Internet Legal Resource Guide 		<http://www.ilrg.com/>
ILRG Law School Course Outlines Archive 	<http://outlines.ilrg.com/>
LawRunner:  A Legal Research Tool 		<http://www.lawrunner.com/>

Author:  	David Washenfelder <dxw14690@Bayou.UH.EDU>
School:	University of Houston School of Law
Course:	Network Law
Year:		Fall, 1996
Professor:	Cavazos
Book:		Cyberspace & the Law; Cavazos & Morin 

I.  Introduction
A.  Causing a reexamination of all areas of law because of changing technology
B.  Significant IP problem because:
1.  ease of duplication/distribution 
2.  integrity of duplicate is very high (no degradation)
3.  collaborative system of distribution
4.  value of data is high

II.  Defamation
A.  Requirements
1.  false statement about a person
2.  intent
3.  damages 
a.  economic harm or
b.  to reputation
4.  reference to Plaintiff with some degree of specificity (identity of defamed must be clear to the audience)
5.  audience believed the language
6.  publication (most important element) to an audience
a.  primary publisher can’t publish independently
b.  secondary publisher only responsible for content if known or should of known of questionable nature of material.  (Smith)
B.  Exceptions/Defenses
1.  Defenses
a.  statement is true
b.  consent (express or implied)
2.  Exceptions
a. Privileges
1) judicial proceedings
2) communication b/w spouses
b. Opinions
C.  NY Times v. Sullivan
1.  Different degrees of fault are needed depending upon who the plaintiff is:
2.  Standards for defamation
defamed party	defendant’s intent	damages	
public figure	actual malice	actual or punitive	
private figure in public concerns	negligence	actual or punitive*
* if actual malice	
private figure in private concern	strict liability (no fault)	actual or punitive	
3.  The status of defaming party is important as media gets more protection than non-media
4.  individuals now because of technology have same kind of power as the mass media.  Therefore the distinction is less decisive today.
5.  Libel/slander 
a.  libel-written
b.  slander-spoken
c.  distinctions fall apart on-line.  These are both subsumed under defamation.
D.  Cubby v. Compuserve
1.  distributors (bookstores, newsstands, libraries)-known or should have known standard. 
2.  secondary publishers (editorially controlled) (book publishers, newspapers, TV, radio-higher standard because editor must necessarily know of content
3. Compuserve does not have much editorial control over publication’s contents.  
4. Holding: on-line services are distributors, and not publishers, therefore known or should have known standard.
E.  Stratton Oakmont v. Prodigy
1.  Editorial control necessarily means that you must know nature of material.
2.  Prodigy made editorial control their market niche 
3.  Editorial control takes it out of protection of Smith because it makes Prodigy a publisher
a.  Miami Herald: the choice of the material to go into a newspaper constitutes an exercise of editorial control and judgment and with this control comes increased liability.
4.  Decision has very limited precedential value
F.  Computer Bulletin Boards and the Right of Reply (Sysop Defamation Liability)
1.  Bulletin board as common carrier (treat bulletin board as a transmitter) making them immune from liability regardless of content.  
a.  distinctions b/w bb and cc.  Cc enjoy exemption from copyright liability b/c of lack of control over content (wouldn’t work for bb-Syops couldn’t control or limit users who call systems)
2.  Bulletin board as secondary publisher (Cubby v. Compuserve).  Problem with Compuserve holding is that control is inversely proportional to liability (ie. encourages ignorance).  
3.  Best alternative: Right of Reply
a.  SC declared them unconstitutional in print media.
b.  R/R is cheap, expedient and convenient.
c.  Major criticism: violates basic freedom of press by mandating what press should publish.
d.  difference b/w traditional publisher and sysop, is sysop doesn’t need to be forced to offer defamed party R/R, because party already had ability by being on the system. 
G.  CDA’s silver lining
1.  CDA overrules the Stratton Oakmont ruling: No provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by an9other information content provider.
2.  as long as computer service does not create the content, it cannot be found to be a publisher.
3. provider can’t be liable because:
a.  it makes efforts to screen
b.  it provides means by which to screen
H.  General questions/issues
1.  Is an investigation of a defamation claim required to determine the statements accuracy?
2.  Known or should have known:  Does is mean know of existence of material or know that material was defamatory?
3. Reality: if claim of defamation, sysops will remove post.  Result: chilling effect. 

