1.

Chapter One: Introduction to the Idea of Cyberlaw

a. Why Cyberlaw?
i. Easterbrook, Cyberspace and the Law of the Horse, 4-6
1. Don’t try to build a separate “law of cyberspace” – things are moving
too fast in cyberspace for any law we write to be applicable for long.
2. Just do your best to apply old principles of law – they’re not there
because they haven’t worked before.
3. How true is this really, though? Not everything in cyberspace has a real-
world analogy.
a. USPS isn’t liable for libel for something sent through the mail,
but an email provider might be.
b. Trademark law - two restaurants with the same name on
different coasts might not be competing with each other, but
there’s only one domain name.

ii. Lessig, The Law of the Horse: What Cyberlaw Might Teach, 6-13
1. Internet is fundamentally different from the real world.
a. Things immediately determinable in the real world, like age or
sex, aren’t obvious in cyberspace.
b. Things immediately obvious in the real world, like whether
someone’s following you, aren’t in the blogotubes.
2. Current law isn’t going to work. Have to cook up new stuff, or just leave
it alone.
3. How true is this really, though? It’s not that different.
a. People can watch you in the real world without you knowing.
b. Anonymity is harder to maintain on the Internet than it might
appear.
iii. Frischmann, Why Internet Studies? 13-14

2. Chapter Two: Problems of Metaphor and Analogy

a. Four ways to regulate behavior
i. Law
ii. Social Norms
iii. Architecture
iv. Market

b. Trespass to Chattels in Cyberspace

i. Elements of Trespass: Intentional and unauthorized use of personal property
which proximately results in damage to P.
ii. eBay v. Bidder’s Edge, 27-32
1. Ebay successfully used the 'trespass to chattels' theory to obtain a
preliminary injunction preventing Bidder’s Edge, an auction data
aggregator, from using a 'crawler' to gather data from eBay’s website.

2. The court said that eBay’s trespass to chattels claim required it to show
that: 1) Bidder’s Edge intentionally and without authorization interfered
with eBay’s possessory interest in the computer system; and 2) Bidder’s
Edge’s unauthorized use proximately resulted in damage to eBay

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 3. The court found that although BE’s interference was not substantial,
“any intermeddling with or use of another’s personal property”
established BE’s possessory interference with eBay’s chattel.
4. Snowball effect: “If the court were to hold otherwise, it would likely
encourage other auction aggregators to crawl the eBay site, potentially
to the point of denying effective access to eBay’s customers. If
preliminary injunctive relief were denied, and other aggregators began
to crawl the eBay site, there appears to be little doubt that the load on
eBay’s computer system would qualify as a substantial impairment of
condition or value.”
5. Notes and Questions:
a. Decision may facilitate licensing agreements between auction
sites and aggregators
b. A clear property right to exclude may facilitate bargaining –
Richard Epstein
i. A library of agreements through digital certificates?
c. Certain transaction costs to over-propertization of the online
environment.
i. Tragedy of the Commons: if a commonly-held property
is too easy for everyone to use, it is destroyed.
ii. Tragedy of the Anticommons: if a commonly-held
property is too subdivided and difficult to use, then
nobody uses it, which is just as bad as not having it at
all.
d. Search engines also crawl and index. May be appropriate to
craft a public interest and non-commercial exception

iii. Intel v. Hamidi, 36-48

1. Holding: There can be no Tort of Trespass to Chattels for electronic
communications that neither damages the recipient computer system
nor impairs its functioning.
2. Court declined to extend common law trespass claims to the computer
context, absent actual damage: “the claimed injury is located in the
disruption or distraction caused to recipients by the contents of the e-
mail message an injury entirely separate from, and not directly
affecting, the possession or value of personal property.”
3. Court may have implicitly overturned Ebay decision: “[W]e do not read
[eBay decision] as expressing the court’s complete view of the issue. In
isolation, moreover, [it] would not be a correct statement of California
or general American law on this point.”
a. Distinguishes Ebay: The standard is not substantial interference
but perhaps use. Defendant’s conduct amounted to “use” of the
Plaintiff’s computer.
4. Remember that an injunction requires:
a. Potential for irreparable harm
b. Likelihood for success on the merits
c. The hardships on the plaintiff of not granting the injunction
exceed those on the defendant by granting it

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 5. Public policy concern: private trespass action for unsolicited or
unwanted emails will permit website operators and service providers to
stifle speech by clearing their network of undesirable communication.
a. Propertization of internet creates system of one to one
negotiation, giving rise to individual licenses for access
b. If cyberspace is a townsquare and hence public, First
Amendment protections are necessary. But if the analogy is
“private property owners,” then censorship is allowed. Similar
to real world, the architecture of the Internet is a bit of both:
public and private.
c. Trespass to chattels really does not work in online context:
Nothing is taken here that is not meant for public consumption.
c. Consumer Confusion and Online Trademarks, 51
i. Consult Lanham Act and Overview of Trademark Law, Course Supp. 2-11
1. Trademarks: A trademark (or service mark) is a word, phrase, symbol,
design, anything used to identify and distinguish one’s goods (or
services) from those of others.
a. TMs symbolize the goodwill associated with the TM owner’s
business and protect consumers from product confusion.
b. By using such marks in connection with ones goods/services in
commerce, one can acquire the exclusive right to do so.
2. The more “distinctive” a mark, the broader the scope of protection
under traditional trademark infringement law.
a. Arbitrary/fanciful mark – bears no logical relationship to
product. KODAK for cameras, APPLE for computers
b. Suggestive mark – evoke characteristic of underlying good.
COPPERTONE for suntan lotion
c. Descriptive mark – weaker. Can go on supplemental register.
ALL BRAN for cereal
d. Not inherently distinctive. MovieBuff? Are protected only if
they have acquired secondary meaning – when consuming
public primarily associates the mark with the particular
producer
e. Generic marks are unprotected by trademark law. ASPIRIN for
painkiller, THERMOS, Soda.
3. Federal TM Law is codified in the Lanham Act, 15 U.S.C. §§1114, 1125
a. §1125(a) – TM infringement - Any person who, on or in
connection with any goods or services, . . . uses in commerce
any word, term, name, symbol, or device, . . . or any false
designation of origin, . . . which is likely to cause confusion, or to
cause mistake, or to deceive as to the affiliation, connection, or
association of such person with another person, or as to
the origin, sponsorship, or approval of his or her goods,
services, or commercial activities by another person shall be
liable in a civil action . . .
b. §1125(c) – TM dilution of famous marks (added in 1995)
c. § 1125(d) – Anticybersquatting Consumer Protection Act (added
in 1999)

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 4. Domain Names
a. Domain names are unique addresses for web sites, such as
amazon.com and gwu.edu, that map to internet protocol (IP)
addresses.
b. Historically, there were 5 generic top level domains (TLDs) --
.com, .org, .edu, .net, and .gov and many country code TLDs --
.us, .uk, .it
c. The Domain Name System (DNS) is the system that coordinates
the allocation of domain names.
d. Network Solutions Inc. (NSI) was primary registrar of generic
TLDs.
5. NSI and TM/DN disputes
a. NSI registered DNs on first come, first served basis, with no
preclearance procedure
b. Whoever was first to register McDonalds.com got it.
c. How should TM rights in real space extend to the domain name
space?
6. What uses of another’s TM should be permissible on the Internet? What
analogies are relevant and appropriate for determining acceptable use
of another’s TM in these contexts?
a. In domain name
b. In metatags
c. Use by search engine
ii. Brookfield Communications, Inc. v. West Coast Entertainment Corp., 51-58
(Trademark in own domain and also in metatag, which results in more hits for
the competitor whenever a customer runs a search)
1. Elements of an infringement case: “use of a competitor’s mark in
commerce in connection with the offering of goods or services in a
manner likely to cause confusion”
a. P’s ownership of the mark
b. P’s priority as against subsequent users
c. D’s use in commerce in connection with the sale of goods or
services
d. Likelihood of confusion
2. Associational vs. initial interest confusion.
a. Associational: confused into thinking that a given product is in
fact a competitor’s product.
b. Initial interest: confused into going to a given store by
misdirection, thinking it is a competitor’s store, but using the
given store because it’s convenient, even though it’s not what
you initially wanted.
3. Holding: Brookfield has a valid, protectable trademark in "MovieBuff"
and West Coast's use of the domain name moviebuff.com would cause
a likelihood of confusion. West Coast cannot use the term "MovieBuff"
in the HTML metatags of its web site. Although there is no likelihood of
confusion, the use of "MovieBuff" in the metatags could cause an initial
interest confusion.
4. Facts:

