Reading Assignments

Please Note: As with any law school course, what is actually discussed during any given class may vary from what was projected and intended at the beginning of the semester. We may fall behind. Events during the semester may involve additions. In any event, that's why participants are responsible for reviewing this page periodically. (If you remember when you last checked it, the dates at the bottom of this Note will indicate whether it has been revised since then.)

Any reading assignment may become the subject matter of a quiz without further advance notice. All quiz grades combined may constitute up to 10 percent of the seminar grade.

The Casebook. Our casebook for the class is Bellia, Berman and Post, Cyberlaw: Problems of Policy and Jurisprudence in the Information Age (Thomson/West, 2d ed. 2004), available in the law school bookstore.

Other readings. There will be from time to time (such as our first class meeting) additional readings that you will access on the Internet. Some will have been created by the instructor, most will be the work of others. If you do not have Internet access from home there are computers available at the law school and elsewhere around the UI campus.

Occasionally you may find an Internet readings link that does not respond. This may be a temporary condition, or the link may no longer be available or active. Should that occur use it as a challenge to your Web searching skills to find alternative sources rather than a reason to skip it entirely -- and please e-mail me about it as well. -- N.J., November 16, 2004, January 2, 2005, February 1, 2005, February 20, 2005.

You will be held to the professional standards outlined in "So You Want to be a Lawyer: A Play in Four Acts." If you have not yet read it, do so. If you have, review it.

Read, from "Communications Law: Concepts, Perspectives and Goals", the following sub-sections: "Information Age, Information Economy," "First Amendment: The Reasons For, and Purposes and Effects Of," "New Paradigms and 'Thinking Outside the Box,'" "Down-sizing, Out-sourcing, Entrepreneurship, Flat Organizations and the Virtual Corporation," "The Billion-Dollar Bonanza," "You Want It, You Got It," "Orders of Magnitude and the '99.9%-Off Sale," "Technological Displacement and Broadside Blows," "Globalization," and "Information Rich, Information Poor."

Supplement this with "Convergence and Cyberspace" from Johnson, "Regulating the Cyber-Journalist" (1997).

Although not a "requirement," as such, it is strongly recommended that you obtain a (free) subscription to the "e-zine" called EDUPAGE. It is a source of potential topics, cool insights into what's going on in cyberspace, and a summary of current news that can save you hours of reading -- not to mention provide you a source of conversational tidbits with which to impress your friends, family, and potential employers. (It's a relatively short e-mail that has a summary at the top and comes to you two or three times a week.) Don't take my word for it? Want to see what some of the old issues look like? Check out the "Educause Listserv Archives" at http://listserv.educause.edu/archives/edupage.html. Willing to take the plunge and subscribe right now? Click on "Join or leave the list" at the top of that page and just follow EDUPAGE's instructions (obviously when using the e-mail account to which you want the publication to be delivered):

You can subscribe or unsubscribe by sending e-mail to
LISTSERV@LISTSERV.EDUCAUSE.EDU
To SUBSCRIBE, in the body of the message type:
SUBSCRIBE Edupage YourFirstName YourLastName
To UNSUBSCRIBE, in the body of the message type:
SIGNOFF Edupage

We will introduce ourselves and review the seminar expectations and assignments. Make sure you have read each of the documents linked from the seminar's main Web page, http://www.uiowa.edu/~cyberlaw/cls05. Because it is important you be familiar with this material, there will be a brief quiz about it.

We will exchange some of our background and experiences with the Internet. [When did you first start using computers? What do you use them for? Have you held a job that required computer skills? Have you designed your own, or others,' Web pages? How do you use the Web/Internet? Have you participated in any social change organization's, or political campaign's, use of the Internet? Did that work well; what kind of difference did it make? Whether or not you personally download and share music mpg files, what do you think the law/policy ought to be?]

We will discuss the "preliminary reading assignments," above, and . . .

What is "The Internet"? (a) To make sure we're all on the same page, (b) as introductory information for those who are new to the Internet/Web, and (c) as a review for all of us, one of the best statements is found in the Findings of Fact from a three-judge federal district court panel. (Not only am I referring to it for this purpose, years later, but so are our authors in the latest edition of their book.) The case, ACLU v. Reno (E.D. Pa. 1996), is one we may look at for its holding and legal analysis later on in the semester. (It deals with a Congressional effort to restrict obscenity and indecency on the Internet: the "Communications Decency Act.")