III.  First Amendment generally
A.  Internet 
1.  is a substantively different form of communication, otherwise no cyberlaw
2.  communications on net
a. low entry barrier
b.  content judged on quality not person
c.  general correlation b/w effectiveness of comm and entry barrier except for Internet (low entry barrier and high effectiveness)
3.  spiral of silence-mass media theory.  TV homogenizing country.  Everyone looks to everyone else to see what to say and this has a chilling effect on speech.  Encourages low risk taking.
a. spiral of silence doesn’t work well online.
B.  Stern v. Delphi
1.  Secondary issue of whether online service is a news disseminator?  
2.  Confirms a small part of Compuserve.  Court said that Compuserve is analogous to a news vendor, bookstore or library. 
3.  Therefore Delphi subject to incidental advertising exception that applies to news disseminators.  
C.  U.S. v. Baker
1.  threaten to kidnap and rape on alt.sex.stories
2.  shows indirect way that Internet is affecting other areas of law by causing reexamination of non-cyber areas of law. 
3.  focus of case was on how a reasonable person would interpret “threat” in email messages.
D.  Privacy Protection Act of 1980
1.  limits rights of government agents to search for or seize documents that are related to the dissemination of info to the public-even with valid search warrant.  Requires agents to use a subpoena when looking for documents or material intended to be published.  (These publishers must not be target of criminal investigation).  Gov’t can be liable for damages.

IV.  Privacy
A.  Constitution
1.  Implied right
a.  1st amendment-right of association
b.   4th amendment-search and seizure
B.  Email
1.  Why is this an issue?
a.  type of medium is unique
1)  ease of collection/access
2)  totally tailored to monitoring
2.  where communication is taking place can affect the reasonable expectation of privacy
a.  Cavazos: email presently less vulnerable than other modes of comm (ie. telephone)
b.  Availability/Use of encryption does not change expectation of privacy
C.  Steve Jackson Games
1.  ECPA (Electronic Communications Privacy Act) 
a.  Modeled on wiretap act
b.  Does three things:
1)  only those authorized within limits can get access to stored communications.
2)  prevents unauthorized disclosure:  people providing service can’t “divulge” to any person or entity
3)  interception-intentionally intercepts and uses or endeavors to use
2.  Case dealt with undelivered and also stored mail on BBS
3.  Issue:  does the PPA (Privacy Protection Statute) cover BBS’s?  
4.  Plaintiff sued under ECPA
a.  interception (undelivered mail)
b.  access to stored info (archived mail)
c.  Football analogy
1) interception -never got there
2) fumble - had once, but then taken
5.  Court interpreted statute correctly, but the law is bad to start with.  
6.  Turk -wiretap case.  Answering machine tape.  Access to storage, but not interception.  

V.  Sexually Explicit Materials
A.  1st Amendment
sexually-related material
pornography/indecency	obscenity
child pornography	
low---------scale of nastiness-------------	-----------high---------------	
full 1st amendment protection, except that gov’t can regulate to protect minors.  (compelling gov’t interest: children being exposed to this type of material).  	No 1st amendment protection at all.	
CDA is a fight over this area of material.		