4
 a. Brookfield’s business model: Searchable database of
entertainment info. under “MovieBuff” mark as of 1993
i. 1994: Calif. TM registration for “MovieBuff” for
computer software
ii. 1996: attempts to register moviebuff.com with NSI
iii. This DN has already been registered by West Coast
iv. 1997: applied for fed reg. of “MovieBuff”
b. West Coast’s business model:
i. Video rental store chain like Blockbuster
ii. SM “The Movie Buff’s Movie Store” – fed. registered in
1991
iii. 1998: plans to launch moviebuff.com website
iv. Plans to use “moviebuff” as metatag in connection with
website
c. Brookfield’s claims against West Coast:
i. TM as DN
ii. Arguments that West Coast’s use of moviebuff.com as
DN is TM infringement
iii. Use of mark, in commerce, likely to cause confusion
d. West Coast’s defense
i. West Coast first to register a similar trademark and first
in time to buy DN
ii. Intended use of moviebuff.com would not cause a
likelihood of confusion so there could be no violation
under the Lanham Act.
iii. Using “movie buff” as descriptive term
5. For likelihood of confusion test: Court uses eight factors known
commonly as the Sleekcraft factors in determining whether there was a
likelihood of confusion: "similarity of the conflicting designations;
relatedness or proximity of the two companies' products or services;
strength of Brookfield's mark; marketing channels used; degree of care
likely to be exercised by purchasers in selecting goods; West Coast's
intent in selecting its mark; evidence of actual confusion; and likelihood
of expansion in product line
6. See Strick Corp case: “Internet surfers are inured to the false starts and
excusions awaiting them and are unlikely to be dissuaded or unnerved
when after taking a stab at what they think is the most likely domain
name for a particular website, guess wrong and bring up another
webpage.”
7. Brick and mortar comparisons
8. Is there a free speech component? Acceptable uses of meta-tags that
don’t create confusion:
a. Criticizing social or business practice
i. Nike uses child labor. Boycott Nike.
ii. Planned Parenthood is immoral . . .
b. Differentiating with another competitor
i. “This is West Coast not Brookfield”
ii. “We’re better than Brookfield”

5
 iii. Playboy v. Netscape (Search engine keys trademaekred terms to advertisements
for rival websites)
1. Facts: Playboy claimed that Netscape's use of the terms playboy and
playmate in its keying technique for ads constituted trademark
infringement. In addition, by displaying competitor's ads that were not
obviously from a competitor at first glance, Playboy claimed that
Netscape has committed trademark dilution.
2. Initial interest confusion doctrine: The Ninth Circuit employed an eight-
factor test, originally set forth in AMF Inc. v. Sleekcraft Boats, to
determine the likelihood of confusion, giving more weight to actual
confusion (factor four).
3. Defenses:
a. Fair use
b. Nominative use
c. Functional use.
4. Trademark law doesn’t really fit; domain names can have only one user
while trademarks can have many as long as there’s no likelihood of
confusion.

d. Internet Access and Content Filtering in Public Libraries

i. Mainstream Loudoun v. Board of Trustees of the Loudoun County Public Library,
63-66
1. Issue: Whether public libraries violate the First Amendment freedom of
speech rights of library users or web publishers, by installing blocking
software on computer terminals in the libraries?
2. Rule:
a. Public school libraries may make acquisition decisions based on
content.
b. They may not make removal decisions based on content.
c. Getting the entire Internet is an acquisition decision. The library
need not provide any Internet at all but once it has chosen to
provide access, it cannot selectively restrict certain categories of
speech because it disfavors their content.
3. Battle of analogies: The Acquisition vs. Removal Debate
a. Library: “The Internet is a vast Inter-Library loan system” and
therefore, restricting the Internet is equivalent to deciding not
to acquire material for the library’s patrons
b. Plaintiff: Internet is like a set of encyclopedias, a single,
integrated system, from which the Board has decided to redact
some portions deemed unfit for patrons.
4. Related concerns: The Supreme Court ruled in 2003 that the Children’s
Internet Protection Act (CIPA), which ties federal funding of Internet
services in public libraries to mandatory filtering, is constitutional only if
adults can get filtering turned off without significant delay
e. The Platform Metaphor, 68
i. Gillespie, The Politics of Platforms, 68-73

UNIT II - WHO TO REGULATE

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Chapter 3: Problems of Geography and Sovereignty

a. The Theoretical Debate

1. Johnson and Post, Law and Borders, 79-84
i. 4 ways borders relate to law:
1. Power. Control within your borders.
2. Effects. Proximity of people to one another, and consequent effects on
behavior.
3. Legitimacy. Consent of the governed.
4. Notice. Once you cross the border, you’re on notice that new laws
apply.
ii. Online transactions cannot effectively be regulated by territorial sovereigns
because of the ease with which cyberspace actors can relocate their activities
beyond the reach of the enforcing sovereign
iii. It is illegitimate for territorial sovereigns to regulate activities beyond their
borders
iv. People selling across borders on the Internet can’t very well obey the laws of
every jurisdiction!
2. Goldsmith, The Internet and the Abiding Significance of Territorial Sovereignty, 84-89
i. Just because regulation is difficult and occasionally ineffective doesn’t mean
that governments shouldn’t try to regulate an activity that creates harmful
effects
ii. There are plenty of ways to enforce regulations: arrest people passing through a
country, seize their property, extradite them. Government can also control local
effects by prosecuting end users or local intermediaries such as service
providers.
iii. A practical example of borders in Internet regulation: extraterritorial regulation
of speech.
b. Jurisdictions, 99
1. Three forms of jurisdiction:
i. Jurisdiction to Prescribe – when does one country have the right, as a normative
matter, to apply its legal norms to a given dispute (esp. a dispute involving
extraterritorial conduct)
1. Choice of law inquiry
2. Jurisdiction to Adjudicate – country’s ability to subject persons to the
legal process -- personal jurisdiction
ii. Judgment Recognition/Jurisdiction or Power to Enforce -- Circumstances under
which one legal authority will choose to enforce the judgment of another legal
authority
2. Jurisdiction to Prescribe (Choice of Law)
i. As a normative matter, each country has the right to regulate extraterritorial
conduct that has significant local harmful effects in that country (per
“customary international law”) (Goldsmith)
ii. Does cyberspace necessitate revising Effects Principle?
1. Effects Principle is only coherent when border-crossing effects are on
the margins, when “Effects Map” retains geographical coherence.
Effects principle does not work in cyberspace, where most conduct does
not produce effects within that territory.

7
3. Extraterritorial Regulation of Speech
i. LICRA v. Yahoo!, 99-101
1. Facts: LICRA sues Yahoo.com for hosting auctions of Nazi paraphernalia.
The auctions of Nazi memorabilia were open to bidders from any
country, including France; the display of such objects, and the viewing
of such objects in France, caused a public nuisance and was forbidden
under French criminal law; Yahoo! Inc. was aware that French residents
used its auction site, as it displayed French-language advertisements on
its pages when they were accessed from computers in France. Court
says Yahoo! has the means to prevent surfers in France from accessing
these services and sites so it is not an insurmountable obstacle. Yahoo
goes for lowest common denominator and yanks the auctions, rather
than sacrifice growth.
2. Concerns: If websites are subject to the laws of all jurisdictions, would
the legal norms of the least restrictive or most restrictive community
prevail?
4. The Dormant Commerce Clause
i. Definition: Prohibits discrimination aimed directly at interstate commerce and
bars state regulations that, although facially nondiscriminatory, unduly burden
interstate commerce.
1. No direct regulation of interstate commerce
2. No laws that favor in-state businesses over out-of-state businesses
3. No inconsistent regulation where consistent national regulation is
required
4. The Pike test: facially neutral laws that burden interstate commerce
must have a local benefit that outweighs the burden on interstate
commerce. For a state to regulate the Internet, need to show a strong
local benefit with at most, minor impact on interstate commerce.
ii. American Libraries Association v. Pataki, 104-110: NY law criminalized sending
harmful communications to minors.
1. Burden on interstate commerce: regulation affects Internet, which is
everywhere. Chilling effect on speech everywhere outweighed NY’s
local benefit, so deemed unconstitutional.
iii. Washington v. Heckel, 110-15: WA law prohibited misrepresentations in spam
sent from or to a WA computer. Benefit is reducing costs on recipients of spam.
Burden is imposing truthfulness. Also, compliance (truth) is easier than
noncompliance (spoofing the address)! Benefit > burden, so constitutional.
iv. Note on CDT v. Pappert, 117-18: Pennsylvania statute that blocked access to
Internet sites carrying child pornography resulted in overblocking. Subscribers in
other states found that the websites were not available to them when ISP
removed offending IP address of the website from their message-routing
database. Court held that the law violated the First and Fourteenth
Amendments and the Commerce Clause of the Constitution
1. Note: Court also found that the law has minimal local benefit because
child pornographers will find ways to evade it
2. Still easier to target intermediaries than end users
v. Note on CAN-SPAM: No private right of action
5. Community Standards for Sexually Explicit Speech, 118-19