For now, we just want to read a small portion of the opinion, "II. Findings of Fact, paragraphs 1-48 (only). (It printed out to about 7-1/2 pages for me.) [If you were to print the entire opinion (which you need not do for this evening) it (for me) runs about 60 pages.] The opinion is available from, among other places, the ACLU site.

[If you're interested in seeing more of the opinions and documents in this case and its aftermath go to http://www.aclu.org/FreeSpeech/FreeSpeechmain.cfm, and put "ACLU v. Reno" in the "Search" box. You'll get over 200 hits from the ACLU site alone.] [Note: Yes, it's true that our book contains a version of this material at pp. 14-21. However, I strongly recommend you read it in the original. It's only 48 short paragraphs, after all; it's good practice to use original material; I think the numbering of paragraphs helps to follow (and refer to) it; the authors haven't saved you that much with their edit anyway; and a significant part of the reason for our reading this is to pull together in one place the history and description of the Internet, so even if some of this 1996 description is no longer applicable of what's out there today, it is a useful description of the stages we've gone through and the speed with which we've done it.]

What we are next going to do is look at cyberlaw from two different perspectives; one is the more conventional approach, the other is that of our authors. To get you in this mood, let us start with the ancient fable from India, "Six Blind Men and an Elephant." It may be something you remember reading (or having been read to you) as a youngster. At this stage our own limited vision of cyberlaw is equivalent to theirs of the elephant. What do they have to teach us about alternative approaches to cyberlaw?

At this point in our overview we're going to refer back to, and provide a specific illustration of, a number of the points in "Communications Law: Concepts, Perspectives and Goals" (especially "New Paradigms and 'Thinking Outside the Box,'" "The Billion-Dollar Bonanza," "You Want It, You Got It," and "Technological Displacement and Broadside Blows").

We will watch a couple of videos. One is a two-part from the January 2, 2005, "CBS 60 Minutes" about Google. The other is one take on how this might all evolve by the year 2014 into a system the authors call "EPIC." We'll also try to display that off the Web as a video, but read the script first at http://www.masternewmedia.org/news/2004/11/29/summary_of_the_world_googlezon.htm.

Be prepared to discuss: Just based on what you already know about Google without having watched the "60 Minutes" piece, what examples does it provide for you of the ideas discussed in the "Concepts, Perspectives and Goals" paper?
 
 

I thought it would be useful to devote one or two evenings to at least a sampling of some of the range of issues that come up when we take a conventional approach to consideration of the impact of the law on the Internet -- and the impact of the Internet on the law.

The material for this evening may also have some impact on your thinking about the topic for your paper.

We will certainly not get through all of the following references during our first class meeting, but we can at least get started, and then finish it up next week before moving on.

While the selection of what follows for this evening has not been totally random, neither does it pretend to be a thorough overview. (References to page length are, of course, approximations that vary with font and format.)

Copyright

Copyright law as a separate course and area of study. As you well know, but I will remind you anyway, there are entire courses devoted to copyright law -- including those at our law school taught by outstanding professors. Thick casebooks, numerous statutory provisions, regulations and court opinions contribute to this body of law. There is also an interesting history of the evolution of copyright over centuries, and its role as a part of international/global law and regulation.

If a part of the reason you are taking this seminar is because you are thinking about the possibility of specializing in intellectual property law I would definitely recommend that you include a copyright law class while you're in law school.

This evening we're not only not going to master copyright law, we're not even going to survey all of the basics. But you will get at least a superficial overview, and an opportunity to think about the impact of the technology that is the Internet on the underlying law and policy that is copyright -- and about all that music you downloaded for free.

