-
                                    mail addresses), and e-mail users (not able to respond,
                                    causes frustration, wastes time and money). Only
                                    burden is truthfulness.
                                b. Demand national treatment? Well, the inquiry under the
                                    dormant CC is not whether the states have enacted
                                    different anti-spam statutes, but whether those
                                    differences create compliance costs that are clearly
                                    excessive in relation to the putative benefits. The Act
                                    only addresses the conduct of spammers targeting WA
         b. Distinguish from Pataki:
                 i. Only applies to e-mail, not the entire Internet. So people outside of the
                    state that wanted to put something on the Internet could be in
                    violation of NY law b/c someone could view in NY. E-mail is different.
                ii. Does not applies to communications that incidentally reach WA state
                    (as in, those that are merely routed).

Nature of the medium itself is at issue and will decide the level of scrutiny. You still need to
go through the analysis: What is the compelling government interest? What are the means
     1. Content Regulation
           a. Reno v. ACLU -> CDA
              i. At issue is the constitutionality of two statutory provisions enacted to
                 protect minors from “indecent” and “patently offensive”
                 communications on the Internet. Criminal penalties.
             ii. Held: CDA unconstitutional.
                     1. Application of strict scrutiny.
                     2. Note: it would not be strict scrutiny if there was a special
                         justification such as:
                             a. A history of extensive Government regulation of the
                                 broadcast medium – neither before or after enactment of
                                 CDA has the Internet ever been subject to gov‟t
                                 supervision or regulation.
                             b. Scarcity of available frequencies at its inception –
                                 Internet NOT A SCARCE EXPRESSIVE COMMODITY
                             c. Invasive nature – communications over the Internet
                                 NOT INVASIVE.
                     3. Look for a compelling government interest:
                             a. Of course with children and pornography.
                     4. The community standards criteria: any communication to a
                         nationwide audience will be judged by the standards of the
                         community most likely to be offended by the message.
                     5. Look at the less restrictive means analysis: providing some
                         tolerance for parental choice, making exceptions for messages
                         with artistic or educational value. But is it narrowly tailored?
2. Content levels of speech:
      a. Strict scrutiny: statute must reflect a compelling government interest and least
         restrictive means to achieve that interest; narrowly tailored.
              i. No statute survives strict scrutiny.
      b. Intermediate scrutiny: statutes affecting historically discriminated against
         groups will be looked at with intermediate scrutiny; government interest only
         needs to be substantial or important; the means must be narrowly tailored to
         accomplish a purpose.
      c. Relaxed scrutiny: statute must reflect legitimate government interest and the
         means must be rationally related.
      d. Broadcast scrutiny: substantial? Narrowly tailored? Rationally related?
      e. Note: default level of scrutiny is strict scrutiny; Content-Based is always strict
3. Obscenity v. Indecency:
      a. Obscene material:
              i. Depicts or describes, in terms patently offensive as measured by
                 contemporary community standards, sexual or excretory activities or
                 organs; AND
              ii. Taken as a whole, appeals to the “prurient interest” (designed to be
                  titillating); AND
             iii. Taken as a whole, lacks serious literary, artistic, political or scientific
       b. Indecent material:
               i. Depicts or describes, in terms patently offensive as measured by
                  contemporary community standards, sexual or excretory activities or
4. Filtering
       a. Mainstream Loudoun v. Bd. Of Trustees of the Loudoun Co. Library
               i. Plaintiffs, library patrons, claimed that a library policy that used
                  Internet site blocking software to block child pornography and obscene
                  material imposed an unconstitutional restriction on plaintiffs' U.S.
                  Const. amend. I rights. At issue is whether a public library may enact a
                  policy prohibiting the access of library patrons to certain content-based
                  categories of Internet publications.
              ii. Held: defendant library enjoined from prohibiting access to certain
                  content-based categories of Internet publications because that policy
                  was unconstitutional under a strict scrutiny standard of review and was
                  an improper prior restraint on speech.
                       1. Notes: Content-based limitation on speech will be upheld only
                           where the state demonstrates that the limitation is necessary to
                           serve a compelling state interest and that it is narrowly drawn to
                           achieve that end.
                       2. Test:
                               a. Whether the interests asserted by the state are
                               b. Whether the limitation is necessary to further these
                                   interests AND
                               c. Whether the limitation is narrowly drawn to achieve
                                   those interests.
                       3. Compelling interest: minimizing access to illegal pornography
                           and avoiding the creation of a sexually hostile environment are
                           compelling interests.
                       4. Necessity of policy to further interests: D must demonstrate that
                           the Policy is necessary to further that interest. D must
                           demonstrate that in the absence of the Policy, a sexually hostile
                           environment might exist and/or there would be a problem
                           w/individuals accessing child pornography or obscenity or
                           minors accessing materials that are illegal as to them. Here,
                           barely any evidence.
              5. Narrowly tailored: there are other means available (segregation
                 of terminals, casual monitoring).
                     a. Whether less restrictive means are available.
                     b. Whether the Policy is overinclusive – it limits the access
                        of all patrons.
                     c. Whether the filtering software is the least restrictive
                        filtering software available.
b. ACLU v. Ashcroft
       i. COPA (CDA Lite): Child Online Protection Act provided for civil and
          criminal penalties for anyone who knowingly and with knowledge of
          the character of the material, in interstate or foreign commerce by
          means of the WWW, makes any communication for commercial
          purposes that is available to any minor and that includes any material
          that is harmful to minors. Harmful to minors is defined.
      ii. Elements:
              1. With respect to minors, it panders to the minor‟s prurient
              2. Depicts or describes something patently offensive with respect
                  to minors.