8
 i. The Child Online Protection Act (COPA).
1. Definition of “obscenity” was originally found in the Miller test.
a. Appeals primarily to the prurient interest as defined by
community standards
b. Patently offensive
c. Lacks serious literary, artistic, political, or scientific (SLAPS)
value.
2. COPA required all commercial distributors of "material harmful to
minors" to restrict their sites from access by minors. "Material harmful
to minors" was defined as material that by "contemporary community
standards" was judged to appeal to the "prurient interest" and that
showed sexual acts or nudity (including female breasts). This is a much
broader standard than obscenity.
3. In ACLU v. Reno, the 3d Cir. said that the Internet is fundamentally
different from traditional distribution of obscenity; COPA is
unconstitutional because it forces the application of the most restrictive
community standard to everyone. Very Post-ish.
4. In ACLU v. Ashcroft, the Supreme Court overruled the 3d Cir. Felt that
nothing inherently wrong with having to abide by the most restrictive
community standard. Adopted the Goldsmith reasoning – the Internet
isn’t fundamentally different from traditional distribution, it’s just
broader, and if you want to use such a broad communications medium,
you have to abide by the most restrictive standards.
c. Jurisdiction to Adjudicate
1. The United States Personal Jurisdiction Inquiry, 129-31
i. Pennoyer. Geography is all.
ii. Later, p/j based on either presence or consent.
iii. International Shoe. Minimum contacts, “traditional notions of fair play and
substantial justice.”
iv. McGee. Specific personal jurisdiction. You can be sued in a jurisdiction based
on a single limited contact with that jurisdiction if the suit is about that contact.
v. Hanson v. Denckla. Have to have reached out to a state and availed yourself of
its laws before you can be sued there.
vi. World-Wide Volkswagen. Can’t be subject to the laws of a jurisdiction due to
the unilateral actions of another.
vii. Calder v. Jones, 132-33: Personal jurisdiction where the brunt of the harm was
felt. The most widely used test internationally.
viii. Zippo: Sliding scale test
1. Interactive websites – easy to get p/j. Businesses.
2. Passive websites – No P/J
3. Intermediate websites – in the middle. Some interaction, not
commercial. Gaping hole.
4. Criticism of Zippo Test:
a. Unclear how exactly one draws the distinction between passive
and interactive
b. What does it mean to examine the level of interactivity and
commercial nature of the exchange of information?

9
 c. Why is the degree to which a website interactive relevant to the
question of jurisdiction?
5. Courts have shifted away from Zippo towards a test based on Calder.
6. Alternative: Targeting approach
d. Jurisdiction Based on Online Interaction
1. Analogies for translating minimum contacts analysis to Internet context:
i. Is a website doing business in / purposefully availing itself of benefits of all
states where it is accessible?
ii. Or is a website located where its servers are located, with users coming to visit
it there?
2. Young v. New Haven Advocate, 138-42
i. Facts: Lawsuit brought by Warden Young in VA for libel, claiming that the two
newspapers implied he was a racist who advocated racism … Young alleged that
newspapers circulated the allegedly defamatory articles throughout the world
by posting them on their Internet websites. Newspapers argued lack of P/J in
VA. Court states that it is not relevant that newspaper websites could be
accessed anywhere in the world but whether the newspapers intentionally
directed their website content to a VA audience.
ii. Rule: Look for whether the website is targeting towards a particular forum state
through language, adverts on website
1. Criticism: A publisher, particularly one carrying on the business of
publishing does not act to put matter on Internet in order to reach a
small target. (Dow Jones)
3. uBid v. The GoDaddy Group, 142-45
i. Rule: Effects test
1. D expressly aims its actions to cause harm to the P in forum state
2. D knows harm to P is likely to result from its actions
ii. Facts: uBID claimed GoDaddy violated the Anti-Cybersquatting Consumer
Protection Act by registering domain names confusingly similar to uBID’s
trademarks and domain names. uBID asserted GoDaddy tried to profit from
uBID’s marks and took advantage of web surfers by selling advertising for
confusingly similar websites. The district court dismissed the complaint for lack
of personal jurisdiction. uBID appealed, and the Seventh Circuit Court of
Appeals analyzed whether the district court had personal jurisdiction of
GoDaddy.
1. GoDaddy is incorporated and headquartered in Arizona. GoDaddy’s
computer servers are in Arizona. Most of its offices and employees are
located in Arizona.
2. GoDaddy automatically provides services to customers from IL and
there is no evidence to show that the company expressly aims it
conduct at this state. Court places a lot of emphasis on registrations
that are automated.
3. Existing contracts with customers in IL does not demonstrate purposeful
availament to the forum state.
4. The court of appeals agreed that the district court correctly found that
GoDaddy was not subject to specific jurisdiction in Illinois.
4. Berman, The Globalization of Jurisdiction, 148-50

10
 i. Conceptualizes legal jurisdiction in terms of social interactions that are fluid
processes not motionless demarcations frozen in time and space.
ii. Cosmopolitan pluralist conception of jurisdiction: courts would take seriously
the multiple definitions of community that might be available … for exercise of
jurisdiction.

e. Judgment Recognition and the Power of Persuasion, 151-52

1. Mere assertion of jurisdiction does not necessarily entail the ability to enforce the
judgment reached.
2. DNS
i. Registry: An entity controlling a list of domain names. Verisign, Educause.
ii. Registrar: Someone who accepts registrations to go on that list. Joker,
GoDaddy.
iii. Registrant: Someone registering a domain name. Clownpenis.fart.
3. Ways to attack DNS infringers:
i. Lanham Act
1. 15 U.S.C §1125(a) – TM infringement - Any person who, on or in
connection with any goods or services, . . . uses in commerce any word,
term, name, symbol, or device, . . . or any false designation of origin, . . .
which is likely to cause confusion, or to cause mistake, or to deceive as
to the affiliation, connection, or association of such person with
another person, or as to the origin, sponsorship, or approval of his or
her goods, services, or commercial activities by another person shall be
liable in a civil action . .
2. Have to show likelihood of confusion or mistake. Difficult when Coke
the soft drink maker sues Coke the paper maker.
3. Personal jurisdiction can be difficult to get.
ii. Trademark dilution suit
1. Same elements as above, but replace “likelihood of confusion” with
“mark has to be famous.” Makes it easier to knock out someone else’s
use.
2. Personal jurisdiction is difficult to get
iii. Anticybersquatting Consumer Protection Act (ACPA)
1. 15 U.S.C. § 1125.
a. (d)(1), in personam suits. Have to be able to actually get in
personam jurisdiction somewhere in the US. Good penalty
provisions but have to show bad faith. Bad faith can’t be found
if the person believed his use was fair!
b. (d)(2), in rem suits. If you cannot get in personam jurisdiction
anywhere in the US, can sue where the registry or registrar are
located. For .com, E.D.Va. Remedy is limited to cancellation or
transfer of the domain name.
c. If you’re doing this, make sure to get the registrar to lock the
name. Preferably, deposit it with the court.
d. Be prepared to show bad faith in an in rem suit. Not technically
required but a lot of judges will require it, since it’s needed for
an in personam suit.
iv. Uniform Dispute Resolution Protocol

11
 1. Elements of a UDRP case:
a. Registrant’s domain name is confusingly similar to the
complainant’s trademark
b. Registrant has no legitimate rights in the domain name
c. Registrant has registered the domain name in bad faith
2. Have to select an arbiter: WIPO, National Arbitration Forum, or
ADNDRC. Select for success rates for complainant, costs, …
3. Registrant can always go to court after a UDRP proceeding – IN HIS
OWN COUNTRY! If you’re trying to get a domain name away from
someone in another country, file an ACPA suit or you’ll find yourself in
court somewhere you do not like. Not much finality to a UDRP case, but
the default judgment rate is very high.
4. “blahblahsucks.com” cases tend to go either way under the UDRP.
4. Yahoo! v. LICRA, 152-57
i. In Response to LICRA ruling, Yahoo! filed a complaint in federal court in
California seeking a declaratory judgment that the French court’s orders are
neither cognizable nor enforceable under U.S. laws.
ii. Comity: the extent to which the U.S. or any other state honors the judicial
decrees of foreign nations is a matter of choice, governed by the comity of
nations.
iii. Principle of comity outweighed by obligation to uphold the First Amendment:
The court chooses not to enforce a foreign order that violations First
Amendment protections.
iv. District court does not question the jurisdiction of the French court to prescribe.
Decision ultimately dismissed for lack of PJ over LICRA/lack of ripeness.
5. Citron v. Zundel, 159-63
i. Issue: Whether it is a discriminatory practice to post material on a website if the
material is likely to expose a person to hatred or contempt.
ii. 13(1) of Canadian Human Rights Act restricts hate speech that is transmitted
over telephone lines. Court finds it inappropriate to say that hate propaganda is
licit because it has found expression through the Internet.
iii. Court cannot prevent the material on Zundel’s site from being disseminated
online but finds that there is a symbolic value in public denunciation of the
action.