Copyright law. For a superficial overview, read Section One of Professor Stacey L. Dogan's Learning Cyberlaw in Cyberspace: Copyright in Cyberspace. (2 pages)

Copyright policy. Read John Perry Barlow, "The Economy of Ideas," Wired 2.03, March 1994. (Barlow is the Pinedale, Wyoming, cattle rancher who wrote lyrics for the Grateful Dead and helped found the eff (electronic frontier foundation) with Lotus developer Mitch Kapor. A mind-stretching piece with which to begin our discussion.) (16 pages)

Then apply your law and policy insights to a very limited selection from Los Angeles Times v. Free Republic (C.D. Calif. 1999). Read the first 5 full paragraphs of the opinion; then read, from Part II. C. 3. ("Discussion"/"The Fair Use Doctrine"/"The Amount and Substantiality . . ."), only the last four paragraphs of that sub-section (a total of 2 pages). Do you agree with the court's conclusions? Should it make a difference, today, that both the Washington Post and Los Angeles Times make available, on the same page with every story, an option for readers to send it to a friend, or print it out? From an administrative/enforcement perspective which option creates the more difficulty for the copyright owner?

Now consider only the first four paragraphs from Playboy Enterprises v. Frena (M.D. Fla. 1993). Based on what you now know about "fair use," do you think Frena had a stronger, or a weaker, case than the Free Republic? (1 page)

Some questions to think about ahead of time involving my Web-posting of this material: (1) Have I violated the copyright law? How and why, or why not? How many, and which, of my steps along the way constituted potential violations? (2) Are there analytically significant distinctions between my linking to Dogan's site and to Wired's? Sometimes, if you're concerned that an item you're linking to may be removed in the future, you might just click on "Save As" and then upload it to your Web site, rather than link to another's site. Should that make a difference for copyright purposes? Is it relevant that I did, or did not, buy that issue of Wired, or that a friend gave it to me? (3) Assume this would have been a violation for any one of a number of reasons, but is not because of some exceptions, or defenses, that I could raise. What might they be?

"A difference to be a difference has to make a difference" or, "At what point does a difference in degree become a difference in kind?"

Read only the first seven paragraphs from Reno v. Condon, 528 U.S. 141 (2000). (1 page) What was it about the kind of records in question in this case that caused congressional concern? There are a great variety of records of various kinds about all of us on file here and there, such as school, military, medical, criminal, court, bank and phone. Do we care, and should we, whether these records are in "hard copy" or "electronic" form, and if the latter, whether they are available only on stand-alone computers or on password-protected Internet sites?

A rather fundamental, but usually unspoken, couple of assumptions about virtually everything else we study in law school are that (a) there is such a thing as geography, and that (b) geography is relevant. Legislation is binding within a state, or nation. A higher court's decision is binding on the lower courts in that "jurisdiction" (i.e., geographical place). In order for a country, or court, to "have jurisdiction" over you requires that you be present -- if not physically, at least in some sense -- in a geographical place.

Cyberlaw cuts the rope that tethers to some fixed spot on Planet Earth our balloon we call "the law." When you are in cyberspace you are both everywhere and nowhere. What are we to make of that? Does the Internet require a "re-do" of the entire law school curriculum?

Read the entirety of Quill Corp. v. North Dakota, 504 U.S. 298 (1992). Note that although this link takes you to Justice Stevens' majority opinion, there are also two additional opinions by Justices White and Scalia that you get by clicking on these links (or those on the majority opinion main page). (The majority's opinion is 7 pages plus some endnotes, Scalia's is one page, White's is four plus notes.) [Note: Once again, I strongly recommend you use these links rather than the truncated version of the opinion in our book, pp. 122-127, which, among other things, omits entirely the opinions of Justices White and Scalia.]

Quill will give you a sense of what the Supreme Court -- and the rest of the legal profession -- is struggling with on these issues.

A related problem (geography) arises in the context of defamation law. Defamation requires an injury to one's reputation. Normally, that means a reputation in a given community. Moreover, language considered defamatory in one context/community might be unexceptional, or even flattering, in another.

Read Rindos v. Hardwick (Sup.Ct. W. Aust. 1994) (1 page). Where is Rindos' community for purposes of defamation law? (If you're interested in knowing more about this case see the one page with links, "The Hardwick Case," http://wings.buffalo.edu/anthropology/Rindos/Law/#Hardwick.)

Could a "community" exist only in cyberspace? Suppose a "chat room" is occupied by strangers all using anonymous pen names. One pen named participant defames another pen name in the chat room. On the assumption the identity of the defamer can be ascertained, can s/he be sued for defamation? Would the allegedly defamatory comment have to relate to the online community (say, socially agreed upon standards regarding "flaming")?