              3. Taken as a whole, lacks serious literary, artistic, political, or
                  scientific value for minors.
     iii. Strict Scrutiny:
              1. Compelling interest: YES.
              2. Narrowly Tailored:
                      a. Material Harmful to Minors – although the statute itself
                          says „taken as a whole‟, the court here says that the
                          statute applies to each individual image; so „taken as a
                          whole‟ really has no meaning.
                              i. Is the definition of minors, really clear?
                                  Something harmful to a 5-year old might not be
                                  harmful to a 16-year old. But the site must be
                                  tailored to a 5-year old.
                      b. Commercial Purposes: it applies to any commercial site
                          including one that has advertising.
                      c. Affirmative Defenses.
              3. Least Restrictive Means: in findings of fact the DC concluded
                  that blocking or filtering technology may be used to block Web
                  sites and other content on the Internet inappropriate to minors.
     iv. Lower court: Unconstitutional: using community standards as a
          standard for a national medium, would allow the most conservative
          community the most weight as to define.
                 v. SC: community standards alone is not enough.
                vi. This court: Community standards aside, this statute is not narrowly
                     tailored to serve the government interest.
   5. Alternatives to Filtering
         a. United States v. American Library Association
                  i. Federal assistance is given to libraries. Through e-rate (established
                     through Telecommunications Act of 1996) to allow discounts for
                     Internet access for libraries AND direct grants to library administrative
                     agencies. Now, the government wants to put a condition on the
                     assistance: put on a filter if you want to use it.
                 ii. CIPA: Children‟s Internet Protection Act – filters needed to protect
                     minors from material harmful to minors.
                iii. Congress can impose conditions on grants, but not unconstitutional
                iv. The Court says that libraries make decisions on whatever they want to
                         1. The Internet is a way of getting access to material.
                         2. Congress can decide what libraries can acquire.
                         3. Condition is legal (similar to we‟ll give you a grant as long as
                             you allow wheelchair access to disabled citizens).
                         4. Libraries already filter their materials.

Cable v. TV: functionally the same, but the regulations are different. A cable modem
operator is going to have an easier time holding a monopoly on his cable than a telephone
operator will have on his telephone line.
    1. Precedent
           a. Miami Herald Publishing Company v. Tornillo
                    i. The statute provided that a political candidate had the right to demand
                       that a newspaper print any reply of the candidate to criticisms by the
                   ii. Held: statute unconstitutional.
                          1. Two problems:
                                  a. It will take up space.
                                  b. (Chilling Effect) If a newspaper has an obligation to print
                                      opposing viewpoints, what about the newspaper‟s
                                          i. Less likely to enter controversial fields if you
                                              know you‟re going to have to print opposing
              2. This is a content-based regulation; the content triggers the
              3. The newspaper is a form of expression; editorial discretion.
              4. Fails under 1st Amendment b/c of its intrusion into the function
                 of editors:
                     a. A newspaper is more than a passive receptacle or conduit
                         for news, comment, and advertising. The choice of
                         material to go into a newspaper, and the decisions made
                         as to limitations on the size and content of the paper, and
                         treatment of public issues and public officials constitute
                         the exercise of editorial control and judgment.
     iii. Turner Broadcasting System, Inc. v. FCC
             1. Case involves the constitutionality of the must-carry provisions
                which require cable operators to carry the signals of a specified
                number of local broadcast television stations.
             2. Intermediate level of scrutiny b/c the Court finds that the
                regulation is content-neutral.
             3. Government must demonstrate that the recited harms are real,
                not merely conjectural, and that the regulation will in fact
                alleviate these harms in a direct and material way.
b. Open Access
       i. Comcast Cablevision of Broward Co. Inc. v. Broward Co.
             1. Defendant county adopted an ordinance requiring a cable
                television system that offers its subscribers high-speed Internet
                service to allow competitors equal access to its system.
             2. Court applies strict scrutiny and saying that it fails strict
                scrutiny, it then goes to a content-neutral analysis.
             3. The harm the ordinance is purported to address does not exist:
                Cable possesses no monopoly power w/respect to Internet
                access. Most Americans obtain Internet access through the
                telephone. Local telephone companies provide dial up Internet
                access to many more people than cable companies.
                    a. Fails content-neutral scrutiny as well.
      ii. AT&T Corp. v. City of Portland
             1. This court upheld an open access requirement to preserve
             2. City of Portland & Comcast cases disagree on two things: (1)
                whether the "open access" requirement is a regulation of speech,
                and (2) if it is, whether the requirement passes the O'Brien
                content-neutral 1st amendment analysis. See pp. 221-24. The
                federal law that pre-empts the City of Portland case is the
                             Communications Act, 47 USC 541(b)(3), which forbids a
                             franchising authority from regulating the provision of
                             "telecommunications service by a cable operator." The 9th
                             circuit found that offering cable modem service is
                             "telecommunications service" rather than "cable service."

§230 removes tort liability from ISP for third party torts.
   1. ISP Liability for Defamation:
          a. Cubby v. CompuServe, 776 F.Supp. 135 (1991): CompuServe did not exercise
              the requisite control to be deemed a publisher of information posted to its
              bulletin boards and third-party databases.
                   i. Is CompuServe a distributor or publisher of materials?
                  ii. Court: just a distributor (similar to a newsstand or book store).
                 iii. No publisher liability for ISP.
                 iv. Cubby has to serve the person that libeled him.
          b. Stratton Oakmont, Inc. v. Prodigy Servs. Co., 23 Media L. Rep (BNA) 1794
              (1995): Prodigy had exercised sufficient editorial control to be deemed a
              publisher based on its use of automatic screening software and its holding itself
              out as exercising editorial functions.
                   i. Court: Prodigy holds itself out as exercising editorial controller, thus
                      it‟s a publisher.
