Rutgers Spring 2015

Internet Legal Policy - Emerging Law and Policy Changes

Class Meeting Details and Description -- Spring 2013

1   January 15 Introduction: Is the Internet law different from matter addressed by traditional law? If so, what are the statutory policy implications of this claim?

2   January 22 Background: Review elements of Internet communication, entertainment, and commerce. Review element of statute drafting and associated policies

3   January 29 International, economic and social policy issues associated with emerging Internet related case law and statues

4   February 5 Application of existing telecommunications laws, publishing laws, and broadcasting laws properly govern Internet transactions.

5   February 12 Which legal policy and procedures should be alternated to facilitate the governance Internet transactions and yield acceptable results when Internet difficulties arise?

6   February 19 Novel litigation and legislation specifically designed to address Internet legal difficulties associated with the news media and entertainment businesses.

7   February 26 Unique Internet characteristics warrant special treatment for intellectual property, the First Amendment, defamation, and privacy.

8   March 5 Special Internet legal difficulties best addressed through statutory reform.

9   March 12 Internet legal difficulties best addressed through new statutes and novel private agreements.

10   March 26 Civil and criminal procedural changes required for Internet litigation.

11   April 2 Intellectual property legislation

12   April 9 Special Topics

13   April 16 Group and Individual Class presentations

14   April 23 Group and Individual Class presentations Final work product due

Detailed Class Description

1.                      January 15 Introduction: Is the Internet law different from matter addressed by traditional law? If so, what arethe statutory policy implications of this claim?

A. How Internet works

 See Let's Get Technical - (Course Materials 1)

"Why Should the Internet be any Different?'' PACE Law Review, Fall 1998. http://www.bicklaw.com/Publications/Why_should_the_internet..htm (Please note: the full text of all articles may be found on Bicklaw.com)

B. Elements of e-commerce

Credit Cards, Advertisement, Internet Keywords, Trademarks

C. Self Help

“E-Self Help” New Jersey Law Journal September 30, 2002 http://www.bicklaw.com/Publications/e-self_help.htm

D. Insurance

E. Different kind of Property Right

“Different Kind of Property Right” New Jersey Law Journal August 8, 2005 http://www.bicklaw.com/Publications/InternetAssets.htm

F. Special Issues

Detailed Class Description

  • 2.                January 22 Background: Review elements of Internet communication, entertainment, and commerce. Review element of statute drafting and associated policies
  • A. Internet as Telecommunication - communication, Broadcasting - entertainment, and publishing - commerce
  • B. Statutory Construction
  • Sutherland Statutory Construction (Thomson/West) is the multi-volume source for the rules of statutory construction. An informal summary of the rules of statutory construction is posted in Wikipedia's statutory interpretation entry.  See CRS Report for Congress Statutory Interpretation: General Principles and Recent Trends http://www.fas.org/sgp/crs/misc/97-589.pdf
  • Ordinary and Specialized Meaning
  • Terms of art; Ordinary meaning and dictionary definitions; Statutory Language Not to be Construed as “Mere Surplusage”; Same Phrasing in Same or Related Statutes; Different Phrasings in Same Statute; Statutory Silence; De Minimis Principle
  • Overriding Presumptions; Nationwide Application of Federal Law; Waiver of Sovereign Immunity; Non-retroactivity / Effective Date; Avoidance of Constitutional Issues; xtraterritorial Application Disfavored; Judicial Review of Administrative Action; Deference to Administrative Interpretation; Repeals by Implication; Remedial Statutes
  • Preambles (“Whereas Clauses”); Findings and Purposes Sections; “Notwithstanding Any Other Provision of Law”; Implied Private Right of Action; Incorporation by Reference; Severability
  • Legislative History; Plain Meaning Rule; Uses of Legislative History; Subsequent legislation
  • Signing Statements

C. Application of Existing Law to Internet Transactions - "Implementing e-Commerce Tax Policy" Harvard Journal of Law & Technology Harvard Law School, Summer 2000, Volume 13, Number 3 Harv. J. Law & Tec 597 http://www.bicklaw.com/Publications/e-commerce_tax_policy.htm

"Americans with Disabilities Act and the Internet" Albany Law Journal of Science & Technology, Spring 2000 http://www.bicklaw.com/Publications/ADA.htm

"Ameliorating Internet Sweepstakes Liability" New Jersey Law Journal January 28, 2008 http://www.bicklaw.com/sweepstakes.htm

Litigating Workplace Injuries in a Virtual Office New Jersey Law Journal October 28, 2014 http://www.bicklaw.com/E-workplace.htm