Much of this evening will be spent finishing up our "Cyberlaw Survey" materials from last week.

Having done that, we want to take another look at this elephant called cyberlaw -- the view of our authors -- as we finally open our casebooks for the first time.

Steve Martin often appeared as a guest on "Saturday Night Live." One of his routines involved pointing into the distance and asking, "What the hell is that?"

David Letterman has a segment on the CBS "Late Show" he calls "Is this anything?"

Theirs are the questions with which we must necessarily begin our study of cyberlaw. What is this thing called "cyberspace"? Is it anything? In what sense is there a "cyberspace law"? Why do we need to address that question more than we did comparable questions when studying contract or tort law? How might one go about approaching the task of coming up with an answer?

Although what follows are a lot of individual readings, they are both short (sometimes just a quotation) and easy going.

Take a look at the very brief quotations and readings on the Web site I have titled, "Roses, Cheese and Cyberlaw." This site concludes with a couple of very brief quiz questions, neither of which should make your head hurt. E-mail me your answers before class.

For an example of a court's struggle with such questions, read from Chapter Two of our casebook ("Problems of Metaphor and Analogy: Introductory Case Studies") pages 25-27 and 34-46 (Intel Corporation v. Hamidi), and be prepared to discuss the questions raised by the authors on pages 46-48.

Follow this with an overview from the authors of what they have in mind with this book: the first two pages of Chapter One ("Introduction"), pages 1-2, followed by pages 12-13 ("Section B. Our Approach"). Then read the opening two pages from Chapter Three ("Problems of Geography and Sovereignty"), pages 73-74, and from Chapter Eight ("Problems of Cultural Change"), pages 683-684. Jump ahead to the first page of "Section B. Cyberspace, Community, and Globalization," page 703, and then to pages 716-723 ("Section C. Cyberspace and the Formation of Law and Policy," which is primarily an excerpt from Lessig's The Future of Ideas and the related "Notes and Questions").

At that point we're prepared to go back and start at the beginning with Chapter One, This would be a good time to reflect upon what we mean by "the Information Age." Here's a paragraph or two of mine on that subject you may find useful. Then read from Chapter One ("Introduction"), pages 2-12, including Easterbrook, "Cyberspace and the Law of the Horse," and Larry Lessig's answer to Easterbrook: Lessig, "The Law of the Horse: What Cyberlaw Might Teach."

Obviously, your own experiences and insights regarding the Web may well be a substantial contribution to class discussion, so reflect on them before class.

This week we will be concentrating on Chapter Two ("Problems of Metaphor and Analogy: Introductory Case Studies").

Note that we are doing two things with this material. (1) We are continuing last week's inquiry: "what is cyberlaw?" So why are we talking about trademark law? Not to focus on trademark law as such (we have an excellent semester-long course devoted to the subject which I don't teach); we are merely using trademark law as a way of addressing "what is cyberlaw" in a specific context rather than as just generalities. (2) Only incidentally, in the course of doing this, will we be exploring some of the basics of trademark law.

Incidentally, in that connection, the authors make reference (text, p. 48) to three sections of the Lanham Act without providing the text of those sections. It would be helpful for you to examine the actual language. Here are the links:

Lanham Act Sec. 32, 15 U.S.C. Sec. 1114, FindLaw at http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=15&sec=1114

Lanham Act Sec. 43(a), 15 U.S.C. Sec. 1125(a), FindLaw at http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=15&sec=1125

Lanham Act, 1995 amendments, 15 U.S.C. Sec. 1125(c), see above,
and 15 U.S.C. Sec. 1127, FindLaw at http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=15&sec=1127

Begin with pp. 27-34 (eBay v. Bidder's Edge), and pp. 48-65, the "Section B. Consumer Confusion and Online Trademarks" material (Brookfield Communications v. West Coast Entertainment, Planned Parenthood v. Bucci, PETA v. Doughney), followed by pp. 66-71, "Section C. Internet as Library" (Mainstream Loudoun v. Loudoun County Public Library).

Given the global -- that is, non-geographically-tethered -- nature of "cyberspace" what examples can you think of in which global standards have been necessary, created and applied (with or without a governmental, "inter-national" intervention)?