                      THAT IT FAILS TO POLICE.
   2. Should the ISP‟s police their own boards? NO, b/c if you do and something gets
       through, you‟re liable.
   3. CDA Safe Harbor: 47 USCA § 230 (c) Protection for “good samaritan” blocking
          a. Elements:
                   i. ISP or user is not the publisher of information provided by other
                      content provider.
                  ii. ISP or user is not liable for good-faith action to restrict access to
                      objectionable material.
                 iii. Inconsistent state law is pre-empted.
          b. This law does not affect intellectual party law.
          c. No state law cause of action that conflicts with this survives.
          d. Congress overrules Stratton Oakmont.
              IMMUNE TO LIABILITY (Drudge is as far as it will go).
   4. Liability after the CDA
       a. Zeran v. AOL
              i. Victim of a hoax. His name and telephone number were posted for the
                 purpose of purchasing shirts. He requested AOL remove postings.
                 AOL kept screwing it up. Zeran attempts to plead his claims as ones of
                 negligence (negligent distribution), although they are really
                 indistinguishable from a defamation action.
             ii. Held: CDA safe harbor bars his claims.
                      1. Policy reasons for §230:
                              a. Allowing a cause of action against a ISP for defamatory
                                 or other tortuous conduct by third parties would have a
                                 chilling effect; impossible to screen postings.
                              b. To encourage policing without incurring liability; have
                                 the ISP make an effort to police their own networks.
       b. Blumenthal v. Drudge (lots of involvement sans liability)
              i. It is alleged that this is a joint work between Drudge and AOL. Under
                 the licensing agreement, AOL may remove content that AOL
                 reasonably determines to violate AOL‟s then standard terms of service.
             ii. Held: AOL not a publisher; although AOL has the right to edit, there is
                 no evidence that it did so in this case; AOL did not act as publisher and
                 distributor; just b/c Drudge is paid does not make AOL the originator of
                 the material.
                      1. Congress has conferred immunity from tort liability as an
                          incentive to Internet service providers to self-police the Internet
                          for obscenity and other offensive material, even where the
                          policing is unsuccessful or not even attempted.
                      2. Drudge wrote the essential content, but AOL did not edit or
5. CDA Safe Harbor Cases: Non-defamation Claims:
       a. Aquino v. Electriciti Inc. (1997): emotional distress. Exempt b/c of CDA
       b. Doe v. America Online (1998): Obscenity.
       c. Aware Woman Center for Choice v. CompuServe (1999): Right to privacy;
          Court: no cause of action.
6. International Law
       a. Licra and UEJF v. Yahoo! Inc. (2000)
              i. Injunction issued ordering technical measures to make it impossible for
                 French Internet users to access website. Court ordered $13,000 per day
                 fine if Yahoo did not meet a three-month deadline to install technical
             ii. Complaint: US Law immunizes ISP‟s such as Yahoo! from responsibility
                 and liability for the content of postings by third parties, as provided by
                 §230 of the CDA. If permitted to stand, the French judgment would
                  give foreign nationals a cause of action against US-based ISPs that US
                  citizens do not have.
             iii. Held: protected under 1st Amendment.
                      1. Decision: although France has the sovereign right to regulate
                          what speech is permissible in France, this Court may not
                          enforce a foreign order that violates protected speech in the US.
                              a. No decision on §230.
7. Finding John Doe
      a. Subpoena the ISP to get information on the John Does.
      b. ISP not immune from discovery.
      c. Out of state discovery allowed for information relevant to the case as per Fed.
         R. of Civ. Proc.
8. Defenses:
      a. ISP Respondents Can Raise:
               i. Lack of complete information as to John Doe‟s identity.
              ii. Procedurally defective or invalid subpoena – always check the rules!
             iii. Overbroad requests – explaining your request saves time and money.
      b. John Doe‟s Defenses:
               i. John Doe may be able to challenge the Court‟s jurisdiction over him
                  before discovery begins.
              ii. 1st Amendment Right to Anonymity.
             iii. Anti-SLAPP (Strategic Lawsuit Against Public Participation)
                  Legislation: the suit is its own reward by scaring John Doe.
                      1. Initial Showing by Defendant (in connection with a public
                      2. Burden Shifts to Plaintiff (to show probability of success).
      c. If John Doe objects:
               i. For motion to compel discovery of an anonymous defendant, some
                  courts require:
                      1. Effort to notify the anonymous party.
                      2. Set forth the defamatory statements.
                      3. Make prima facie case.
                      4. Balance right to anonymity vs. strength of plaintiff‟s case.
      d. Global Telemedia v. John Does 1-35
               i. Plaintiff was a publicly traded telecommunications company.
                  Defendants posted negative and allegedly libelous messages on an
                  internet bulletin board which were the subject of the complaint.
              ii. Held: defendant's postings were an exercise of their free speech in
                  connection with a public issue. Next, the court found that defendants'
                  statements were opinion. Even if the statements were actionable
                  statements of fact, plaintiffs could not show they were damaged.