1.  Miller test
a. average person + community standards + work taken as a whole + prurient interest
b.  patently offensive sexual conduct
c.  lacks value
B.  ACLU v. Reno
1.  Speech is inherently protected by 1st Amendment
a. Exceptions: obscenity and child porn
2.  Strict Scrutiny
a.  compelling gov’t interest
b.  narrowly drawn means to achieve interest
c.  if the law doesn’t satisfy these 2 requirements, then it is overbroad.
3.  CDA can regulate so that it protects minors, but it can’t prevent adults form obtaining material.
a.  statutory language:
anyone who in interstate communications by means of telecommunication device knowingly makes, creates, or solicits and initiates transmission of any communication that is obscene or indecent knowing that the recipient of the communication is under 18 years of age
4.  Opinion
a.  affirmative acts required to obtain material is an important issue
b.  Chief Judge Scoviter
1) he deals with the nature of the interest.  Compelling interest is directly proportional to the nastiness of the material.  He grants a compelling interest, but he focuses instead upon narrowly drawn means.  
a)  it is difficult to screen for age on-line
b) different means of communications
i)  email-you know where it is going
ii)  usenet-you don’t know where its going
iii) public mailing list/chat-you don’t know where it is going
iv)  web-not self-propagating, but difficult to discriminate based upon age
2)  Red herring-“knowing” provision
3)  Statute is overbroad
c.  DC Judge Buckwalter
1)  1st amendment 
2)  5th amendment-due process-what is illegal?  Who is enforcer of the law?
3)  Statute is vague
4) community standard doesn’t work on-line and is therefore a violation of the 5th amendment.
d.  DC Judge Dalzell
1) redoes Buckwalter’s opinion, but pushes the envelope.
2)  the nature of the medium is of paramount importance and each medium should be treated differently.
a)  the Internet has a low entry barrier, it is widespread, and has significant access.  Therefore, it should be treated with more protection and the strictest scrutiny.
3)  it is a civil libertarian masterpiece, that will hopefully force the Supreme Court to make a pronouncement on  the Internet  as a medium.  
C.  Thomas 
1.  BBS in CA, postal inspector buyer in TN, purchasing porn.
2.  Community standard doesn’t play out well on line.
a.  lowest common denominator result: data is not purveyed or only safe data is purveyed.
b.  Miller says standard apply to where materials are sent.  Defendants argue that they did not upload the files to TN, but they were downloaded by someone in TN.  
c.  Defendants used this same argument against venue in TN.  
3.  C/A dealt with violation of federal obscenity laws and transportation of materials depicting minors engaged in sexually explicit conduct.  