Chapter Four: Problems of “Public” versus “Private” Regulation

a. Private Regulation
1. Centralized Standard Setting Bodies, 169-72
i. Weiser, Internet Governance, Standard Setting, and Self-Regulation, 169-72
1. Whether or not we admit it, the Internet did not develop without
government influence and, given its importance, government cannot
afford to ignore the limits of standard-setting bodies as a form of self-
regulation
2. Larger the community, the more difficult it is to maintain a commons
model: The government should develop a principled framework for
when to mandate open, interoperable standards that have yet to be
instituted by private standard-setting bodies

12
 3. Substantial private ownership and control in cyberspace, unchecked by
Constitution
4. In cyberspace, one uses privately owned browsers to access privately
owned online service providers, with messages traveling over privately
owned routers to privately owned websites.
5. And the governance of the domain name system is currently in the hand
of a private corporation ICANN
6. Internet has “end to end” architecture principle
a. Commitment to openness
b. Modularity and protocol layering
c. Shifting of intelligence and control to the edge of the network
7. Two particular concerns for courts and anti-trust enforcers to guard
against:
a. Use of standard setting bodies to freeze technology, either
through delay or refusal to certify the new technology
b. The non-disclosure of information that enables a company to
control key proprietary technology used in a purportedly open
standard
ii. How to facilitate internalization of negative externalities
1. Govt regulation - Government will take into account aggregate effects
and manage resources efficiently.
2. Private property rights - Government clearly defines property rights and
facilitates market exchanges.
3. Collective regulatory systems - managed access property regime
2. Decentralized Collective Action, 173
i. Media3 Technologies v. Mail Abuse Prevention System, 173-76 (Bottom-up
private regulation)
1. Facts: Before agreeing to host a Web site, Media3 “follows the standard
industry practice of requiring its customers to sign an Acceptable Use
Policy for conducting business on the Internet. This policy contains
provisions that are standard in the industry, including an ‘anti-spam’
provision.” However, Media3 policy did not prohibit its hosted Web
sites from providing other services that could be used by a spammer;
these include sales of email address lists and programs that can
“harvest” similar lists from the Internet. However, only a few Media3
customers do this. MAPS is a non-profit Internet service provider based
in California with the stated purpose of combatting spam. It does this
through its “Real-time Blackhole List,” a list of Web sites that, MAPS
concludes, send or support sending spam. A Web site that gets on
MAPS's list is generally blocked by subscribers to the MAPS list from
sending any email to the subscriber's system. In May 2000, MAPS
learned that Media3 was hosting ten “spamming” Web sites on one of
its Class C networks, and told Media3 to stop those activities, or it
would blacklist all Web sites on that Class C network. Media3 refused,
and the whole network was blacklisted. Media 3 sued for preliminary
injunction.
2. Court held that a preliminary injunction is not appropriate because
there was no business defamation — MAPS statement that Media3 was

13
 “spam-friendly” was true. Further, Media3 had not demonstrated any
actual or imminent loss of business by including non-spamming Web
sites on its list.
ii. Lessig, The Spam Wars, 176-77
1. What problems does Lessig identify with private regulation?
a. Illegitimate, unaccountable law-making: The real problem is
that vigilantes and network service providers are deciding
fundamental policy questions about how the Net should work
and they are unaccountable to the public
b. But, judicial review may not be any better. Private technical
ways of resolving conflicts on the Internet have worked in the
past.
2. His solution: Net has thrived because decisions made from the bottom-
up but wars also thrive under these circumstance so what is needed is
an institution that can mesh the best of the bottom up culture with a
top down perspective.
iii. Post, Of Black Holes and Decentralized Law-Making in Cyberspace, 178-81
1. Norms are powerful determinants of behavior.
a. RBL (MAPS system) is a textbook example of an informal,
decentralized, norm creation process, whereby the norm is that
spam is bad and must be sanctioned.
2. “No one with the authority to build the Internet could have done so”
3. Decentralized processes are fundamentally and irreducibly,
unpredictable. Internet is a decentralized emergent system and we
cannot and need not know what will ultimately emerge from this
organic system of action and reaction
4. What are the alternatives to MAPS' private speech regulation and how
do such alternatives compare?
a. State regulation may support public values such as free speech
- Heckel
b. Private trespass to chattels claim – Hamidi
c. State regulation of spam - Heckel
3. Regulation by Contract, 183
i. ProCD v. Zeidenberg, 184
1. Issue: Must buyers of computer software obey the terms of a
shrinkwrap license? Shrinkwrap licenses are enforceable unless their
terms are objectionable on grounds applicable to contracts in general
2. Zeidenberg's pre-emption arguments
a. Section 301 of Copyright Act preempts any legal or equitable
rights under state law that are equivalent to any of the exclusive
rights within the general scope of copyright [such as right to
reproduce]. Here Z says
i. Invalid contract
3. Court disagrees: Federal copyright law, although it prohibits states from
providing additional copyright protection, does not preempt contracts
from governing the use of copyrighted works. Courts have often been
willing to enforce contractual provisions even when they potentially
conflict with federal copyright law.

14
 4. Contract terms were inside the box and provided the right to return the
software for a refund if the user objected to the terms. Court says it is
not practical to put the terms on the outside where it replaces other
useful information.
5. What if contract law provisions restrict users' fair use rights?
a. Bowers v. Baystate - no reverse engineering, page 186, n.1
b. NY v. Network Associates, p. 187 n.1
i. McAfee VirusScan diskette: "Consumers do not have
the right to publish reviews concerning the software."
ii. Courts are unlikely to enforce because it is contrary to
public policy on fair use.
c. "Someone who found a copy on the street would not be
affected by license."
ii. Specht v. Netscape Comm. Corp., 187-93
1. P's substantive claims - use of smartdownload transmitted info about
their downloads to Netscape. Violation of privacy.
2. Exception to avoiding terms of a contract on grounds that consumer
failed to read before signing:
a. When the writing does not appear to be a contract and the
terms are not called to the attention of the recipient. In such a
case, no contract is formed with respect to the undisclosed
term.
b. In this case, browsewrap license, which is set forth such that the
consumer as to scroll down the home page to find and read.
3. “Plaintiff’s apparent manifestation of consent was to terms contained in
a documented whose contractual nature was not obvious.” In fact, P
was unaware that D intended to attach license terms to the use of
SmartDownload.
4. Holding: existence of license terms on a submereged screen is not
sufficient to place consumers on inquiry or constructive notice of those
terms
5. Distinguish from ProCD: User in ProCD was confronted with the license
terms every time he ran the software on his computer.
6. Policy concern: Sites more likely to insist that users scroll down and click
“I agree”, which slows down users, lessens the efficiency and speed of
online activity. Courts could have achieved the same end by refusing to
enforce unconscionable contract terms rather than resting enforcement
decisions on formal or constructive notice.
iii. Mass market licenses: In order
1. Shrinkwrap with all terms visible under plastic
2. Shrinkwrap with notice that additional terms are inside box with right to
return
3. Click-wrap with link to terms, consent to specific knowable terms by
clicking
4. Browse-wrap with terms available on interior pages (consent to
available terms by continuing to use website or downloading software)
5. Browse-wrap with modifiable terms – iTunes
6. Criticism:

15
 a. ALL of these have problems of being unbargained for and
imbalance in bargaining power and take it or leave it. Meeting
of the minds is increasingly illusory.
iv. Radin, Regulation by Contract, Regulation by Machine, 194-99
1. EPSERS - efficacious promulgated superseding entitlement regimes.
Superseding because they replace the law of the state with the law of
the company; promulgated because they are developed and enacted by
the company without negotiation or input from the recipient and
regimes because they are widespread governing many millions of
people.
2. Radin is concerned that EPSERS:
a. No meaningful value of taking into account public values in a
private regulatory regime. Public ordering protects public values
better.
b. Propertization for the firm’s private benefit has superseded the
state regime of property for the public benefit
c. No accountability. Not subject to democratic input or debate –
not arrived by at balancing conflicting interests against one
another.
3. What regulatory/judicial oversight exists for private ordering?
a. Contract and property law regimes.
b. Procedural checks
c. Substantive checks? Courts can strike down certain terms as
unconscionable and public policy
d. 301 - pre-emption claims
v. Note on the Facebook Controversy, 200-2
1. Gives opportunity to comment and vote.
2. Affected stakeholders?
a. That may work for Facebook but not every clickwrap
agreement.
b. We can't have mini townhall meetings on all of these issues.
c. Facebook is a private regime that tries to avoid real public
regulation. It also gives the appearance of a democratic regime.
d. No accountability - FB is ultimately in-charge

b. Public Regulatory Responses to “Private” Regulation, 202

1. Applying Constitutional Norms to “Private” Entities, 203-5
i. State action doctrine: when the conduct of a private party is fairly attributable
to the government for constitutional purposes.
1. When the private party is performing a public function
2. When the points of contact between the government and private party
to assess whether there is sufficient nexus between the two to justify
imposing constitutional restrains on the private actor
ii. What obligations can/should constitutionally be imposed on private regulators
of speech?
1. Town squares/shopping malls / public forums. Consider the cases that
follow in reference to online activity. Are online search engines, FB

16
 pages, bulletin boards, listservs and chatrooms public spaces where
constitutional rights and norms prevail?
a. Marsh – If you look like the government, you will get treated
like one. Established right of religious organizations to leaflet in
a town that was wholly owned by a private entity because it had
all the characteristics of any other American town.
b. Logan Valley - Logic of Marsh applied to a shopping mall, which
is the functional equivalent of a town business district and
should therefore permit political leafleting and peaceful protest
c. Hudgens – Overruled Logan Valley and determined that
shopping malls are, as private entities, not subject to First
Amendment norms.
d. PruneYard – May mean that governmental efforts to open
private property to achieve greater public access may be
constitutionally permissible.
i. Facts: California State had a provision protecting speech
and leafleting in privately owned shopping centers. The
shopping center contended that such open access
mandate constituted an unconstitutional taking of
private property without just compensation.
ii. Holding: Court distinguished previous shopping mall
decision and stated that states can exercise their police
power to adopt reasonable restrictions on private
property so long as it is not a taking without just
compensation. Court stated that not every destruction
or injury to property by governmental action is a taking.
e. Does Pruneyard extend to private property such as radio
station, newspaper, cable operator, or ISP, who may have their
own First Amendment rights? Would PruneYard extend to state
regulation of FB prohibiting it from making content or viewpoint
based restrictions on speech?
2. TV/Radio broadcasters (Red lion)
3. Newspapers (Tornillo)
4. Cable TV operators (Turner)
5. Dominant search engines (Google) - Search neutrality regulation
6. Broadband providers (Comcast/Verizon) - Net neutrality regulation.
2. Legislative Responses to “Private” Regulation, 205-7
i. Red Lion Broadcasting Co. v. FCC, 207-11 (Fairness doctrine in broadcasting)
1. Rule: The First Amendment permits a federal agency to formulate rules
to allow persons defamed or potentially defamed access to equal time
to respond and a fairness standard for editorial speech by broadcast
radio stations. Seventh Circuit reversed.
a. It does not violate 1A to treat licensees given the privilege of
using scarce radio frequencies as proxies for the entire
community.
2. FCC Fairness Doctrine Regs
a. "Equal time rule" and "response to personal attack" rule:
Require stations to provide notification and opportunity to

17
 respond when during the presentation of views on a
controversial issue of public importance an attack is made upon
the honesty, character, integrity, or like personal qualities of a
person or group.
3. Red Lion Broadcasting Co. challenged these rules as unconstitutionally
infringing their right to freedom of speech and press.
4. SCOTUS' medium specific analysis of broadcast
medium/constitutionality of regs - Right of the viewers and listeners and
not rights of speakers is paramount here.
a. Contingent right of access as opposed to Pruneyard's general
right of access
5. Characteristics of broadcast medium credited by SCOTUS in upholding
regulation
a. The courts reasoned that the scarcity of the broadcast
spectrum, which limited the opportunity for access to the
airwaves, created a need for the Doctrine. However, the
proliferation of cable television, multiple channels within cable,
public-access channels, and the Internet have eroded this
argument, since there are plenty of places for ordinary
individuals to make public comments on controversial issues at
low or no cost.
6. Public policy concerns:
a. Purpose of 1A is to preserve an uninhibited marketplace of
ideas in which truth will ultimately prevail
b. Right of public to receive suitable access to social, political,
esthetic, moral, and other ideas and experiences
c. Without government regulation, broadcasters would have
unfettered power to make time available to highest bidders and
to communicate only their views
d. Criticism: Broadcasters may be forced to self-censor and restrict
coverage of controversial public issues altogether. But
Government can also compel licensee to give adequate and fair
attention to public issues if that happens.
7. What is the implication for net neutrality regulation of broadband
service providers?
ii. Miami Herald Pub. v. Tornillo, 212-16 (newspaper)
1. Issue: whether a state statute granting a political candidate a right to
equal space to reply to criticism and attacks on his record by a
newspaper violates the guarantee of a free press
2. Holding: The Court overturned a Florida state law requiring newspapers
to allow equal access to political candidates in the case of a political
editorial or endorsement content.
3. Public policy concern:
a. Medium specific analysis: Marketplace of ideas is today a
monopoly controlled by the owners of the market: Power to
inform the public now in the hands of a few
b. No right of reply
iii. Note on Must-Carry Requirements, 217

18
 1. Cable systems: requirement that a cable operator carry all local
broadcast television signals within the cable system’s service area.
Courts invalidated different versions of such regulations under First
Amendment grounds. In 1992, Congress imposed these rules by statute.
2. Distinguish must-carry from fairness doctrine in Red Lion and from the
right of reply in Tornillo.
a. This is not an issue of fairness or equal space for differing points
of view. The must-carry rules in Turner are content neutral in
application
b. Must-carry rules for cable will not force operators to alter their
own messages to respond to the broadcast programming they
are required to carry
c. Cable operator exercises far greater control and monopoly over
the medium than a newspaper in any locale.
iv. Turner Broadcasting System v. FCC, 217-28
1. Facts: The 1992 Cable Television Consumer Protection and Competition
Act required cable television systems to set aside some of their channels
for local broadcast television. In 1994, the Supreme Court held that
these must-carry provisions pass constitutional muster. (See Turner
Broadcasting v. FCC, decided June 27, 1994). The Court then remanded
the case to determine whether Congress had adequate factual support
for its conclusion that the must-carry provision is necessary. A special
three-judge district court held that there was sufficient evidence that
the must-carry provision furthered important governmental objectives
and that the provision was narrowly tailored to promote those
interests. The broadcasters appealed directly to the Supreme Court.
2. Issue: Is Section 4 and 5 of the "must carry" law an unconstitutional
intrusion on cable operators' editorial autonomy, a form of
Government-compelled speech that violates the First Amendment?
3. Holding: No, the Court applied intermediate level scrutiny to the
content-neutral restrictions and held that Congress "has an
independent interest in preserving a multiplicity of broadcasters." Court
said that must-carry rules are not subject to strict scrutiny and required
cable companies to carry local broadcast stations since (a) they’re
monopolies and (b) they’re just conduits that don’t exercise editorial
control.
4. Policy rationale:
a. No content based restriction on speech here. Congress is merely
trying to protect broadcast television from competition
b. Do not leave up to the marketplace because it is increasingly
monopolized and controlled by a few companies
c. The outcome supported Congress's right to judge what
approach would best insure a competitive communications
marketplace.
5. Under Turner:
a. Government may regulate new speech sources so as to ensure
access for viewers who would otherwise be without free
programming

19
 b. Government may require owners of speech sources to provide
access to speakers
c. Government must do this on a content-neutral analysis
d. Government may support its regulation by invoking such
democratic goals as the need to ensure an outlet for exchange
on matters of local concern.
6. Lessons Learned from Turner et al for Net Neutrality regulation
a. Regulation prohibiting broadcast service providers from
discriminating against content
b. Standard of scrutiny: intermediate level scrutiny for content-
neutral restrictions on speech but strict scrutiny if neutral
c. Government interest in compelling “must carry” by BSPs to
provide for free flow of information and marketplace of ideas
7. Search King v. Google, 230-32
a. Plaintiff Search King operates the PR Ad network ("PRAN").
PRAN acts as a broker, placing advertisements for its clients,
and links to client web sites, on the web sites of third parties
that are themselves highly ranked on Google in response to
various search terms. Search King advertises its PRAN service
on its own web sites, which were, at one time, highly ranked on
Google's search engine. Plaintiff's sites received these rankings
as result of Google's application of its site ranking algorithm,
which gave plaintiff's pages a high 'page rank.' The 'Page Rank'
"represents the significance of a given web page as it
corresponds to a search query." Google subsequently lowered
the Page Rank of plaintiff's sites, claiming that Search King's sale
of advertising space on highly ranked web sites "undermine[d]
the integrity of Google's Page Rank system."
b. The Page Rank Google assigns to a site constitutes an opinion
protected by the First Amendment. As long as that statement
was not "provably false" it was privileged and not actionable.