Detailed Class Description

3.          January 29 International, economic and social policy issues associated with emerging Internet related case law and statues

  • A. Current Issues
  • French Court Blocks Rating of Teachers Online
  • A French court ruled that a popular Web site can no longer let pupils name and shame their own teachers. Following the example of successful U.S. sites, French entrepreneurs created note2be.com in January that encouraged students to grade teachers and discuss their ability. (Source: Reuters 3/08)

New Zealand Teen Charged in Global Hacking Case

A New Zealand teenager allegedly at the center of an international cyber crime network appeared in court where he was charged with computer hacking crimes. Computer programmer Owen Thor Walker, 18, was charged with two counts of accessing a computer for dishonest purpose, damaging or interfering with a computer system and possessing software for committing crime, and two counts of accessing a computer system without authorization. (Source: The Washington Post 3/08)

Yahoo Sued Again in Chinese Dissident E-mail Case

Yahoo and at least one subsidiary face their second major lawsuit by Chinese dissidents claiming the company aided Chinese authorities by handing over e-mails and other electronic communications that ended up landing one plaintiff in jail. The current lawsuit, filed by plaintiffs Li Zhi, Zheng Cunzhu, and Guo Quan in the U.S. District Court of Northern California, seeks damages for their suffering at the hands of Chinese officials after Yahoo and Yahoo Hong Kong allegedly provided access to e-mails, e-mail records, and user identification information and other data to authorities in China. (Source: InfoWorld 3/08)

"How e-Commerce Laws Can Increase the Digital Divide" NATOA Journal of Municipal Telecommunication Policy December 2000”

“ International Internet Law Suffers Growing Pains” New Jersey Law Journal VOL. 215 - NO 1 MONDAY, JANUARY 6, 2014 http://www.bicklaw.com/Publications/E-growningpains.htm

  • Detailed Class Description

4.         February 5 Application of existing telecommunications laws, publishing laws, and broadcasting laws properly govern Internet transactions.

A. Compare and contrast existing telecommunications laws

1. telecommunications laws  - US federal and state regulators, including the Federal Communications  - Commission (FCC) and the National Telecommunications and Information Administration (NTIA);

The European Commission and European national regulators, including OFTEL (UK), ART (France), RegTP(Germany), AGCOM (Italy), CMT (Spain), OFCOM (Switzerland), ODTR (Ireland), and OPTA (Netherlands);

International regulators, including the International

Telecommunication Union (ITU) and the World Trade Organization (WTO)

 2. publishing laws

"Blogs Afforded Unequal Protection" New Jersey Law Journal January 14, 2008; http://www.bicklaw.com/Publications/Blog.htm

"Protecting Bloggers from Liability" New Jersey Law Journal September 26, 2011; http://www.bicklaw.com/Publications/ProtectingBloggers.htm

 3. broadcasting laws

B. Current issues

"Anonymous Versus Fraudulent Internet Speech" New Jersey Law Journal September 12, 2012 http://www.bicklaw.com/speechandfraud.htm

"Monitoring Employee Internet Use" New Jersey Law Journal February 25, 2008 http://www.bicklaw.com/MonitorInternetUse.htm

Publishers Drop Digital Rights Controls on Audio Books

Some of the largest book publishers in the world are stripping away the anti-copying software on digital downloads of audio books. The trend will allow consumers who download audio books to freely transfer these digital files between devices like their computers, iPods and cell phones -- and conceivably share them with others. (Source: The New York Times 3/08)

Detailed Class Description

5.        February 12 Which legal policy and procedures should be alternated to facilitate the governance Internet transactions and yield acceptable results when Internet difficulties arise?

  • A. Who drafts Internet legislation
  • B. Function of an Internet legislation drafter
  • C. Compare public law to private law for Internet purposes
  • D. legal issues per se, including cyber crime, intellectual property rights, data protection,
  • privacy rights, and consumer rights;
  •  E. legal mechanisms for addressing Internet governance issues, including self-regulation,
  • international treaties, and jurisdiction.
  • F. Radio Regulations and International Telecommunication Regulations
  •  G. Recommendations related to Internet governance mechanisms
  • 1. Forum function
  • 2. Global public policy and oversight
  • 3. Institutional coordination.
  • 4. Regional and national coordination
  •  H. Identifying public policy issues that are relevant to Internet governance and assessing the adequacy of existing governance arrangements
  • I. Dalai Lama Wants Chinese Ban of YouTube Investigated
  • People all over China are reporting that YouTube access has been blocked, possibly in connection with a Chinese government crackdown on Tibet. The Dalai Lama called for an international investigation of the crackdown, as Tibetan rioting against Chinese rule spread to other provinces.(Source: CNET News.com 3/08)

Detailed Class Description

6.             February 19 Novel litigation and legislation specifically designed to address Internet legal difficulties associated with the news media and entertainment businesses.