   9. The Right to Remain Anonymous
         a. In re Subpoena Duces Tecum to AOL
                 i. A court should only order an ISP to provide information concerning
                    the identity of a subscriber when the court is satisfied by the pleadings
                    or evidence supplied to that court that the party requesting the
                    subpoena has a legitimate, good faith basis to contend that it may be
                    the victim of conduct actionable in the jurisdiction where suit was filed
                    and the subpoenaed identity information is centrally needed to advance
                    that claim.
         b. Doe v. Inc.
                 i. By subpoena, defendant sought to obtain the identity of 23 speakers
                    who participated anonymously on Internet message boards operated by
                    the internet service provider.
                ii. Test in considering whether a subpoena should issue:
                        1. The subpoena seeking the information was issued in good faith
                            and not for any improper purpose.
                        2. The information sought relates to a core claim or defense.
                        3. The identifying information is directly and materially relevant
                            to that claim or defense AND
                        4. Information sufficient to establish or to disprove that claim or
                            defense is unavailable from any other source.
               iii. Held: Defendant failed to demonstrate that the identity of the Internet
                    users was directly and materially relevant to a core defense in the
                    underlying securities litigation. Further, defendant failed to
                    demonstrate that the information it needed to establish its defense was
                    unavailable from any other source.

    1. Overview:
          a. Translation of DNS into IP.
          b. Top level domain: .edu, .com, .gov
          c. Secondary level domain: nyls, espn, nytimes.
          d. Words can be intellectual property.
          e. Network Solutions Incorporated = VeriSign.
                  i. Given a monopoly over some top level domain names.
                 ii. You could register any name you wanted and as many as you wanted.
               iii. Not until 6 months of nonpayment would NSI discontinue the name.
                iv. They depended on the individuals warranting that they could register
                     what they sought to register.
                 v. NSI‟s dispute resolution was only open if you had a federal trademark
                     registration; but trademarks are a matter of use at common law.
2. Two different forums for dispute resolution when someone registers a domain name
   that someone else wants (or holds a trademark in)
      a. Anti-Cybersquatting Consumer Protection Act: punish, enjoin or disallow a
          bad faith registration in a domain name confusingly similar to a famous
               i. Bad faith factors.
      b. ICANN (Uniform Dispute Resolution Process): very similar to ACCPA (part of
          the Lanham Act) but a more streamlined process; stripping of the domain
          name from the infringer.
               i. Bad faith factors.
      c. Choosing which resolution is a matter of tactics.
3. Domain names and Trademark Law
      a. Panavision Int‟l, LP v. Toeppen
               i. Toeppen owns the web site Toeppen offered to settle
                  the matter if Panavision would pay him $13,000 for the domain name.
                  After Panavision rejected that offer, Toepeen registered Panavision‟s
                  other trademark, and displayed the word „hello.‟
              ii. Commercial use? YES
                      1. His business is to register trademarks and profit from the sale; so
                          long as he held the Internet registrations, he curtailed
                          Panavision‟s exploitation of the value of its trademarks.
             iii. Dilution (b/c Panavision can still use other domain names)? YES
                      1. A significant purpose of a domain name is to identify the entity
                          that owns the web site; potential customers will be discouraged
                          if they cannot find its web page by going to but
                          have to wade through web sites.
             iv. Notes: Dilution applies to famous marks: taking a famous mark and
                  using it on dissimilar goods so that the selling power of the mark itself
                  is whittled away.
                      1. Ex. Kodak running shoes: no one would think that Kodak is
                          making running shoes; but by taking a famous mark and using it
                          on dissimilar goods, you are diluting the mark.
              v. Confusion: likely to cause confusion that the registrant of the mark
                  supports the defendant‟s mark.
             vi. „In commerce‟: Toeppen claims that he‟s not using this mark in
                  commerce; this Court does not find it necessary that someone actually
                  sell something; plus he‟s in the business of registering domain names
                  and selling them = in commerce.
            vii. Toeppen‟s argument: not trademark use, but just an address.
                      1. Court: significant reason for a domain address is to identify the
                          IP address and the entity.
b. Planned Parenthood Federation of America Inc. v. Bucci
        i. Bucci, an anti-abortionist, registered the domain name
  and welcomed the user with the words
           “Welcome to the PLANNED PARENTHOOD HOME PAGE!” Bucci
           put up the image of the book The Cost of Abortion with links to an
           anti-abortion book.
       ii. In Commerce:
               1. 2 reasons why the „in commerce‟ standard applies:
                       a. Defendant‟s actions affect plaintiff‟s ability to offer
                          plaintiff‟s services as health and information services; the
                          effect of those activities on plaintiff‟s interstate
                          commerce activities would place defendant within the
                          reach of the Lanham Act.
                       b. Internet users constitute a national audience who must
                          use interstate telephone lines to access defendant‟s web
                          site; the nature of the Internet indicates that establishing
                          a typical home page on the Internet for access to all users
                          would satisfy the „in commerce‟ requirement.
      iii. §1114: prohibits any person w/o consent of the registrant of the mark,
           from using the mark which is likely to cause confusion, mistake or
               1. Is defendant‟s use of plaintiff‟s mark properly viewed as in
                   connection with the distribution or advertising of goods or
                   service? Yes.
                       a. Defendant chose to place materials about the book to
                          plug his book; there is no personal profit requirement for
                       b. Defendant‟s home page is merely one portion of his
                          broader effort to educate Catholics about the anti-
                          abortion movement; defendant offers informational
                          services for use in convincing people that certain
                          activities are morally wrong; defendant‟s use of plaintiff‟s
                          mark is in connection with the distribution of services
                          b/c it is likely to prevent some users from reaching
                          plaintiff‟s own web site.
c. Lockheed Martin Corp. v. Network Solutions, Inc.
        i. Lockheed requested that NSI cancel the allegedly infringing
           registrations and cease registering domain name combinations with
           „skunk works.‟
            ii. NSI did nothing and Lockheed settled with the third parties, but NSI
                did not immediately cancel the registrations and later permitted a new
                registrant to register
           iii. Contributory infringement:
                    1. Occurs when the defendant either intentionally induces a third
                        party to infringe the plaintiff‟s mark or supplies a product to a
                        third party with actual or constructive knowledge that the
                        product is being used to infringe the service mark.