VI.  Encryption
A.  Introduction
1.  Plain text-readable
2.  cypher text-encrypted
3.  algorithm-key
B.  Types of Encryption
1.  codes
a.  limitations
1)  limited vocab
2)  cumbersome
3) need secure channel to setup
2.  cipher
a. substitution
1) limitations
a)  subject to frequency analysis
b)  need secure channel to setup
b.  one time pad-randomly generated numbers
1)  uncrackable
2)  limitations
a) cumbersome
b) need secure channel to setup
c.  private key encryption
1) limitations
a) cumbersome-when there are a large number of people, too many keys are needed
b) need secure channel to setup
2) DES is the gov’t standard
d.  public key encryption 
1)  2 keys: 1 public + 1 private
2) gets rid of private key limitations
3) private key-keep secure (“pry”-vate)
4) public key-give to the world (pub-“lock”)
5) limitation: authentication (ie. confidence that the public key belongs to the person who says so)
6)  solution: verification of trust
C.  Problems with Public Key Encryption
1.  Gov’t and law enforcement: they can’t perform surveillance
a.  gov’t solution: clipper chip (key escrow of private keys)
b.  problems:
1) invasion of privacy: overbreadth (comprises all messages once decoded)
2) unreasonable search and seizure -4th amendment
3) free speech-1st amendment
a) chill
b) prior restraint
c) compelled speech
4) due process-5th Amendment-self incrimination
a) incrimination by act of encrypting (ie., must be engaging in criminal acts, otherwise why encrypt?)
2.  Gov’t doesn’t want this technology getting into the hands of foreign gov’ts and individuals.
a.  Gov’t limits the incentive to develop PKE by having laws that prevent its export
b.  laws consider encryption to be a munition
D.  Karn
1.  Individual was allowed to export source code in text (ie. book), but not on a diskette.
2.  This case was brought specifically to challenge the Administrative Procedure Act pursuant to the Arms Export Control Act and the Int’l Traffic in Arms Regulations 
3.  Plaintiff claimed that deeming the same source code to be a violation of the acts to be arbitrary and capricious and an abuse of discretion in violation of the APA.
a.  1st amendment
b.  5th amendment (due process)-treating diskette differently from book.
4.  Court dismissed APA challenge, because Arms Export Control Act precludes judicial review.
5.  Court granted defendant’s motion for SJ on 1st and 5th amendment claims.  
a.  1st amendment
1) regulation is content neutral and also satisfies O’Brien test
a) if regulation is content-based, then regulation will be presumptively invalid
b) if regulation is content-neutral, then gov’t may justify the regulation if
i) it is within the constitutional power of the government and
ii) it furthers an important or substantial gov’t interest and 
iii) the government interest is unrelated to the suppression of free expression and
iv) it is narrowly tailored to the gov’t interest
2)  Plaintiff argued that O’Brien test was inapplicable, because it applies only to the regulation of conduct and that the diskette is pure speech.  Therefore strict scrutiny should apply.  
b.  5th amendment
1)  regulation is rational and does not violate due process.  Ie.  the APA is not arbitrary or capricious
E.  Bernstein
1.  Plaintiff brought suit against gov’t that AECA and ITAR are unconstitutional on their face.  
2.  Plaintiff claims:
a. 1st amendment: that the laws are content-based  prior restraint of speech, are vague and overbroad, and infringe on rights of association and equal protection.  
b.  5th amendment: APA is arbitrary and capricious.
3.  Court found:
a.  the paper of the academic writing of the plaintiff’s work in the field of cryptography is SPEECH.
1) language is by definition speech, and the regulation of any language is the regulation of speech.
b. SOURCE CODE IS SPEECH.
c.  O’Brien does not apply since source code is speech and not conduct
1)  even if it did apply.  Defendant fail to meet prongs 3 and 4.  Regulating cryptographic software appears to relate to the suppression of free expression and reaches farther than is justifiable.  
d.  Plaintiff’s prior restraint claim is colorable.
e.  Overbreadth: court could not say that plaintiff’s claim is frivolous.
f.  Vagueness: court could not say that plaintiff’s claim is frivolous.  

VII.  Anonymity/Pseudonymity
A.  Introduction
1.  anonymity-no identity
2.  Pseudonymity-alternate identity (ie. alias, handle)
3.  2 types of each
a.  traceable 
b.  untraceable
c.  email anonymity depends upon dependability of remailer
4.  Cavazos: core issue: accountability
5.  Why is anonymity beneficial?
a.  people will seek help
b.  whistleblowing
c.  political speech
d.  inhibits prejudice (i.e. preconception)
e.  does not detract from one’s ability to publish on the Internet
6.  Why is Pseudonymity beneficial?
a.  you can build an independent reputation and that name can convey a message
7.  Constitutional right: not to say who you are (compelled speech)
B.  Talley v. CA.
1.  Challenged constitutionality of requiring names on handbills
2.  1st amendment problem of chilling constitutionally protected speech by compelling speech.  Not an issue of overbroadness, rather an issue of whether protected or unprotected speech.
3.  Analysis
If regulation is content-based--------	Strict scrutiny	
If regulation is content neutral ------	O’Brien test	
4.  Cavazos: handbills are content based because of the identification of the individual, but this is a slippery slope argument. 
5.  Court found that ordinance restricted freedom of expression and was not narrowly tailored to its purpose of preventing fraud.  
6.  Holding: constitutional right to anonymous/pseudonymous speech.
C.  McIntyre
1.  Regulation requiring political campaign literature to have identification of person was held to be overbroad.
2.  Regulation covered core political speech and was therefore content-based and did not survive strict scrutiny.
a. purpose of statute was to prevent false/misleading statements, but encompassed all documents even if true. 
D.  GCSPA
1.  GA law prohibiting someone from knowingly transmitting data if that person uses name to falsely identify the person.
2.  ACLU challenged law and requested injunction
a.  violates 1st amendment
2.  violates privacy
1) right of association -gov’t can’t make group volunteer membership list
2) privacy right
a) 4th amendment-unreasonable search and seizure
b) 5th amendment-self-incrimination
3. vague and overbroad
4.  violates commerce clause-venue in GA for any transmission through, to or from GA.  Therefore regulates everyone and burdens interstate commerce. 
3.  State’s defense: falsely has intent read into it and statute is a fraud statute.  
4.  ACLU says speech is content-based (ie. Identity of person)