A. legislation associated with locating anonymous wrongdoers

B. Internet publisher protection legislation --- Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., — F.3d —-, 2008 WL 681168 (7th Cir. March 14, 2008) district court’s opinion, holding that under 47 U.S.C. 230, Craigslist could not be treated as the “publisher” of third party postings that allegedly violated the Fair Housing Act.

C. Internet as protected speech legislation --- Reno v. American Civil Liberties Union, 521 U.S. 844, (1997) States Supreme Court struck down part or all of two far reaching provisions of the Communications Decency Act of 1996 ("the CDA") and established that the medium of the Internet is entitled to the broadest First Amendment protections accorded traditional media such as books and newspapers, and not merely to the more limited First Amendment protections accorded broadcast media.

D. Internet Trademark legislation --- Lockheed Martin Corp. v. Network Solutions, Inc., 985 F. Supp. 949 (1997) - NSI did not "use" the plaintiff’s trademark, as required for direct-infringer liability, by merely registering the mark as a domain name and NSI’s conduct did not qualify as contributory infringement, even though it knew of Lockheed’s claims that the domain names were infringing.

E. Domain name legislation --- Academy of Motion Picture Arts and Sciences v. Network Solutions Inc., 989 F. Supp. 1216 (C.D. Cal 1997) NSI not liable for contributory infringement on the basis of its registering of domain names containing the terms "oscar" to registrants not associated with the plaintiff Academy

F. Third party posting legislation -- Blumenthal v. America Online, 992 F. Supp. 44 (998) Follows Zeran reaffirms that the CDA provides ISPs with absolute immunity for third party postings

G. Special legislation for domain name abuses arbitrations under the ICANN UDRP rules federal Anticybersquatting Consumer Protection Act

Detailed Class Description

  • 7.February 26 Unique Internet characteristics warrant special treatment for intellectual property, the First Amendment, defamation, and privacy.

A. "ISP Access to E-mail Content: Not Invasion of Privacy" New Jersey Law Journal, November 9, 2011 http://www.bicklaw.com/Publications/ISPAccess.htm

B Electronic Surveillance and the Need for Strong Privacy Protections

1. The Legal Framework

2. Erosion of the Wiretap Laws' Protective Scheme

3. Enhancements in Government Surveillance

C. Technological Trends Affect Privacy and Law Enforcement - DOE suits

"Download Enforcers May Be Singing New Tune" New Jersey Law Journal" July 16, 2007 http://www.bicklaw.com/Publications/RIAAEnforcement.htm

"The Recording Industry Association of America Sues Its Members' Customers” New Jersey Law Journal November 3, 2003 http://www.bicklaw.com/Publications/RIAA_Suits.htm

D. Protecting "Papers" in Cyberspace - The Internet and the Fourth Amendment

E. Preserving Government Surveillance Capabilities While Protecting Privacy And Encouraging Technological Innovation

1. Congress' Legislative Mandate for Surveillance Features Was Premised on the Effective Enforcement of Strict Privacy Protections

2. The Role of Congress and the FCC in Ensuring Balanced Implementation of CALEA

3. CALEA as an Exercise in Control and Accountability

F. Realizing the Privacy- Enhancing Potential of Encryption Technology

G. First Amendment - Reno v. American Civil Liberties Union, 117 S. Ct. 2329 (1997). In 1996, Congress passed the Communications Decency Act in attempt to curtail "indecent" and "patently offensive" speech on the Internet.

H. Specific issues - "Blogs Afforded Unequal Protection" New Jersey Law Journal January 14, 2008; "E-Telephone Privacy" Internet Law & Strategy Volume 5, Number 12 December 2007; http://www.bicklaw.com/Publications/e-phone.htm

Detailed Class Description

8. March 5 Special Internet legal difficulties best addressed through statutory reform.

A. Police Worry About Internet's Role in Teen Pranks

Teenage boys have always been prone to mischief and bragging. Sometimes, the prank is a firecracker in a mailbox and the boasting occurs among friends. But police and arson investigators say the Internet is changing the scale and scope of these pranks -- and they are worried. (Source: USA Today 3/08)

B. "Emerging Internet Telemedicine Issues" New Jersey Law Journal December 24, 2007; http://www.bicklaw.com/Telemed.htm

C. Alienware Corporation v. Online Gift Rewards, No. 08-1560, S.D.N.Y. (Filed February 14, 2008).

Computer manufacturer Alienware has filed suit against an online marketer alleging trademark infringement, dilution, and other theories of unfair competition and claims that the defendant has “disseminated mass unsolicited electronic solicitations” and posted Web pages offering “free” Alienware laptops.