                    2. Lockheed must prove that NSI supplies a product to third parties
                        with actual or constructive knowledge that its product is beings
                        used to infringe Skunk Works.
                    3. Court: consider the extent of control exercised by the defendant
                        over the third party‟s means of infringement.
                             a. Service: NSI does not supply the domain-name
                                 combination; it only translates the domain-name
                                 combination to the registrant‟s IP address and routes the
                                 information or command to the corresponding computer.
                             b. Direct control and monitoring rule: NSI‟s rote translation
                                 services does not entail the kind of direct control and
                                 monitoring required to justify an extension of the
                                 supplies a product requirement.
     a. Anticybersquatting Consumer Protection Act of 1999: established a civil action
        for a person with a bad faith intent to profit from, or who registers, traffics in,
        or uses a domain name that:
             i. In the case of a mark that is distinctive at the time of registration of the
                domain name, is identical or confusingly similar to that mark.
            ii. In the case of a famous mark that is famous at the time of registration of
                the domain name, is identical or confusingly similar to or dilutive of
                that mark.
     b. A bad faith intent may not be found if the registrant believed and had
        reasonable grounds to believe that the use of the domain name was a fair use
        or otherwise lawful (nine factors defined on pg. 283).
     c. Levels:
             i. Generic terms (apples) are not eligible for trademark protection.
                    1. Some become not eligible for trademark protection (Kleenex,
            ii. Descriptive terms (red apples) are not eligible for trademark protection.
                    1. (Distinctive) Descriptive terms with secondary meaning (red
                        delicious apples, playboy) are eligible for trademark protection.
      iii. (Distinctive) Suggestive terms: (eve‟s apples) something that makes you
           think even if only a little.
      iv. (Distinctive) Arbitrary terms: (Apple Computers)
       v. (Distinctive) Fanciful: (Kodak, Exxon)
d. Distinctive terms give rise to a cause of action.
e. Cybersquatting: Use of a company trademark as the domain name of an
   unrelated domain name
        i. Gripe sites:
               1. Weapons: trademark infringement, dilution, ACCPA, UDRP
               2. When it is a legitimate gripe site, it is out of the trademark
                      a. No likelihood that the gripe site is endorsed by the
                            original company.
                      b. Company has a right to negative information.
                      c. Not commercial, not confusing.
                      d. Distinction between trademark use and other uses.
       ii. Uniform Dispute Resolution Policy: when registrars commit to ICANN,
           they submit to UDRP.
               1. Informal process, not binding in a court of law.
               2. Alternative dispute resolution process.
               3. All done on paper filings.
               4. Only relief is transfer of domain name.
               5. Proceedings are only a challenge and a response.
               6. If either side is dissatisfied with the result, it can go to federal
      iii. Strategic decision: balancing of interests
               1. ACCPA: Expensive but you get relief; more publicity; can enjoin
                  from future use
               2. UDRP: Quick, 70-80% of time trademark owner wins,
                  arbitrators are familiar and experienced.
f. Electronics Boutique Holdings Corp. v. Zuccarini
        i. Under the ACCPA, a person who registers, traffics in, or uses a domain
           name that is identical or confusingly similar to a distinctive or famous
           mark registered to someone else with a bad-faith intent to profit form
           that mark is subject to suit.
       ii. Identical or confusingly similar: The profitability of Zuccarini‟s
           enterprise is completely dependent on his ability to create and register
           domain names that are confusingly similar to famous names.
      iii. Bad-faith intent to profit: Zuccarini registered the domain misspellings
           to generate advertising revenue for himself.
                iv. Safe Harbor: Zuccarini would need to establish that he reasonably
                    believed that his use of the domain misspellings were fair and
                    lawful...but he decided not to participate.
          g. Bruce Springsteen v. Jeff Burgar and Bruce Springsteen Club
                i. Under paragraph 4 of the UDRP, the Complainant‟s burden is to prove:
                       1. Whether the domain name is identical or confusingly similar to
                           trade marks or service marks in which the Complainant has
                       2. The domain name owner has no rights or legitimate interests in
                           respect of the domain name.
                               a. Before any notice of the dispute, the Respondent had
                                   shown demonstrable preparations to use the domain
                                   name in connection with a bona fide offering of goods or
                               b. The Respondent has been commonly known by the
                                   domain name, even if he has acquired no trade mark or
                                   service mark rights.
                               c. The respondent is making a legitimate non-commercial
                                   fair use of the domain name, w/o intent for commercial
                                   gain to misleadingly divert customers or to tarnish the
                                   trade or service mark.
                       3. The domain name has been registered in bad faith:
                               a. Evidence that the Registrant obtained the domain name
                                   primarily for the purpose of selling, renting, or otherwise
                                   transferring it to the Complainant or to a competitor.
                               b. Registrant obtained the domain name in order to prevent
                                   the owner of the trade or service mark from reflecting
                                   that mark in a corresponding domain name, providing
                                   that there has been a pattern of such conduct.
