The focus this class is the application of copyright law to the Internet. We will consider the question of whether browsing the Internet is a breach of copyright and how the recently concluded WIPO Copyright Treaty (1996) deals with digital copyright issues.
Materials on whether linking web pages is a copyright infringement
In this class we look at on line liability which, as the cases suggest, has to this point focused on liability for copyright infringement and defamation. In particular, we will need to consider the potential liability of the Internet Service Provider (ISP) or facilitator of communications.
In this part of the class we will examine some of the privacy issues created by the Internet, especially those concerning the privacy of communications.
We will also look at the more general issue, raised by the European Union's Directive on the Processing and Free Movement of Personal Data (1995), of trade in personal information.
Privacy: E-mail Privacy
Is there a cognizable right to conduct on-line activities anonymously or under a pseudonym?
In this class we will consider the type of crimes prevalent in an informational environment:
and how the law deals with them.
The Laws of Cyberspace
Fundamentally, Learning Cyberlaw in Cyberspace is designed to solve a problem faced by those teaching in this developing field of cyberspace law: compiling, selecting, and editing appropriate and current reading material in a rapidly evolving field of law. In teaching about the intersection of law and computer technologies the possible material includes case decisions, statutes, treaties, essays, court complaints and other legal filings, and articles. A standard law school casebook can take years to write and involves gathering these various materials, carefully editing them, and providing notes to assist students in understanding the diversity of material presented. The absence of a traditional casebook for courses in this field is probably best attributed to the rapidly changing nature of the law in this area; by the time any book made it to press through traditional publishing channels it would be outdated.http://www.cyberspacelaw.org/
Maggie Chon, Seattle University School of Law
What is Cyberspace? Who Governs and is Governed in Cyberspace? How Does Law Operate in Cyberspace?
The law pertaining to the Internet both profoundly shapes and is shaped by the decentralized, rapidly developing, and even anarchic technology of digital networks. For example, in order to determine whether governments have employed "least restrictive means" in their regulation of Internet speech, reviewing courts must pinpoint the most legally pertinent technological (as well as economic and social) characteristics of the Internet -- characteristics that are often in rapid flux. Conversely, legal regulation of the Internet can exert pressure on technology, by imposing formal state-sanctioned liability rules that favor one form of technological development over another. This section begins by examining some of the legally salient technological characteristics of cyberspace.
This section also addresses some of the basic questions of who governs and is governed by the Internet. Internet technology and social organizations affect the nature of group identity and power-sharing (expressed through formal governments and laws) as well as individual social and political identities. For example, the Internet is arguably regulated as much by non-state entities (such as independent service providers or bodies that set technical standards) as it is by formal sovereign governments. Moreover, individual identities can be transformed through the anonymity, malleability and easy access to public space that are pervasive features of the technology. Private consensual arrangements among individuals and groups, whether by contract or custom, also substitute for formal governance mechanisms.
Finally, law itself is problematized by Internet technology. Traditionally, law involves a centralized sovereign actor that exerts power within its territorial boundaries. However, several features of the Internet combine to disrupt this framework: the instantaneous extraterritoriality of most acts, the lack of centralized power, and the fluidity of geographic or political boundaries. To a much greater degree than with other technologies, the design choices made by engineers will also act as a type of "regulation." This section thus concludes with some of the challenges posed to the concept of law by Internet technology.
Jay Kesan, University of Illinois at Urbana-Champaign, College of Law
The issue of personal jurisdiction over cyberactors is of great importance to consumers and businesses alike who wish to partake in the myriad types of transactions made possible through the Internet. This module addresses the rules and doctrines for deciding when a forum may exercise personal jurisdiction over a party based on the nature of her activities in cyberspace. The module begins with a brief summary of the law of personal jurisdiction, focusing primarily on Supreme Court jurisprudence outlining the Due Process requirements for exercising personal jurisdiction. This sets the stage for applying these principles to cyberspace. The module discusses the extent to which these principles can be applied coherently in cyberspace, and whether reasoned distinctions can be drawn by focusing on a few, relevant criteria related to the nature of the activities of the cyberactors in question. Such criteria include the specific characteristics of a party's web site, for example, the extent of interactivity permitted; the nature of the defendant's activity; and the nature of the plaintiff' claim. The module concludes by examining two specific proposals for personal jurisdiction in cyberspace. This could serve as a valuable topic for class-room discussion by requiring students to apply the insights they have gained in analyzing these two proposals.
The material in this module can be covered in 3-1/2 to 5 hours of classroom contact.
Cyberspace -- A case study in Spam
Lydia Loren, Northwestern School of Law of Lewis & Clark College
Different mechanisms exist for regulating activities and shaping behavior in cyberspace. Unsolicited Commercial Email (UCE), or SPAM as it is often called, is almost universally loathed yet SPAM continues. This module explores the various mechanisms that have been employed to regulate SPAM and the pros and cons of the varying approaches. Initially when confronted with challenges from new technologies, lawyers search for existing legal doctrines that will permit them to assist their clients in obtaining a desired result. As problems with the application of these extant doctrines in cyberspace become apparent, inevitably there are calls for new laws on local, state, national and even international levels. In addition to top-down regulation through government imposed laws, a bottom-up approach may be employed with individual actors attempting to shape behavior with social and monetary pressures through vehicles such as boycotts. The problems with and responses to SPAM are an ideal way to begin learning and thinking about regulating specific behaviors in cyberspace.