VII. Copyright
1.  Introduction
1.  Copyright protects the author of a work that is an original expression fixed in a tangible medium
2.  Rights include
a. Reproduction
b.  Derivative works
c. Distribution
d. Public display/performance
3.  Requirements - none
a. No notice required ©
b. No registration required
4.  Infringement
a. P must prove (1) ownership of valid © and (2) copying by D
b. Whether profit was made by infringer is a factor
c. Civil & Criminal liability
d. Defenses
1) fair use
2) work not protected (public domain, i.e., author explicitly releases it, or the copyright has expired.
3) first sale
4) license 
a) usually have an implied limited license when you buy something
b) only non-exclusive licenses may be implied, others must be in writing
5) Independent creation
5) Consider AOL web-browser: do they have a right to make money letting people see other’s web pages?  Display & Distribution violation?
5.  Fair Use
a.  Purpose of fair use is free speech & academics
b.  Factors
1) purpose & character of use (commercial/non-commercial)
2) nature of work (entertainment/factual)
3) amount of work used
4) effect on market for work (does it displace)
c.  Without it on Internet, everything would be a  infringement
d.  Only way to avoid this analysis is by claiming an implied license
6. Non-exclusive implied license
a.  Important to every service on the net, otherwise everyone would be an infringer
1) i.e., you put it there, you must have meant for me to look at it.  
b.  Express license always over-rides implied
1) i.e., put at bottom of page, “you have no right to ____”
c.  To protect a web-page, you need a license agreement page before it
d.  Is there an implied license on web pages?
7.  Public Domain
a.	Author must specify that work is PD
b.	PD is a license to do whatever you want
8.  Mai v. Peak 
a.  Downloading of info into RAM is a © violation by copying
b.  Ignorance is no excuse of existence of  ©
1) i.e., intent is irrelevant
9.  Religious Technology v. Lerma - Scientology files, the Net, and the Post
a.  D motion for SJ granted
b.  © violation - court used fair use
1) purpose & character - news gathering and reporting
2) nature of work - factual/informational
3) amount used - 46 words (rejects significant material argument)
4) effect on market - no evidence
c.  Trade secret misappropriation - court rejects
1) no longer secret since they were on the net
2) even if secret, not acquired by improper means