                               c. Registrant has obtained the domain name primarily for
                                   the purpose of disrupting the business of a competitor.
                               d. By using the domain name, the Registrant has
                                   intentionally attempted to attract, for commercial gain,
                                   Internet users to his site by creating a likelihood of
                                   confusion with the Complainant‟s mark as to source,
                                   sponsorship, affiliation or endorsement of the site.

   1. Overview:
         a. Translation of DNS into IP.
         b. Top level domain: .edu, .com, .gov
          c. Secondary level domain: nyls, espn, nytimes.
          d. Words can be intellectual property.
          e. Network Solutions Incorporated = VeriSign.
                  i. Given a monopoly over some top level domain names.
                 ii. You could register any name you wanted and as many as you wanted.
               iii. Not until 6 months of nonpayment would NSI discontinue the name.
                iv. They depended on the individuals warranting that they could register
                     what they sought to register.
                 v. NSI‟s dispute resolution was only open if you had a federal trademark
                     registration; but trademarks are a matter of use at common law.
          f. Two issues:
                  i. Instant transmission
                 ii. Universal replicability (digital)

   1. Commercial area of law that deals with identifying the source of goods and services.
   2. Internet causes problems:
          a. Domain names: gripe sites; to what extent is it protected free speech and
             trademark infringement.
          b. Metatags: the imbedding of someone else‟s trademark in your site to divert
             traffic to your site.
          c. Search engines and keyword buys can influence a search engine.
   3. Trademark:
          a. Trademark Dilution Act (1996): use of a mark on dissimilar good which dilutes
             the value of the mark; dilution law actually protects the mark.
                   i. Infringement = likelihood of confusion.
                  ii. Dilution: trademark is used in a way that diminishes its selling power
                      (jaguar watches)
                          1. Tarnishment: trademark used for commercial purposes that puts
                              it in an unfavorable light for a competitive advantage (Snuggle
                              v. 3DO)
   4. Gripe sites
          a. Bally Total Fitness Holding Corp. v. Faber: Dilution
                   i. Bally is suing Faber based on his use of Bally‟s marks in a web site he
                      designed, “Bally sucks.”
                  ii. Sleekcraft eight factor test: Bally fails this test.
                          1. Strength of the mark: Bally; where does the trademark sit on the
                                   a. Bally has strong marks.
2. Proximity of the goods: Faber; whether the goods are related?
   One outfit using a tiger to sell cereal and a tiger used to sell
       a. Bally uses the Internet to generate revenue and
           disseminate info.
       b. Faber uses the site to criticize Bally and provide a forum
           for expressing opinions.
       c. Court: no competition; although both are used for
           information about Bally, the sites have fundamentally
           different purposes.
3. Similarity of the marks: Faber; do the tigers look alike.
       a. “Sucks” implies criticism and Bally‟s mark cannot be seen
           without seeing the word „sucks.‟
4. Evidence of actual confusion: Faber; the plaintiff receives letters
   stating they were look for plaintiffs and found someone else OR
   through surveys.
       a. Bally: confusion is obvious b/c of the strength of the
       b. Court: a reasonably prudent user would not mistake
           Faber‟s site for Bally‟s.
5. Marketing channels used: Faber; are the goods being marketed
   in the same channels (department stores, on tv)
       a. Court: Bally has not shown that Faber uses all of the
           channels for marketing, but only one site.
       b. Bally‟s goods and Faber‟s goods are not related, therefore,
           the fact that marketing channels overlap is irrelevant.
6. Type of goods and the degree of care likely to be exercised by
   the purchaser: Faber; people will exercise more care on a high-
   ticket item.
       a. Bally: search engines might find Faber‟s site; thus the
           user may fail to continue searching.
       b. Court: Faber does not use Bally in his domain name.
       c. The user may want to find a site that criticizes Bally.
7. Defendant‟s intent in selecting the mark: Neutral; conscious
   intent to rip off the mark.
       a. Faber is exercising his right to publish critical
           commentary about Bally.
       b. Trademark rights are limited by 1st Amendment
                    8. Likelihood of expansion of the product lines: Faber; „bridging
                       the gap‟; tiger selling the gasoline likely to bridge the gap to
                           a. Bally has no intention of expanding into an anti-Bally
             iii. Remember, bad faith registration of domain name is under ACCPA.
5. Metatags:
     a. Brookfield Communications v. West Coast Ent. Corp.
               i. Moviebuff case.
              ii. Initial interest confusion:
                      1. West Coast improperly benefits from the goodwill that
                           Brookfield developed in its mark.
             iii. West Coast acted affirmatively in placing Brookfield‟s trademark in the
                  metatags of its site thereby creating initial interest confusion.
             iv. Defense: fair use of a trademark: you can use a trademark owner‟s
                  trademark to talk about the owner‟s goods.