3. Regulation of Internet Access Providers: Network Neutrality, 251-54

i. Internet’s “end to end” principle acts as a limitation on the property rights of
network owners since it separates infrastructure from content and all data is
treated equally by carriers over the infrastructure. However, this architecture is
not law and subject to change from sources trying to restrict end use and end
uses.
ii. Cause for concern: proponents of net neutrality fear that without any common
carrier or open access restrictions in place, broadband providers will begin to
regulate Internet use and engage in a variety of discriminatory practices.
iii. Common carriage regulations:
1. Affirmative obligations imposed on certain private entities engaged in
transportation, communications, or other important public service
functions such as railroads, motorcoaches, ferries, telegraph operators,
telephone operators, to provide nondiscriminatory service to all
customers, to facilitate the free flow of information and commerce,
without censorship or discrimination.

20
 iv. Communications Act:
1. Telecommunications services: Telecommunications service providers –
offering of telecommunications* for a fee directly to the public:
a. “the transmission, between or among points specified by the
user, of information of the user’s choosing, w/o change in the
form or content of the information”
b. Regulated as common carriers under Title II
2. Information services - “the offering of a capability for generating,
acquiring, storing, transforming, processing, retrieving, utilizing, or
making available information via telecommunications.”
a. Not subject to common carriage regulation
b. Lightly regulated
3. Cable services
a. Subject to regulation by local franchising authorities
b. Municipalities can impose “open access”/network neutrality
requirements
v. Brand X decision: FCC rules that cable broadband providers do not provide
“telecommunications services” so they are exempt from common carriage
requirements. FCC subsequently lifts common carriage requirements from all
other broadband providers. Broadband providers are under no obligation not to
discriminate.
vi. Post Brand X:
1. Comcast secretly degraded/blocked legal peer to peer file sharing traffic
(BitTorrent) in 2007, which prompted FCC to renew efforts to impose
net neutrality regulations. FCC censured Comcast but Comcast sued,
claiming FCC had no authority to censure it. The DC Circuit agreed and
FCC’s censure of Comcast struck down by courts in 2010.
vii. In the wake of Brand X decision and FCC’s deregulation of broadband, push for
net neutrality regulation/legislation to:
1. Prohibit broadband providers from discriminating against content or
applications in the form of
a. Blocking
b. Degrading *** slowing down disfavored traffic, a la Iran
c. Prioritizing (their own or affiliated content)
2. 2010: FCC proposed, then abandoned, plan to treat BSPs in their
transmission capacity as common carriers (“Third Way”)
a. Dec. 2010: major but weakened net neutrality regulation issued
by FCC. Effective late November 2011
viii. New Net Neutrality Rules
1. Wireline/fixed BSPs: no blocking of any lawful content, apps, services,
subject to reasonable network management + no unreasonable
discrimination in handling traffic
2. Wireless/mobile BSPs: no blocking of lawful content/apps that
compete with wireless BSP’s voice/video services, subject to reasonable
network management *** no “no unreasonable discrimination” in
handling traffic mandate
3. Both: transparency in network management required

21
4. Unclear as to what counts as reasonable network management as
opposed to unreasonable
5. Challenges: Broadband providers like Verizon will argue that FCC is
without authority to regulate them and that FCC rules violate their
rights. Advance Verizon’s best legal arguments:
a. Verizon has characterized the provision of broadband Internet
access as first and foremost “the microphone through which
broadband Internet access providers speak”
b. Verizon has claimed that “Verizon’s position under the First
Amendment as a broadband Internet access provider is no
different than a newspaper publisher’s.”
c. Assess these claims
i. Verizon is saying that the regulations are constitutional
on 1A grounds because they violate Verizon’s right to
free speech under Tornillo: “We are like a newspaper.”
Even scarcity under Tornillo is not enough to justify 1A
violation.
ii. If you are Verizon, you have to distinguish Turner’s
must-carry provisions. Can argue that it only applied to
one-third of the pipeline while the regulations apply to
all.
1. Establish that the regulations are somehow
content neutral as opposed to Turner where
content was “local content”
a. This helps FCC, since lower standard of
scrutiny is applied on content neutral
restrictions.
iii. Takings argument: We get to say what happens in our
pipelines (See Lloyd).
d. FCC reply:
i. Newspapers create their own content so bad analogy.
BSP is more like a toll road.
ii. Analogize Red Lion – limited broadcast spectrum allows
for regulation in the public interest due to economic
scarcity and physical barriers
iii. Turner applies because BSPs are like gatekeepers with
control over content, that justifies bottlenecking
iv. Must carry regulations are content-neutral, and subject
to less scrutiny.
v. No takings: Pruneyard
6. Free Press has claimed that net neutrality regulations’ distinction
between wireline and wireless broadband providers is without legal
foundation and is arbitrary and capricious:
a. Wireline/fixed BSPs: no blocking of any lawful content, apps,
services, subject to reasonable network management + no
unreasonable discrimination in handling traffic
b. Wireless/mobile BSPs: no blocking of lawful content/apps that
compete with wireless BSP’s voice/video services, subject to

22
 reasonable network management *** no “no unreasonable
discrimination” in handling traffic mandate
c. Both: transparency in network management required
d. What are wireless BSPs permitted to do?
i. Wireless broadband provider would be permitted, for
example, to cut a deal with YouTube that allowed its
videos to stream faster than a video on Hulu so long as
the provider somehow disclosed to its subscribers that
it was doing so.
e. Assess Free Press’s claim
i. Takings argument: No takings per Pruneyard

4. Concluding Case Study: Internationalization of Legal Regimes: Governing the Domain

Name System, 263
i. An Introduction to the Domain Name System, 264
1. Registry – one for each TLD. VeriSign is registry for .com. Maintains and
operates a unified Registry Database, which contains all DNs registered
by all registrants and registrars in .COM
2. Registrars – retail side – authorized to register domain names in a
particular TLD on behalf of users. Many registrars per TLD.
3. Registrants – you and me. Those with right to use a particular dn like
amazon.com
4. What happens when you type in an Internet address, such as
www.amazon.com?
a. The Internet works by requiring that each computer connected
to the Internet have a unique numerical address (IP address –
123.45.67.89).
b. In order for your request to access amazon.com’s content to be
routed properly, your computer must be able to find the unique
numerical address corresponding to www.amazon.com.
c. When you type in www.amazon.com, you thereby request a
copy of the amazon.com home page to be sent to your
computer.
d. Your message requesting a copy of amazon.com’s home page
first stops off at a computer known as a Domain Name System
server (DNS server), which is usually maintained by your ISP.
e. The DNS server reads from right to left.
i. First it reads “.COM” – a top level domain (TLD)
ii. Each TLD name server provides the information
necessary to direct DN queries to the second level DN
server responsible for the DN in question
5. VeriSign (successor to NSI), as the registry for all DNs ending in .COM, is
the single entity that maintains all official records worldwide for
registrations in the .COM top level domain.
a. VeriSign as the .COM registry is responsible for directing DN
queries regarding the amazon.com second level domain to the
appropriate second level domain name server

23
 i. This second level domain name server matches the DN
amazon.com with its numeric IP address
b. VeriSign is the exclusive registry for all DNs ending in .COM
c. It maintains and operates a unified Registry Database, which
contains all DNs registered by all registrants and registrars in
.COM
i. But many other entities are registrars for DNs ending in
.COM, which handle the retail side of DN registration
d. Once it receives the numerical IP address for AMAZON.COM, it
places the address into your message and sends it on its way.
6. Registrars:
a. Registrars allow individuals to register second level domains in
.COM on a first come, first served basis.
b. Registrars maintain records containing the name and address of
the DN registrant, contact information for each DN registrant,
the DN itself, the IP address for the DN, and the expiration date
of the DN.
c. Va. Corporation has major role in DNS system.
d. Relevance for PJ and TM/DN disputes? Can claim PJ where
registrar is located in order to bring TM/DN suits
7. DNS Management
a. Ways to Attack DNS Infringers (Page 13)
b. Domain Name System used to be managed by NSF and Jon
Postel
c. 1992: NSF farmed out this work to NSI for 5 years
d. Dot com boom. 1994/95. Why is private company NSI
responsible for DNS? pp. 268
e. US govt decided to recognize a new non-profit corp. to assume
responsibility for DNS (White Paper p. 270) that would equitably
represent interests of various stakeholders across global
Internet community: ICANN
ii. ICANN, 266
1. 1998: Internet Corporation for Assigned Names and Numbers is born
2. In 1998: Internet Corporation for Assigned Names and Numbers
(ICANN), a private corporation, was created and charged with DN
coordination/DNS management.
3. Established via memo of understanding with U.S. Department of
Commerce – privatization of Internet.
4. Agreement charges ICANN with oversight responsibility for technical
coordination of domain names and with assuring bottom-up
coordination, market competition and global representation. Org. chart
p. 274
5. Agreement with DOC also charges ICANN (based on consultation with
WIPO) with job of:
a. establishing system for resolving certain TM/DN conflicts;
b. creating system for accrediting DN registrars; and
c. determining whether to add new TLDs – generic and country
code.

