Syllabus

Jurisdiction


Class 1 (January 18): Introduction

Reading:

  • Casebook (CB) 27-35 (*Skim this to familiarize yourself generally with the technology.)
  • CB 51-67 (Barlow, A Declaration of the Independence of Cyberspace; Kerr, The Problem of Perspective in Internet Law; Johnson & Post, Law and Borders; Franks, Unwilling Avatars; Voyeur Dorm v. City of Tampa; National Federation of the Blind v. Target (*Spend most of your time on this reading.)
  • Revenge Porn Problem

Questions to Consider:

  • How, if at all, does the technological structure of the Internet inform how we regulate it?
  • Should we regulate what happens online at all? Why or why not? Be able to articulate specific reasons.
  • Voyeur Dorm and Target are examples of cases where we need to apply old statutes to Internet technologies. What are the problems we encounter when trying to do so?


Class 2 (January 23): What Law? What Court?

Reading:

  • CB 68-74 (Dow Jones v. Gutnick (no need to read the Callinan opinion_)
  • CB 78-83 (Overstock.com v. Department of Taxation)
  • Microsoft v. United States

Questions to Consider:

  • Why is it not always so clear what country's or state's law applies in a case involving online activity?
  • How do we apply territorial jurisdictional rules to the Internet?
  • Should we have different rules? Why or why not?
  • What is to prevent one state in the United States from exercising control over online activity throughout the entire world?


Class 3 (January 25): Personal Jurisdiction Online

Reading:

Questions to Consider:

  • What are the different approaches to establishing personal jurisdiction on the Internet?
  • What goal should these approaches achieve?
  • Which approach do you think makes the most sense? Why? Which approach makes the least sense? Why?


Online Speech


Class 4 (January 30): Is It Speech?

Reading:

  • CB 121-125 (Texas v. Johnson; Bland v. Roberts)
  • CB 136-138
  • CB 139-140 (Blu Ray Problem)

Questions to Consider:

  • What, if anything, is the difference between speech in the physical world and speach online?
  • What are some examples of online speech behaviors?
  • How do we determine if specific online content is considered speech? Is there a rule?


Class 5 (February 1): Harmful Speech

Reading:

  • CB 142-145, 147-162 (Note on True Threats; Restatement (Second) of Torts; Snyder v. Phelps; Gawker v. Bollea; People v. Marquan M.; United States v. Petrovic)

Questions to Consider:

  • Describe the conduct in each of the cases you read. What do they have in common?
  • What responsibility, if any, do platforms have to limit, stop, and punish harassing conduct that takes place on those platforms?
  • What facets of the Internet make harmful and harassing conduct possible?


Class 6 (February 6): In-Class Activity

Bullying/Cyberbullying statute drafting exercise.

DUE via email, February 8.


Class 7 (February 8): Pornography

Reading:

  • CB 163-172 (Reno v. ACLU; Ashcroft v. Free Speech Coalition)

Questions to Consider:

  • What kind of online anti-pornography law will actually survive a constitutional challenge? Put another way: What elements make an online anti-pornography law unconstitutional?


Class 8 (February 13): CDA Section 230

Reading:

Questions to Consider:

  • What are some of the rationales behind Section 230?
  • What are some of the drawbacks to the law?
  • Does the language of the statute require the interpretation offered by Zeran? Be able to explain your answer.
  • What are some of the effects of Section 230?
  • How, if at all, should Section 230 be reformed?


Privacy


Class 9 (February 15): Fourth Amendment

Reading:

  • CB 211-233 (including Riley v. California; United States v. Warshak)

Questions to Consider:

  • When is a search a "search" for the purposes of the Fourth Amendment? Is that rule easily applicable online?
  • What is the difference, if any, from a Fourth Amendment perspective, between recording a phone call and searching a cell phone?
  • What is the difference, if any, from a Fourth Amendment perspective, between searching a desk and searching a computer?
  • Do these differences (whatever they are) complicate the Fourth Amendment analysis in any way? Why or why not?


Class 10 (February 22): Electronic Communications

Reading:

  • CB 241-256 (including O'Brien v. O'Brien; Ehling v. Monmouth Ocean)

Questions to Consider:

  • What, if any, are the problems with applying the Stored Communications Act, as written, to Internet communications?
  • Is there any privacy on Facebook? Why or why not?


Class 11 (February 27): Hacking & National Security

Guest Lecture: DAVID KESSLER, Assistant United States Attorney, National Security and Cybercrime Section, United States Department of Justice

Reading:

Questions to Consider:

  • Do a little online research about what Edward Snowden did and what information he revealed.
  • After doing the reading, do you believe that the NSA's behavior revealed by Edward Snowden was legally permissible?
  • Is there really a trade off between privacy and security?
  • Given recent political developments, how can we resist or reform a structure that permits large scale surveillance of the American population?


Class 12 (March 13): Anonymity

Reading:

Questions to Consider:

  • Conceptualize the difference, if any exists, between the right to speak anonymously and the right to remain anonymous.
  • What is the rationale for allowing individuals to remain anonymous online?
  • Can you develop a rule for determining when anonymous individuals online give up their right to remain so?


Class 13 (March 15): Notice and Choice

Reading:

  • CB 296-317 (including In re DoubleClick; In re Google; In re Snapchat)

Questions to Consider:

  • What is "notice and choice"?
  • What are some rationales for this approach to consumer privacy online? What are some drawbacks to the approach?
  • Beyond simply restating the facts, what did DoubleClick, Google, and Snapchat (allegedly) do wrong? Put another way, what is the core wrong they committed? Can you see these three cases, each with different facts, as related to violations of the same privacy norm?
  • Are technologies designed without our privacy in mind? Give examples. Why do you think so?