VIII.  Sysop Copyright Liability
A.  Types of Infringement
1.  Direct infringement - 
a.  violating 1 of someone’s 5 exclusive rights
b.  knowledge not required
2.	Vicarious infringement
a.  control over direct infringer
b.  direct financial interest in infringing act
3.  Contributory infringement - helping direct infringer infringe
a.  Participatory
1) knowledge of participation in act or 
2)  induces, causes, or materially contributes
b.  Means to infringe
1) implicit knowledge
2) create instrumentality for infringement
3) no substantial non-infringing use
B.  Cases
1.  Sony VCR case
a.  means to infringe
b.  a substantial non-infringing use and fair use was found
2.  Playboy v. Frena - porn pix trading of Playboy’s files.  Defendant never uploaded files, just let subscribers do so and trade pix.  Copyright violation, Trademark infringement & unfair competition claims.
a.  copyright violation
1) direct or contributory infringement?
i) Cavazos doesn’t think that you can have 2 direct infringers for one act
2) fair use
i) purp & char - every commercial use of © material is unfair exploitation
ii) nature of work - entertainment
iii) amount used - essential part, can’t deny violation by what you didn’t use
iv) effect on the market - if this type of conduct became widespread…(this is very different analysis than used in RTC v. Lerma
3) no knowledge
i) not matter whether he was aware of the infringement
ii) this may miss the point, can you be unaware of the infringing use, or is it unaware that the use is infringing??
b.  TM infringement* - show (1) ™ is owned and (2) likelihood of confusion
1) determine distinctiveness of mark for level of protection
i) generic - no protection
ii) descriptive-requires secondary meaning 
iii) suggestive
iv) arbitrary/ fanciful - most protection
2) likelihood of confusion
i) type of mark
ii) similarity of marks
iii) similarity of goods/services
iv) id of purchasers 
v) similarity of retail outlets
vi) defendant’s intent
vii) actual confusion
note: adopting mark to gain benefit from may be evidence of similarity
c.  Unfair competition under Lanham Act - false or misleading info likely to cause confusion about goods, or misrepresents character
1) D makes it look like P endorsed his use*
2) “reverse passing off”
*these arguments are inaccurate b/c when he used the ™ to describe the pictures, this was not misleading; and, no one who used the BBS actually thought Plaintiff was endorsing his use
3.  Sega v. MAPHIA - trading of copies of Sega games on the Internet, but no financial gain to sysop even though he encouraged people to do this.  prelim injunction granted, likelihood success on each complaint
a.  copyright infringement 
1) only says contributory, but has elements of participatory & means to
2) incorrectly cites Frena for knowledge b/c Frena didn’t need knowledge b/c he was a direct infringer
3) incorrectly applies other use factor of “means to”, stating other use must be primary use
4) can’t be vicarious infringer b/c lacks control element
b.  TM infringement
c.  false designation of origin - found likelihood, but inaccurate for same reason in Frena
4.  RTC v. Netcom (summary judgment)  Someone on usenet posted copyrighted Scientology documents. 
a.  Direct infringement (NO)
1) no intent, and Netcom didn’t do anything (i.e., like a copy machine.)  So must come under contributory infringement.
2) this would be unmanageable as a direct infringement since only the original poster knew what was going on.  
b.  Contributory infringement 
1) knowledge is an element
2) Netcom-despite the fact that it was notified by Church, the documents stayed on the server
a) Netcom didn’t know it was copyrighted
b) Court said that Netcom should have looked at documents to see if there was infringement once notified -fact ?
c.  Vicarious liability
1) A defendant is liable for the action of a primary infringer where the defendant
a) has the right and ability to control the infringer’s acts and 
b) receives direct financial benefit from the infringement.
2) Court found fact ? at to right and ability to control, but not on financial benefit and cause of action failed. 
d.  1st Amendment argument
1) court held that imposing liability for infringement where it is otherwise appropriate does not raise a 1st amendment issue.  If injunction was overbroad, then court might consider chilling effect on speech.
2) court said that this argument belongs under fair use.
3) Can not separate IP from other communication law
4) Cavazos doesn’t see why this case wasn’t analyzed under Smith v. CA
e.  Fair use defense
1) purpose and character of use-weighs in Netcom’s favor since Netcom does not directly gain any thing from the content of information available to its subscribers to the Internet.
2) nature of work-not important to fair use since plaintiff’s and poster’s use was different from Netcom’s.
3) amount and substantially of portion used-Netcom copied no more of plaintiff’s work than necessary to function as a usenet server.  Therefore this factor should not defeat this defense.
4) effect on potential market for work-the fact that other groups in the past have used stolen copies of the church’s scriptures in charging for religious training raises a fact ? 
5) Balancing --- fact ?