Eric Easton, University of Baltimore School of Law
This module explores the First Amendment freedoms of speech and press as applied to the Internet. The module consists of six units, each containing a principal case or cases, as well as related questions, notes and note cases. With pornographic speech providing the context, the first three units discuss the position of "cyberspeech" on the continuum that runs from a nearly total absence of government regulation (the print model) to nearly unfettered governmental discretion to regulate (the broadcast model). They also illustrate the courts' application of various First Amendment doctrines – prior restraint, overbreadth, public forum, etc. – to on-line speech. Two subsequent units consider limitations on the First Amendment's power to protect speech-acts, including threats, trespass, and restraint of trade. The module concludes with a unit on libel, focusing on Internet Service Provider liability.
Stacey Dogan, Northeastern University School of Law
Who, if anyone, "owns" the content that travels through cyberspace? What rights flow from such ownership? How much control should content owners have over the use and dissemination of their works over the Internet? At one end of the spectrum, proponents of strong copyright protection argue that, because of the remarkable ease with which digital material can be "copied" and transmitted over the Internet, the law should provide more and better tools to prevent members of the public from "copying" writings, music, graphics, software, and other works without the author's permission. Opponents of this view challenge the notion that digital transmissions constitute "copies" at all, and argue that the public should be allowed to share, lend, and pass on digital materials just as they have traditionally done with copies of books, music, and other copyright-protected creations. This Module will explore the fundamentals of copyright law as applied to cyberspace. We will begin with a brief introduction to copyright law, followed by short sections analyzing how the requirements for copyrightability, the exclusive rights of copyright owners, and the fair use doctrine square with the Internet medium. A separate section will address the liability of Internet Service Providers for infringement initiated by their subscribers. The final section will study the key provisions of -- and the controversy surrounding -- the Digital Millenium Copyright Act.
Diane Cabell, Berkman Center for Internet & Society, Harvard Law School
Domain names began as a helpful aid for routing data across the Net. During the gentle days of academic research, the policy of handing out a name to the first person who asked for it worked wonderfully well. When commerce hit the World Wide Web in 1992, trademark law came barreling right behind and the judicial debris continues to litter cyberspace. This module will describe how the domain name system actually works and who makes decisions about it, including dispute resolution policies. Trademark basics will be reviewed as well as important case law generated by the various uses of names on the Net.
Privacy II - Personal Information in Cyberspace
Ann Bartow, University of Dayton School of Law
This module examines online data collection techniques, and then explores the framework of privacy protections for personal information collected from individuals in cyberspace. The current policy of allowing web sites to largely "self-regulate" is overviewed, along with examples of instances in which the government has affirmatively acted to preserve the privacy of personal information (e.g. the FTC's suit againt GeoCities, and the Children's Online Privacy Protection Act of 1998). Finally, the European approach to protecting the privacy of personal information is investigated, with an emphasis on the European Data Privacy Protection Directive.
Privacy II -- Encryption
Keith Aoki, University of Oregon School of Law
Privacy is not synonymous with secrecy. To quote Eric Hughes of the Cypherpunks, "[a] private matter is something one doesn't want the whole world to know, but a secret matter is something one doesn't want anybody to know. Privacy is the power to reveal oneself selectively to the world." Strong encryption (such as "Public-Key" cryptography) makes privacy possible in an increasingly digitized electronic world, thereby enabling an open society.
This module considers how digital electronic communications are both enabling but troublingly insecure. The use of strong encryption does three things: (1) ensures confidentiality/privacy of a message; (2) ensuring authenticity of a message; and (3) ensures the integrity of the content of a message. Encryption may be thought of as a type of electronic "self-help" used to protect the content of one9s electronic communications from unwanted intrusion by public governmental entities as well as from private actors. For much of the post WW II era, the National Security Agency had an almost complete monopoly on strong encryption methods. However, this monopoly was broken by the development of "Public-Key" cryptography by Whitfield Diffie in 1975. "Public-Key" cryptography eventually spurred major controversies in the 1990s, when the U.S. government tried implementing the "Clipper Chip," which would have allowed the government to have a key into virtually any and all encrypted digital communications. This module analyzes a trilogy of cases (Karn v. U.S. Dept. of State; Bernstein v. U.S. Department of State; and Junger v. Daley) that were decided in the mid-1990s that problematically address the limits of the use of extremely strong "Public-Key" cryptographic systems by private actors.
This module will also consider anonymity and its discontents. Anonymity is related to, but not synonymous with privacy. While there is a Constitutional dimension protecting certain forms of anonymous speech (just as there is a Constitutional dimension to privacy), anonymity has a darker side as well that is related to the use of "anonymous remailer" computers (both within and without the U.S.), as ways of masking the identity of a messages sender. These darker aspects of anonymity stand in a problematic relation with the idea of encryption as a form of "self-help." What roles should accountability (legal liability included), authenticity, attribution, and integrity of electronic messages play in ongoing controversies over the use of strong "Public-Key" cryptography and "anonymous remailers."
Kenneth D. Crews, Indiana Univ. School of Law - Indianapolis and Indiana Univ. School of Library and Information Science
Electronic communication and delivery systems raise challenging questions about the effectiveness of traditional law. As business transactions occur increasingly in a computer-networked environment, the law sometimes falls short of meeting its goals or the objectives of the parties. The essential body of applicable law is contracts. Even simple purchases, whether over the counter or from an Internet website are contracts. When making the purchase in person, opportunities abound to raise questions about the goods, the price, and other concerns. Move to the electronic environment, and the same contract remains. But the parties are removed from one another, the transaction is consummated in the relatively remote conditions of cyberspace, and the one transaction may invoke the laws of multiple jurisdictions. New concerns about performance and enforceability are certain to arise. Sophisticated commercial transactions as well as millions of consumer purchases are potentially at risk. This module will examine the extension of common-law contracts into cyberspace, the challenges that courts have confronted, and the application of new and pending state and federal legislation to address related challenges.