D. Digital Millennium Copyright Act (DMCA)

1. DMCA implements two 1996 WIPO treaties criminalizes production and dissemination of technology, devices, or services that are used to circumvent measures that control access to copyrighted works criminalizes the act of circumventing an access control, even when there is no infringement of copyright itself -- amended title 17 of the U.S. Code to extend the reach of copyright, while limiting the liability of Online Providers from copyright infringement by their users

2. See Bick A Terse Guide to the e-Application of the Digital Millennium Copyright Act http://www.bicklaw.com/Publications/DMCA_Guide.htm

3. Chamberlain v. Skylink, 381 F.3d 1178 (Fed. Cir. 2004)

E. This Uniform Domain Name Dispute Resolution Policy (the "Policy") - adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN"), incorporated into Registration Agreement --- See domain name cases http://www.wipo.int/amc/en/domains/cases/all.html

Bakers Delight Holdings Ltd v. Andrew Austin Case No. D2008-0006- (Course Materials 2) or http://www.wipo.int/amc/en/domains/decisions/html/2008/d2008-0006.html

Detailed Class Description

9.March 12 Internet legal difficulties best addressed through new statutes and novel private agreements.

A. Va. Supreme Court Upholds Felony Spam Conviction

A divided Virginia Supreme Court affirmed the nation's first felony conviction for illegal spamming, ruling that Virginia's anti-spamming law does not violate free-speech rights. Jeremy Jaynes of Raleigh, N.C., considered among the world's top 10 spammers in 2003, was convicted of massive distribution of junk e-mail and sentenced to nine years in prison. (Source: USA Today 3/08)

B. Public law -

1. Can Spam Act

"Dual Use Spam" New Jersey Law Journal May 8, 2006; http://www.bicklaw.com/Publications/DualUseSpam.htm

SPAMMERS ADAPT AND PERSEVERE - 'DUAL USE' SPAM CIRCUMVENTS LEGISLATIVE AND TECHNOLOGICAL RESTRICTIONS

2. E-signature Act

“Lawful Viable E-Signature Options” New Jersey Law Journal June 7, 2004 http://www.bicklaw.com/Publications/Viable_e-signature.htm

C. Private law -

1. Minimum Advertised Price Agreements  - "Coordinating Traditional and Internet Sales" New Jersey Law Journal May 28, 2007 http://www.bicklaw.com/coordinating.htm

MAP AGREEMENTS CAN HELP MAINTAIN LEVEL PLAYING FIELD FOR BRICK AND MORTAR STORES

2. Terms of use agreements

D. International agreements

Moroccan Jailed for Facebook Impersonation Freed A Moroccan computer engineer jailed for setting up a Facebook account in the name of King Mohammed's brother freed after a royal pardon, was jailed for three years and given a $1,370 fine for falsifying data and imitating Prince Moulay Rachid without his consent. (Source: Reuters 3/08 )

Detailed Class Description

10.   March 26 Civil and criminal procedural changes required for Internet litigation.

A.

"How Internet Use Can Ameliorate Mass-tort Litigation Difficulties" New Jersey Law Journal December 16, 2013 http://www.bicklaw.com/Publications/E-masstortlitigation.htm

"Selling Municipal Securities via the Internet" Internet Law & Strategy November 24, 2013 http://www.bicklaw.com/SellingMunicipalSecuritiesviatheInternet.htm

 "Some States Criminalize Internet Identity Theft" New Jersey Law Journal November 18, 2013  http://www.bicklaw.com/SomeStatesCriminalizeInternetIdentityTheft.htm

B. Federal Rules of Civil Procedure

Doctrines of civil procedure, Jurisdiction, Venue, Pleadings and motions, Pleadings Service of process, Complaint, Answer, Counterclaim, Cross claim,  Pre-trial procedure Discovery, Interrogatories, Depositions, Request for admissions, Request for production; Resolution without trial Default judgment , Summary judgment, Voluntary dismissal, Involuntary dismissal, Settlement, Trial Parties, Jury, Burden of proof, Judgment,  Appeal Mandamus, Certiorari