IX.  Trademarks
A. Considerations
1.  Domain names are transportable
2.  Domain names have the dual role of being name & address
3.  Geographic names are not protectable TMs under the Lanham Act
4.  Phone #s potentially protectable because b/c tied to actual #s
B.  Cases
MTV v. Curry
Kaplan v. Princeton Review
McDonald’s  v. Quittner
Holiday Inn v. 800 Reservations - phone # case
Dranoff-Perlstein v. Sklar - phone # case (INJURY1)

X.  Online Crime
A. Typical statutory computer crimes
1.  Trespass/unauthorized access (traditional hacking)
2.  Tampering statutes
3.  Computer fraud
4.  Possession of illicit computer info (1st Amend implications)
5.  theft/denial of services
B.  Computer crime laws
1.	Computer Fraud & Abuse Act (Morris worm) - makes it illegal to: 
a.  knowingly access w/o (or in excess of) authorization a computer and obtaining restricted or classified gov’t information
b.  knowingly access w/o (or in excess of) authorization a computer and obtaining financial info if financial institution, credit reports from agencies, or credit card info from issuers
c.  knowingly access w/o (or in excess of) authorization a computer exclusively for use of, or in a way that affects the use of gov’t computers
d.  trafficking in passwords if it affects interstate commerce or a gov’t computer
2.  Wire Fraud Act - illegal to use wire, radio, or television communication in interstate or foreign commerce to defraud
3.  National Stolen Property Act - illegal to transport in interstate or foreign commerce any goods, wares, securities or money valued at $5K or more knowing they are stolen, converted, or taken by fraud
4.  Software Piracy - unauthorized duplication, distribution, or use of other’s IP
a.  felony to reproduce or distribute 10 copies of ©’ed software w/ total value of $2500 or more in 180 days
C.	Cases
1.  Dowling (1985) - bootleg Elvis did not fit in meaning of Stolen Property Act
a. IP theft is different from theft of property (i.e. you can steal (make copy) and owner still has the original
2.  Copyright Felony Act
a. extended felony provisions to crim infringement of all copyrighted works
b.  mens rea = willfully; and 
c.  for purpose of commercial advantage or private financial gain
3.  La Macchia - gov’t tried to get him under wire fraud for his MIT depository-using BBS to facilitate copying of copyrighted computer software
a.  wire fraud does not require personal profit
b.  non-disclosure could not be basis of fraud scheme because no independent affirmative duty under © Act
c.  copyright holder’s bundle of rights is not the property interest needed under wire fraud
d.  if wire fraud were applicable, it would distort punishment scheme
e.  not convicted under © Act either b/c no profit was made
4.  Riggs/Neidorf - Bell South 911 case.  Motion to dismiss Neidorf’s charges denied
a.  charged w/ wire fraud and several other crimes
b.  wire fraud elements:
1) scheme to defraud
2) use of wire communications in furtherance of the scheme
c.  defenses
1) 1st Amend (criminalization of his publication harms his free speech) - doesn’t work b/c
i) not have to pass strict scrutiny b/c law not aimed at curtailing speech
ii) unlike other cases, his info was not lawfully obtained
iii) 1st Amend not act as a shield to prosecution of a crime just because speech was involved
iv) crim acts not excused just b/c he provided interesting information
v) speech/conduct distinction
d.  vagueness 
1) wire fraud statute not vague - he had a scheme to defraud Bell South
2) definition of “goods, wares, or merchandise” already well defined in other cases - proprietary business info in tangible medium, like paper
3) he new it was valuable property or he would not have taken it
e.  Commentary: Cavazos: this case is an example of trying to apply a traditional criminal law to a new medium.  Of course there is a real danger in creating new laws from scratch, instead of using old law to cover new areas.

XI. Cyber Promotions v. AOL
A.  The Claim:  1st Amendment violation for AOL to block Cyber’s junk email
B.  Stipulations:
1.  AOL is not a gov’t entity
2.  No government involvement in the decision to block
3.  AOL is privately owned
4.  No single entity administers the net
5.  Users have a wide variety of avenues to access the net
C.  Marsh Test for private entity serving gov’t function
1.  Acts are traditionally an exclusive process or prerogative of state (ie. postal system).  If yes then state action.  Exclusive public function test.  If no, then 2.
2.  Acts are in concert w/ gov’t or there is gov’t involvement.  If yes, then state action.  If no, then 3.  
3.  Acts are encouraged, or enforced by gov’t. If yes, then state action, if no then no state action.
D.  Findings
1.  AOL is not a state actor, nor is it acting in concert with the state
2.  AOL is not providing a government function w/ its email service
3.  Cyber has many other channels through which to send it’s advertising
4.  An injunction by the court does not rise to the requisite level of state action
5.  AOL is not a traditional public forum
E.  Commentary
1.  Right of reply-right not to speak.  This is just as important as right to speak.
2.  This case concerns civil libertarians because it seems to go to the side of allowing AOL to block anything.
3.  Legally the opinion is sound, but problematic outside that realm.
F.  CDA - No ISP can be sued for banning material from their system (safe harbor provision).  Requires good faith effort.
1.  There is no state actor provision (schools can edit)
2. 	Might this be unconstitutional since it allows the states and the fed gov’t to restrict free speech because there is no state action limit.
3. 	One would not be able to sue for breach of contract because no civil action shall lie.