                      1. Problem is when you use the trademark but you talk about your
                           own goods.
              v. Movie Buff is an English word so that can be used, but you cannot omit
                  the space.
             vi. Furthermore, you can use it in comparative advertising.
     b. Playboy Enterprises v. Terri Welles
               i. The metatag keywords include “playmate, playboy...”
              ii. In addition to initial interest confusion, other factors are relevant:
                      1. Evidence of the initial interest confusion as being damaging and
                           wrongful OR
                      2. Evidence that confusion between two products will mistakenly
                           lead the consumer to believe there is some connection between
                           the two and therefore develop an interest in the defendant‟s line
                           that it would otherwise not have OR
                      3. Evidence that the situation offers an opportunity for sale not
                           otherwise available by enabling defendant to interest
                           prospective customers by confusion with the plaintiff‟s product.
             iii. Plaintiff has failed to present any facts indicating any of the factors.
             iv. No evidence that Welles has intended to divert plaintiff‟s customers to
                  her site by trading on Playboy‟s goodwill.
              v. PMOY is something that she was; so even though it was trademark
                  uses, it is a fair use b/c it describes something true about Terri Welles
                  and it does not deceive the public.
     c. Playboy Enterprises v. Netscape
                   i. Defendants are infringing and diluting its trademarks by linking banner
                      ads with the search terms “playboy” and “playmate.”
                  ii. In either infringement or dilution theory, you have to show that
                      defendants used plaintiff‟s mark in commerce.
                 iii. Infringement: Core element is the likelihood of confusion to confuse
                      customers about the source of the products.
                          1. Court: plaintiff has not so shown.
                          2. Plaintiff relies on initial interest confusion (upon realizing that a
                             user is not at the site initially sought, she may stay; thus the
                             competitor has captured the trademark holder‟s potential
                             visitors or customers).
                          3. The holder of a trademark may not remove a word from the
                             English language merely by acquiring trademark rights in it.
                 iv. Dilution: To establish dilution, a plaintiff must show that:
                          1. Defendants have use of a junior mark sufficiently similar to the
                             famous mark to evoke in a relevant universe of consumers a
                             mental association of the two that
                          2. Has caused
                          3. Actual economic ham to the famous mark‟s economic value by
                             lessening its former selling power as an advertising agent for its
                             goods and services.
                  v. No showing that the words were used as trademarks, instead of
                      independently in a no-trademark sense.
                 vi. Use in metatags: playboy, playmate, herbal essences are all common
                      English words so „use‟ of the words would not necessarily constitute
                      trademark infringement.

    1. Copyright: Idea/expression dichotomy; No protection for facts.
          a. Original work of authorship.
          b. Fixed in a tangible medium of expression, now known or later invented.
          c. Perceptible directly or by aid of device.
          d. Now known or later invented.
          e. Exclusive rights to reproduce, distribute, create derivative works, perform,
    2. Digital Millennium Copyright Act:
          a. ISP not liable for copyright infringement by 3rd parties if:
                    i. Not the initiator of the transmission
                   ii. Transmission is automatic
                  iii. No ISP selection of recipients
                  iv. No copy made by ISP
              v. No modification of content.
       b. 17 USC §512(c)(1)(C): Not liable if upon notification of claimed infringement –
          responds expeditiously to remove or disable access to the material that is
          claimed to be infringing or to be the subject of infringing activity,
       c. 17 USC 1201(a) Anti-circumvention provision: no person shall circumvent a
          technological measure that effectively controls access to a work protected
          under this title.
               i. Universal City Studios v. Reimerdes: prohibits devices primarily
                  designed for the purpose of circumventing encryption; violation of
                  anti-circumvention provision.
       d. Provisions:
               i. No person shall circumvent a technological measure that effectively
                  controls access to a work protected under this title – 17 USC §1201
              ii. §1201(a)(2) prohibits the manufacture, import, offer to the public,
                  provide, or otherwise traffic in any technology, product, service,
                  device, component, or part thereof, that:
                      1. Primarily designed or produced for the purpose of
                          circumventing a technological measure that effectively controls
                          access to a work protected under this title;
                      2. Has only limited commercially significant purpose or use other
                          than to circumvent a technological measure that effectively
                          controls access to a work protected under this title; OR
                      3. Is marketed by that person or another acting in concert with
                          that person with that person‟s knowledge for use in
                          circumventing a technological measure that effectively controls
                          access to a work protected under this title.
             iii. The criminal law is shown in the Sklyarov Case.
                      1. Mens rea was willfully and not knowingly, so no conviction.

3. Fair Use: §107: Fair use doctrine.
       a. Defense to infringement.
       b. Elements:
              i. Purpose and character of the use.
                     1. Is it transformative? Does it do something else than what the
                         original does? Ex. Books are entertainment. Reviews are analysis
                         = fair use.
                     2. Is it commercial? **NOTE: if it‟s trademark and commercial,
                         parody defense does not apply! Commercial character always
                         trumps transformativeness. Ex. John Deere/Snuggles.
             ii. Nature of the copyrighted work: creative work always has more
                 protection than a factual work.
              iii. Amount and substantiality of the portion copied.
                      1. The heart.
              iv. Effect on the market for the original.
                      1. This practice of swapping music files, would this practice, if
                          widely followed, diminish the market for the original
                          copyrighted work?

4. Application to Napster: If the direct infringement of the copyrighted works is fair
   use, then no infringement or contributory infringement.
       a. Purpose and character of the use:
               i. Transformative: NO. Not transformative; complete songs.
              ii. Commercial nature: YES. The fact that Napster users get for free
                  something they would ordinarily pay for, that counts as commercial use
                  due to economic advantages.
       b. Nature of the copyrighted work:
               i. YES.
       c. Amount and substantiality of the portion copied:
               i. Songs or CD‟s?
              ii. YES anyway.
       d. Effect on the market for the original:
               i. First, reduces CD sales.
              ii. Second, raises barriers for entry into the market.
             iii. **There were two surveys that purported to show losses of CD sales
                  coincident with the rise of Napster.
                      1. There was a problem with the survey: decline in CD sales before
       e. All tip against finding individuals‟ swapping of files as fair use.
       f. Even though substantial noninfringing uses, Napster encouraged it a lot so it
           comes out of the realm of noninfringing uses.