C. Federal Rules of Criminal Procedure

U.S. Constitution,  Federal statutes and rules,  State statutes and rules, Charging instruments, Petit juries, Presentation of evidence, Verdict,  Burden of proof, Deliberation,  Sentencing,  Appeals

Detailed Class Description

11. April 2 Intellectual property legislation

A. "The Maturing Nature of e-Intellectual Property Legal Services" New Jersey Law Journal November 12, 2012 http://www.bicklaw.com/Publications/newservice.htm

"The Brave New World of Internet Copyright Trolls" New Jersey Law Journal September 15, 2014  http://www.bicklaw.com/Publications/InternetCopyrightTrolls.htm

"Internet Copyright Infringement: An Emerging White-Collar Crime Internet" August 7, 2014 http://www.bicklaw.com/Publications/InternetCopyrightInfringement.htm

B. Internet Patent

Prosecution

Licensing

Litigation

C. Internet Trademark

Use

Involuntary transfer of domain name due to trademark filing

Prosecution

Licensing

Litigation

D. Internet Copyright

Prosecution

Licensing

Litigation

E. "Abusive Social Networking Can Yield IP Infringement" New Jersey Law Journal September 24, 2010; http://www.bicklaw.com/Publications/Abuse.htm

Detailed Class Description

12. April 9 Special Topics

A. "Applying Technology to the Business of Health Care" New Jersey Law Journal April 30, 2012 http://www.bicklaw.com/Publications/E-BusinessofHealthcare.htm

B. "The Internet and Immigration" New Jersey Law Journal June 27, 2011; http://www.bicklaw.com/Publications/e-Immigration.htm

C. "Internet Crime and the Elderly" New Jersey Law Journal August 1, 2011 http://www.bicklaw.com/Publications/e-Elderlaw.htm

D. "Applying Nuisance Law to Internet Bad Acts, New Jersey Law Journal May 2, 2011; http://www.bicklaw.com/NuisanceLaw.htm

E. "Advances in Internet User Tracking Technology Yield New Privacy Violation Claims" New Jersey Law Journal February 21, 2010; http://www.bicklaw.com/Publications/tracking.htm

F. "Internet-Based Franchise Encroachment Runs Rampant" New Jersey Law Journal December 20, 2010;” http://www.bicklaw.com/e-Franchiseproblems.htm

Detailed Class Description

Class 13. April 9 Special Topics Continued and Group and Individual Class presentations

A. EBay Criticizes "Organized" Attacks in Romania

eBay is decrying the lack of interest in cyber crime by authorities in countries such as Romania, Russia, and China. The online auction site pinpoints these three countries as the source of the majority of phishing e-mails that target eBay users for personal and account details. (Source: CNET News.com 3/08)

B. People v. Fernino, — N.Y.S.2d —-, 2008 WL 382348 (Ct. February 13, 2008)

New York family court, required that defendant Fernino have no contact with a certain Delgrosso. After Fernino added Delgrosso as a “friend” on MySpace, she was charged with contempt of court for allegedly violating the order of protection. Fernino moved to dismiss the criminal complaint against her, arguing that even if the allegations were true, the purported “contact” through “friending” Degrosso would not support a conviction on the charges. The court denied the motion to dismiss.

C. Atlas Copco AB v. Atlascopcoiran.com, No. 07-1208, 2008 WL 149128 (January 8, 2008)

Due to overseas registrants of domain names,(atlascaspian.com and atlascopcoiran.com) plaintiff Atlas Copco AB sought in rem relief against the domain names under 15 U.S.C. §1125(d)(2)(a). -- defendants failed to answer and Atlas Copco moved for summary judgment, relying on the allegations of its verified complaint. The court granted the motion and ordered the domain names transferred.

D. Group and Individual Class presentations and Special Topics (10 minutes each) … peer critique -- Group I

http://www.bicklaw.com/Teaching/images/clip_image001_001.gif

Detailed Class Description

Class 14. April 23 Group and Individual Class presentations and completion of special topics

Final work product due April 23

A. Group and Individual Class presentations and Special Topics (10 minutes each) … peer critique -- Group II

Deliver paper copy of final work product

B. Special Topic Continued

Prosecutors Subpoena Records from JuicyCampus.com

New Jersey prosecutors have subpoenaed records of JuicyCampus.com, a website that publishes anonymous, often malicious gossip about college students. Language on the site ranges from catty to hateful and offensive. (Source: USA Today 3/08)