24
 6. In 1999, ICANN adopted the Uniform Domain Name Dispute Resolution
Policy (UDRP) to resolve disputes between TM owners and DN holders.
7. All DN registrars must be accredited by ICANN and must adopt UDRP.
8. Anyone registering a DN through an accredited registrar is bound by
UDRP
iii. UDRP
1. Designed to provide quick and inexpensive procedure to be used by TM
owners around the world to address TM/DN conflicts.
a. Contra TM litigation, which can be slow and expensive.
2. Rule: For TM owner/Complainant to remove DN from DN holder,
Complainant must establish:
a. that Complainant has common law or federal TM rights in DN,
b. that DN is identical or confusingly similar to the TM,
c. that DN holder’s registration and use of DN was in “bad faith,”
and
d. that DN holder’s registration and use was without “rights or
legitimate interests.”
3. Remedy: Only remedy is cancellation of DN or transfer of DN to
complainant
4. How does UDRP get around jurisdictional issues:
a. Invokes contractual consent of the registrant to resort to the
UDRP proceedings in case of a dispute with TM owner (power
to prescribe)
b. Limits remedial powers to the domain name databases (power
to enforce)
c. Compare to ACPA, which resolves jurisdictional issues by
providing for in rem jurisdiction over the domain name itself
5. Burlington Coat Factory v. Smartsoft
a. What must be shown for TM owner to take away DN from DN
registrant? See Rule above.
b. TM owner vs. domain name registrant. Sounds like trademark
law but it is not a law. Promulgated by ICANN.
6. UDRP and Free Speech
a. If UDRP were, e.g., federal legislation in United States, its
passage/implementation would be checked by
i. substantive check of 1A/independent judicial review +
ii. procedural checks embodied within legislature.
b. Other countries also impose checks on TM legislation.
7. ICANN enjoys power to establish policies for resolving speech-related
disputes between TM owners and DN holders
a. Implemented via adoption of Uniform Dispute Resolution Policy
governing removal/transfer of ownership of domain name to
trademark owners
8. Defenses to Cyber-Squatting
a. Show that the domain name owner has rights or legitimate
interests to the domain name. If any of the following
circumstances can be shown by the domain name owner to
exist, the domain name owner should win the UDRP arbitration:

25
 i. Before any notice to the domain name owner of the
dispute, the domain name owner's use of, or
demonstrable preparations to use, the domain name or
a name corresponding to the domain name in
connection with a bona fide offering of goods or
services; or
ii. The domain name owner (as an individual, business, or
other organization) has been commonly known by the
domain name, even if the domain name owner has not
acquired any trademark or service mark rights; or
iii. The domain name owner is making a legitimate
noncommercial or fair use of the domain name, without
intent for commercial gain to misleadingly divert
consumers or to tarnish the trademark or service mark
at issue.
iv. Anticybersquatting Consumer Protection Act (ACPA): Domestic TM Law to
Address DN/TM conflicts
1. Intended to give trademark and service mark owners legal remedies
against defendants who obtain domain names "in bad faith" that are
identical or confusingly similar to a trademark or service mark. If a mark
is a famous mark, the same remedies are available if the domain name
is identical to, confusingly similar to or dilutive of the mark.
2. 1999: TM owners are concerned about inability of US courts to secure
PJ over out-of-state and foreign DN registrants who register DNs
similar to their TM
3. Compare uBid v. GoDaddy case p. 142
a. Dct: No PJ over GoDaddy DN registrar
b. PJ even harder to establish over foreign registrant of infringing
DN
4. TM owners seek alternative to exercise of traditional PJ
5. Personal Jurisdiction – court’s power to apply judicial process to
defendant, jurisdiction to adjudicate over D. Two types:
a. in personam – jurisdiction over and based on the individual
defendant’s contacts with the forum state. When difficulties
arise in court’s assertion of in personam jurisdiction over D in
DN dispute, assert in rem jurisdiction over DN itself.
b. In rem jurisdiction – jurisdiction to adjudicate over D based on
D’s property located within the forum state. ACPA authorizes
exercise of in rem jurisdiction over domain name itself as
property:
i. in judicial district where DN registrar or registry is
located
ii. So the DN can form the basis for jurisdiction where
there is insufficient basis for jurisdiction over the D
personally.
6. The plaintiff must prove the following elements:
a. The Defendant has a bad faith intent to profit from that mark,
including a defendant name which is protected as a mark;

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 b. registers, traffics in, or uses a domain name that--
i. in the case of a mark that is distinctive at the time of
registration of the domain name, is identical or
confusingly similar to that mark;
ii. in the case of a famous mark that is famous at the time
of registration of the domain name, is identical or
confusingly similar to or dilutive of that mark; or
iii. is a trademark, word, or name protected by reason of
18 U.S.C. § 706 (the Red Cross, the American National
Red Cross or the Geneva cross) or 36 U.S.C. § 220506
c. Remedy: The Act authorizes a court to order the forfeiture or
cancellation of a domain name or the transfer of the domain
name to the owner of the mark. In lieu of actual damages, the
plaintiff may elect statutory damages and the court has
discretion to award damages of not less than $1,000 and not
more than $100,000 per domain name, as the court considers
just. 15 U.S.C. § 1117(d).
i. The remedies in an in rem action for cybersquatting
are limited to a court order for the forfeiture or
cancellation of the domain name or the transfer of the
domain name to the owner of the mark. Money
damages are not available.
7. When Would a Trademark Owner Sue Under the ACPA Instead of Filing
a UDRP Complaint?
a. In general, a trademark owner will sue under the ACPA when
the trademark owner seeks any remedies in addition to
canceling or transferring the domain name. For example, if the
trademark owner seeks money damages in addition to the
domain name, the mark owner must bring an ACPA lawsuit.
b. Another reason to use the ACPA is to avoid the time and
expense of a UDRP action when the trademark owner suspects
the cybersquatter would "appeal" the results of the UDRP
action. After an adverse ruling in a UDRP action, the
cybersquatter has ten days within which to bring a lawsuit to
prevent the transfer or cancellation of the domain name. If you
think the cybersquatter will challenge an adverse UDRP ruling, it
makes sense to skip the procedure and go straight to court.
8. Cable News Network v. Cnnews.com, 286-89
a. Facts
i. CNN sues Maya, Chinese company for registration of
CNNEWS.COM
ii. Maya registered CNNEWS.COM with NSI, Virginia
company then acting as DN registrar for .COM
iii. CNN asserts jurisdiction over Maya in VA under ACPA’s
in rem provisions
b. Statutory pre-requisites for ACPA’s in rem provisions?
i. Where is action brought? Virginia
ii. Would in personam PJ exist over Maya?