XII.  Jurisdiction
A.  Terms - Personal jurisdiction
1.  general - jurisdiction over the person, no matter what they have done.  ie. where they are-domicile or presence
2.  specific - jurisdiction for particular acts related to lawsuit, must have due process 
a.  purposeful availment by D of benefits or forum
b.  must be reasonably anticipated-forseeability
c.  minimum contacts (continuous/systematic)
d. fair play and substantial justice
B.  Possibilities for Internet jurisdiction
1.  Going on-line gives total jurisdiction
2.  Going on-line gives no jurisdiction
3.  Go on case-by-case basis
4.  Prevailing view among state attorney general is that if the state law can be broken through the website, then the state has jurisdiction
note:  courts need to focus on jurisdiction, not jurisdiction clouding facts
C.  Cases
1.  Bensusan v. King - the “Blue Note”
a.  D has add on a server in Missouri, P has fed TM on “Blue Note”
b.  NY’s longarm statute states it has jurisdiction when:
1)  when a tortious act is committed in NY, or
2)  when a tort is committed out of state that has in-state consequences
note: TM infringement occurs when offered to public
c.  Ad was too local to be an infringement
1)  couldn’t do anything over net, customers had to call into Missouri and pick up tickets in Missouri, so there was no tort in NY
2)  D didn’t even think he would benefit in NY
3)  D did not purposefully avail himself to NY
d.  Result: going online and offering a service does not give jurisdiction in itself.  Court said that even if it did you would have to examine due process.
2.  Playboy v. Chuckleberry - playmen magazine, from Italy
a.  D has a magazine called “Playmen” which can only be sold in Italy
b.  D began an Italian website
c.  P wants to hold D in contempt for violating ’81 court order
1)  order says D can’t publish, distribute, or sell in US
2)  D says web not contemplated by order
3)  D cites It’s in the cards stating if it doesn’t say it, you can do it
d.  Playboy v. Frena - cited to show putting things on net is distribution
e.  court did not buy the site is in Italy argument
f.  Result: court had jurisdiction, but only because D violated a court order (D’s action effectuates a sale in the U.S.)
note:  court said it was ok if an Italian that moved to US could still get it, but not ok for US citizen to get it
g.  Commentary by Cavazos: difference between push out/pull in for jurisdiction over good/services
1) push out-easier to defend against
2) pull in-harder to defend against
3.  Compuserve v. Patterson - declaratory judgment on TM (6th circuit appeal)
a.  D used P to sell his program WinNAV
b.  P sells program of the same name
c.  D has CL TM rights
d.  Court had jurisdiction - D availed himself
1)  D sold his software in Ohio to Ohio residents
2) D used CC transactions through Ohio (bad reasoning)
e.  most significant case precedentially since it is an appellate decision, but the facts cloud the law.
4.  Panavision v. Toeppen - domain squatting
a.  P makes movie cameras and has a fed trademark
b.  D registers Panavision as a domain name and shows arial views of Pana, IL
c.  court has jurisdiction
1)  D’s real business is domain squatting, not showing pics of Pana, IL
2) D is doing business in Illinois, getting benefit from California
5.  Inset Systems v. Instruction Set

6.  Maritz v. Cybergold