Can't think of any? What about the ancient (and current) law of admiralty? Read the material to which the admiralty link takes you. Do those passages offer analogies of use to us?

Having done that, segue to Chapter Three ("Problems of Geography and Sovereignty"), which you began last week with the first two pages. This week we continue on with pages 75-93. These pages include "Section A. The Theoretical Debate" (Johnson and Post, "Law and Borders -- The Rise of Law in Cyberspace;" Goldsmith, "The Internet and the Abiding Significance of Territorial Sovereignty" and "Against Cyberanarchy;" followed by Post's response, "Against 'Against Cyberanarchy'").

For the record, these weeks (now behind us) we dealt with some carryover from weeks two and three, and covered Chapters Two and roughly half of Three, "Problems of Metaphor and Analogy: Introductory Case Studies" and "Problems of Geography and Sovereignty" (A. The Theoretical Debate and B. Jurisdiction to Prescribe).

pp. 25-71

pp. 73-135

We start this week with a focus on "privacy," as it plays a role in a variety of contexts in cyberspace.

Since much of a law student's study of privacy involves the citizens' constitutional protection from government provided by the Fourth Amendment, we will begin with "Government Surveillance." [Chapter 4: Problems of Legal versus Technological Regulation," B. The Effect of Technology on Legal Rules, 1. Government Surveillance.]

pp. 249-269.

From there we make the logical jump to "Government Surveillance of Electronic Communications and Related Information." [Chapter 7: Problems of Control Over Information, B. Control of Personal Communications and Data, 1. Government Surveillance of Electronic Communications and Related Information.]

pp. 571-595

Continuing our "privacy" theme, we move this week from "government" surveillance to threats to personal privacy from all sources.

First, consider "Transaction-Based Monitoring: Online Profiling and the Collection and Use of Personal Data." [Chapter 7: Problems of Control Over Information, B. Control of Personal Communications and Data, 3. Transaction-Based Monitoring: Online Profiling and the Collection and Use of Personal Data.]

pp. 605-633

Then turn back to "Employer Monitoring." [Chapter 7: Problems of Control Over Information, B. Control of Personal Communications and Data, 2. Employer Monitoring.]

pp. 595-604

There's one remaining issue we want to address that relates to an individual's "privacy" rights: "Control of Individual Identity and Anonymity." It's at the beginning of the material our authors organized into Chapter 7. [Chapter 7: Problems of Control Over Information, A. Control of Individual Identity and Anonymity.]

pp. 555-571

And at this point we want to shift our focus from individuals' sense of privacy to some of the very practical concerns confronted by businesses. We've already given some attention to issues of copyright and trademark protection, and "trespass to chattels." Thus, some of this material may be vaguely reminiscent; but there's plenty new as well. Our authors have titled it, "Control of Access to Data and Network Resources." [Chapter 7: Problems of Control Over Information, C. Control of Access to Data and Network Resources.]

pp. 633-657

No class; spring break week.

And finally we wrap up Chapter 7 with a very practical bit of legal knowledge for anyone advising clients doing business on the Internet: "Control of Online Contracting." [Chapter 7: Problems of Control Over Information, D. Control of Online Contracting.]

pp. 657-681

Then, since it's something you'll want to do anyway by way of reviewing the semester's material -- before we start with the presentation, and discussion, of your papers next week -- to the extent we have time this evening let's remind ourselves once again of what the authors think the entire book and semester have been about.

Take a look again at the snippets of introductory material throughout the book assigned for "Week Two," above, described there as follows:

"For an example of a court's struggle with such questions, read from Chapter Two of our casebook ("Problems of Metaphor and Analogy: Introductory Case Studies") pages 25-27 * * * Follow this with an overview from the authors of what they have in mind with this book: the first two pages of Chapter One ("Introduction"), pages 1-2, followed by pages 12-13 ("Section B. Our Approach"). Then read the opening two pages from Chapter Three ("Problems of Geography and Sovereignty"), pages 73-74, and from Chapter Eight ("Problems of Cultural Change"), pages 683-684. Jump ahead to the first page of "Section B. Cyberspace, Community, and Globalization," page 703 * * *."

As you re-read that material remind yourself, and make note of, the general themes around which it has been organized and presented.