5. 4 big cases:
       a. NY Times v. Tasini: a database (by entering a collective work
           individual works are retrievable) you have disassembled the magazine into
           individual articles.
                i. Tasini was the head of a union. Union brought suit for including
                   freelance articles in online databases.
               ii. Court: exploitation of their individual articles and use that was not
                   permitted w/o permission.
              iii. §101: a collective work is a work, such as periodical issue, anthology, or
                   encyclopedia, in which a number of contributions constituting separate
           and independent works in themselves, are assembled into a collective
      iv. At what point did the NY Times and its collective work and the
           individual rights, part company?
       v. §201(c): copyright in each separate contribution to a collective work is
           distinct from copyright in the collective work as a whole, and vests
           initially in the author of the contribution.
      vi. In the absence of an express transfer of the copyright or of any rights
           under it, the owner of the copyright in the collective work is presumed
           to have acquired only the privilege of reproducing and distributing the
           contribution as part of that particular collective work, any revision of
           that collective work, and any later collective work in the same series.
b. What is „presented to‟ or „perceptible by‟ the reader?
        i. Nexis: list of articles in ASCII format
       ii. NYOTD: same
     iii. General Periodicals on disk: user can „jump‟ w/o „flipping‟
               1. Page by page photos.
      iv. Each of these are not a revision.
c. Practical implications:
        i. Deletions of freelance articles.
       ii. Move to „all rights‟ contracts
     iii. Loss of access to complete electronic archives

d. A&M Records v. Napster: P2P. Potential contributory or vicarious copyright
   infringement on the part of Napster or whoever distributing the P2P
   technology. The level of liability of such a service depends on its LEVEL OF
        i. Not the technology, but the behavior of the users and Napster.
       ii. Test:
               1. Contributory copyright infringement:
                      a. Knowledge
                      b. Material Contribution: help lines, play lists
               2. Vicarious copyright infringement:
                      a. Financial benefit: selling advertising space.
                      b. Supervision: help lines
e. Kelly v. Arriba Soft: anti-circumvention provisions.
f. Issue: Can a search engine retrieve copyrighted images w/o violating the
   copyright in the images?
        i. *Note: you see the Washington Post in the frame of
 , but the space on the outside is advertised.
       ii. Copyright violation here is the display. Showing the infringed website
           within the host website you are displaying:
               1. Without permission
               2. And in a manner that would not be approved of (the site is
                   framed and cut off).
      iii. Issues: framing of the site and the thumbnail sketches.
      iv. Defense of fair use were raised for both issues.
               1. Framing: no question that the host site was inviting users to d/l
                   the image w/o permission. All fair use factors tipping in favor of
                   the other.
                       a. Transformative? NO
                       b. Commercial use? YES, b/c it is offering for free
                          something that people would ordinarily have to pay for.
                       c. Nature of the work?
                       d. Interference with the market for the original? Definitely
                          might. A consolidation of news sources here takes away
                          the need to visit sites individually.
                       e. Framing is a violation of the display right and no fair use.
               2. Thumbnail sketches:
                       a. Transformative? YES, not using the purpose to reproduce
                          the images in their entirety. Ordinarily, when
                          something is reproduced in its entirety, it would be
                          infringement. But not here b/c you are using it as a
                          thumbnail in a search engine.
                       b. Commercial use? Using it as a different function.
                       c. Nature of the use? Low resolution image.
                       d. Interference with the market for the original? Will not
                          act as a substitute for the original.
               3. FRAMING violates the display right.

g. Universal Studios v. Reimerdes: free speech analysis. What is this code? Is it
   expressive or functional? To what extent can Congress legislate code in a
   certain way? Content-neutral analysis.
        i. First case to interpret Anti-Circumvention provision of DMCA
       ii. 17 USC 1201(a)
      iii. Prohibits devices “primarily designed for the purpose of
           circumventing” encryption.
      iv. Court: this is a violation of DMCA.
               1. This software is useful only for decoding CSS.
       v. Linking:
            1. Not only was the site enjoined for posting the DeCSS code, but
               they were enjoined for linking to other sites.
 vi.    The nature of the code itself:
            1. Can you prevent this person from expressing this code?
vii.    1st Amendment:
            1. What is the government interest?
            2. What is the means to further that interest.
            3. Court is looking not for least restrictive means, but narrowly
viii.   The defense the DeCSS raises is a 1st Amendment right to speak this
        code. DMCA is violative of the 1st Amendment.
            1. What is the government interest in the speech?
            2. What is the means to further that interest (the means used to
               suppress that speech)?
            3. Court is looking not for least restrictive means, but narrowly
            4. But what type of speech is it?
                   a. Computer code is speech to some extent, but it is more
                       and less than speech. It is functional/action.
                   b. It is more important for its functional use rather than its
                       expressive use.
                   c. This is content neutral scrutiny which is less than
                       content-based scrutiny.
                   d. The restriction on this kind of code falls on the
                       functional capability of the code. Any impact on the
                       dissemination of programmers‟ ideas is purely incidental.
 ix.    There may be no injunction against, nor liability for, linking to a site
        containing circumvention technology absent clear and convincing
        evidence that those responsible for the link:
            1. Know at the relevant time that the offending material is on the
               linked-to site
            2. Know that it is the circumvention technology that may not
               lawfully be offered AND
            3. Create or maintain the link for the purpose of disseminating that
  x.    And it will not subject website operators to liability for linking to a site
        containing proscribed technology where the link exists for purposes
        other than dissemination of that technology.