Class 14 (Activity): Notice, Choice, and Design

Reading: None.


Class 15 (March 20): International Data Privacy and the Right to Be Forgotten

Reading:

  • CB 318-335 (including EU Data Privacy Directive; Google Spain v. Agencia Espanola de Proteccion de Datos; Schrems v. Data Protection Commissioner)

Questions to Consider:

  • Is the European approach to data privacy different from that of the United States? If so, how, specifically? If not, what are the similarities?
  • What was it about the information in Google Spain that persuaded the court that Google should de-link it? Could Google Spain apply to other types of information? What do you imagine are the effects of Google Spain?
  • Why do we need rules governing international data flows?
  • What was the problem with the "Safe Harbor"? Can it be solved after Schrems?


Intellectual Property


Class 16 (March 22): Trademarks and the Internet

Reading:

  • CB 377-393 (including Hasbro v. Asus Computer, Tiffany v. eBay)

Questions to Consider:

  • Does it matter what Hasbro and Asus were selling? What is important, for trademark infringement purposes, about the underlying product?
  • Why does the Court discuss search engines in Hasbro? Should that be relevant?
  • Why do we hold eBay liable for someone else's trademark infringement on its platform? Is this good policy?

Problem: Happy Fun Ball Problem (CB 396-397)


Class 17 (March 27): Domain Names

Reading:

  • CB 397-411 (including Panavision v. Toeppen, PETA v. Dougheny, Taubman v. Webfeats)

Questions to Consider:

  • After these three cases, what is the meaning of "commercial" with respect to "commercial use" of a domain name?
  • What could be an example of a parody site that would make the purchase of an otherwise confusing domain name appropriate?

Problems : Drunk Kids Problem (CB 411-412)


Class 18 (March 29): Exclusive Rights

Reading:

Questions to Consider:

  • What is the difference between how television works and how the technology in Cartoon Network worked?
  • What is the legal question at issue in Cartoon Network?
  • When, if ever, does a computer display a copyrighted work, according to the court in Perfect 10?


Class 19 (April 3): Aereo

Reading:

Questions to Consider:

  • Describe the differences between the Second Circuit and Supreme Court opinions in Aereo?
  • With which court do you agree? Why?
  • Can you think of reasons (other than a direct interpretation of the black letter law) why the Supreme Court would decide Aereo the way it did?

Problem: Music Locker Problem (CB 446)


Class 20 (April 5): Fair Use

Reading:

  • CB 467-472 (including A&M Records v. Napster)
  • CB 477-479 (including Perfect 10 v. Amazon)

Questions to Consider:

  • Describe how the Napster system worked. Where, precisely, did the infringement occur? Where, precisely, was the alleged fair use? This question helps you identify who is doing what.
  • What made the thumbnails in Perfect 10 v. Amazon "transformative"?

Probems: Bubonic Plagiarism Problem (CB 480)


Class 21 (April 10): Secondary Liability

Reading:

  • CB 485-495 (starting with "Note on Sony v. Universal, and including A&M Records v. Napster, MGM V. Grokster)

Questions to Consider:

  • What was the evidence of Napster's knowledge and material contribution?
  • Did the Sony defense work for Napster? Why or why not?
  • What was the evidence of Napster's vicarious infringement?
  • What was the difference between how Napster worked and how the system in Grokster worked?

Problem: Rip Mix Burn Problem (CB 496)


Class 22 (April 12): Section 512

Reading:

  • CB 496-501
  • Friday Problem (CB 502)
  • CB 502-512 (including Lenz v. Universal Music, Perfect 10 v. CCBill)

Questions to Consider:

  • Where does Section 512 fit into Copyright Law, generally?
  • Who is helped by Section 512? What kind of content creators benefit the most? Why?
  • What is the practical effect of Lenz? Why do you think copyright holders were so up in arms about this decision?


Class 23 (April 17): Digital Rights Management

Reading:

  • CB 520-531 (including the statute and Universal City Studios v. Corley, Universal City Studios v. Reimerdes)

Questions to Consider:

  • Do a close reading of the statutory language.
  • What does "effectively controls" mean?
  • What does "designed primarily to circumvent" mean?

Problem: Section 1201 Problems (CB 532)


Class 24 (April 19): Patents

Reading:

  • CB 535-543 (including Alice v. CLS Bank)

Questions to Consider:

  • You might have to read Alice twice. Don't worry. I've had to read it multiple times!
  • Identify the technology at issue in Alice.
  • How do we analyze whether the technology at issue in Alice is patentable?


Private Power


Class 25 (April 24): Big Data and "Black Box" Algorithms

Reading:

Questions to Consider:

  • What are the risks and opportunities of "big data"?
  • What are some of the problems associated with "black box" algorithms?
  • What rules, if any, can reign in bias, discrimination in "big data"?


Class 26 (April 26): Social Networks, Machine Bias, Discrimination

Reading:

Questions to Consider:

  • How do machines learn to be biased?
  • Describe some of the factors responsible for bias in artificial intelligence?
  • What can we do about it?


Class 27 (May 1): Net Neutrality

Reading:

  • CB 587-619 (including Verizon v. FCC, various "Notes", Protecting and Promoting the Open Internet)

Questions to Consider:

  • What was the FCC trying to do before Verizon v. FCC?
  • What was the essential problem with the FCC's actions, as argued in that case?
  • Evaluate the excerpt from "Protecting and Promoting the Open Internet". Do you think this is good poliy? Why or why not?


Class 28 (May 3): Review

Reading: None.