27
 1. Targeting analysis? See Young v. New Haven
and ALS Scan p.141
2. What is CNNEWS’ target audience? People in
China
3. Business transacted outside of China? None
iii. Constitutional pre-requisites for jurisdiction over
domain name?
1. True in rem – where court adjudicates property
rights corresponding to the property in question
for every potential rights holder
2. Quasi in rem I – where court allocates property
rights against particular named persons – e.g.,
action to quiet title against another individual’s
claim
3. Quasi in rem II – where court address rights of
persons in a thing but underlying claim is
unrelated to the property that provides basis
for jurisdiction *** must undertake min.
contacts analysis
a. Shaffer v. Heitner: jurisdiction based on
location of stock shares invoked to
compel appearance of owners in
unrelated matter
9. GlobalSantaFe v. Globalsantafe.com, 289-300
a. Facts: Plaintiff prevailed in an in rem suit under the ACPA
against a domain name owned by a Korean individual, and the
court ordered VeriSign, as the .com registry, to transfer the
domain name to plaintiff. Plaintiff then obtained an amended
order directing both VeriSign and the Korean-based registrar to
transfer the domain name. The domain name owner later
obtained an injunction from a Korean court barring the Korean
registrar from transferring the domain name to plaintiff. As a
result, plaintiff sought a second amended order from the U.S.
court directing VeriSign to cancel the domain name until the
name was transferred to plaintiff.
b. In rem actions under the ACPA is proper only if there is no P/J
over the registrant in any district: The court initially found that
ACPA jurisdictional requirements were met and that the
defendant’s registration of the domain name clearly violated
the ACPA. Accordingly, plaintiff was entitled to either transfer
or cancellation of the domain name under 15 U.S.C.S. §
1125(d)(2)(D)(i).
c. No UDRP action because not binding and Park could appeal
d. Regarding plaintiff's requested remedy of cancellation, the
court discussed three principal means of canceling a domain
name:
i. the registrar issues a delete command to the registry,

28
 ii. placement of the domain name in REGISTRY-HOLD
status by the registry by removing the name from the
TLD zone file, and
iii. the deletion of registration information in the registry
database and removal of the domain name from the
TLD zone file unilaterally by the registry.
e. Comity did not provide grounds for abstention because the
Korean and U.S. proceedings were not concurrent, the Korean
court proceeding was intended to frustrate the judgment of the
U.S. court, and the judgment supported significant U.S. public
policy.
f. The court therefore ordered VeriSign to disable the domain
name until it was transferred to plaintiff by eliminating the
currently associated domain name server IP numbers from the
TLD zone file.
g. Jurisdiction in VA. Is this case different from CNNews case in
terms of substantive basis for jurisdiction?
i. Maya never targeted VA BUT Mr. Park does infringe
copyright intentionally
ii. CN case had VA registry and registrar. Mr. Park has
Korean entity as his registrar. He can't help it if the only
registry is in VA.
h. How could Park have avoided jurisdiction in the U.S.?
i. He should have stayed away from .com TLD and done
.kr country level domain name.
ii. How and by whom should conflicts btw TM owners and DN holders from
different countries be resolved?
1. US courts, applying traditional and new TM laws
a. Jurisdiction problems and solutions (ACPA)
2. ICANN
a. Applying the UDRP
b. Accountability and representation issues
c. Protection of “fundamental” (U.S.) rights/free speech?

III. Unit Three: How to Regulate, 301-3

Chapter Five: Problems of Legal Versus Technological Regulation, 303
a. Sec. 106
a. Subject to section 107 (fair use) and other limitations. . . © owner enjoys exclusive right
to :
(1) to reproduce;
(2) to prepare derivative works/adaptations based upon the copyrighted work;
(3) to distribute copies . . . to the public.
b. Traditional rights
Copyright Act Basics, Course Supp. 25-26 – PRE DMCA BALANCE

29
a. Sony Corp. of America v. Universal City Studios, 334-39
1. Imported the “staple article of commerce” doctrine from patent law into copyright law –
if a device is capable of substantial non-infringing uses it is not contributory
infringement, but may be blocked if its only use is infringement. Big question is whether
this is still good law since the DMCA, with its “primarily designed” standard.
i. Direct infringement: the guy at home copying the program.
ii. Secondary infringement:
1. Knowledge of the infringement, and
2. Materially aiding it.
iii. Vicarious infringement:
1. Having the right to control the infringer, and
2. Materially benefiting from the infringement.
2. Sony defense: If VCRs are “capable of commercially significant noninfringing uses,” their
mere manufacture or sale is not sufficient to constitute contributory infringement even
if the VCRs were used by their owners for infringing uses.
i. Authorized uses
ii. Unauthorized uses
3. Fair use defense -- Consider 4 factors from Sec. 107:
i. The purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
ii. The nature of the copyrighted work;
iii. The amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
iv. The effect of the use upon the potential market for or value of the copyrighted
work.
b. Section 1201 of the Digital Millennium Copyright Act, 340-42

30
 i. Illegal to (directly) circumvent an access control device that controls access to a
copyrighted work i.e., to bypass, deactivate, remove or impair a technological
measure that effectively controls access to a copyrighted work. 1201(a)(1)
[Anti-circumvention provision]
ii. Illegal to traffic in technology primarily designed/marketed/purpose to
circumvent access control devices that control access to copyrighted works.
1201(a)(2) [Anti-trafficking provision]
iii. Illegal to traffic in technology primarily designed/marketed/purpose to
circumvent copy control devices that control copying of copyrighted works.
1201(b)(1) [Anti-trafficking provision]
iv. “Traffic in” includes “manufacture, import, offer to the public, provide, or
otherwise traffic in”, per 1201(a)(2) and 1201(b)(1).
2. Defenses (Exceptions and Limitations)
i. Not illegal to circumvent “copy control” device
1. Allowance for fair use…
2. But where will you get the technology to do so?
ii. No general fair use exception to anti-circumvention (or anti-trafficking)
provisions.
iii. Some exceptions for: (Page 324)
1. library/educational institution use;
2. federal/state law enforcement;
3. reverse engineering in order to achieve interoperability with other
programs
4. encryption research
iv. Fair use/Section 107 does not appear to be a defense to any 1201 violation (but
see language in 1201(c)).
v. But, 1201 carves out several narrow categories of exceptions for specific fair-use
type activities.
3. Public policy concerns: DRM allows for monopoly to become total.
i. Pros?
1. Makes more content available as people put it online.
2. Allows for different pricing – iTunes vs. iTunes Plus.
ii. Cons?
1. Easy to make people pay for what they’d have the right to do anyway!
2. Shifts control from copyright law to adhesion contracts.
3. Prevents use after content becomes public domain.
4. Often used for platform locking. iPods, Lexmark printers.
4. DRM doesn’t always work, but usually does. DMCA criminalizes attempts to get around
it.
i. Real Networks v. Streambox, 343-48

31
 1. Holding: Sony “substantial non-infringing uses” doctrine provides no
safety for circumventing devices under the DMCA.
c. Peer-to-Peer File Sharing, 350
1. A&M Records v. Napster, 350-59
i. Difference between Sony and Napster
1. We are bound to follow Sony and will not impute the requisite level of
knowledge to Napster merely b/c peer-to-peer file sharing technology
may be used to infringe.
2. If a computer system operator learns of specific infringing material on
his system and fails to purge such material from the system, the
operator knows of and contributes to direct infringement.
3. Napster had actual knowledge that specific infringing material is
available using its system, it could have blocked access to the system
by infringing users, and it failed to remove infringing material - Sony
defense is inapplicable.
ii. Napster Defenses:
1. Direct infringement by users
2. Right and ability to control the infringing activity
3. Direct financial interest/benefit from infringing activity
iii. Holding: Court doesn’t buy Napster as fair use, “sampling of music for later
purchase,” or space-shifting.
iv. Contributory infringement:
1. Knew of the infringement – had the server.
2. Materially aided or induced it – allowed them to find each other.

32
 v. Vicarious infringement:
1. Financial benefit. Sold ads because so many people were there because
of the infringement.
2. Supervision. Terms of use allowed them to terminate accounts or
refuse service.
vi. But how much power over the users did they really exercise? Would have taken
an enormous number of people to supervise everyone – a right doesn’t confer
an ability!
2. MGM v. Grokster, 360-77
i. Inducement liability theory: “One who distributes a device with the object of
promoting its use to infringe – as shown by clear expression or other affirmative
steps taken to foster infringement – is liable for resulting acts of infringement by
third parties.”
1. Sony safe harbor will no longer help: Where evidence goes beyond a
product’s characteristics or the knowledge that it may be put to
infringing uses, and shows statements or actions directed to promoting
infringement, Sony will not save D – regardless of substantial
noninfringing uses.
ii. Cites:
1. Grokster’s attempts to attract known infringers
2. Making money on high volumes of customers, which high volume was
brought by infringement
3. Lack of attempt to filter copyrighted material (only relevant where there
is other evidence of inducement)
iii. Defenses:
1. Grokster’s contributory © liability
a. Actual or constructive knowledge of infringement by users
i. No – b/c of decentralized architecture of sw
b. Material contribution to infringement by users
i. No – b/c users themselves searched for files
c. Sony defense
i. Distribution of commercial produce capable of subst.
noninfringing use cannot give rise to contrib. liability
ii. Grokster sw is capable of subst. noninfringing uses
iv. Distinguish Sony from Grokster
1. Sony was about limitations on imputing/inferring culpable intent
2. Here, there’s no need to infer culpable intent b/c there’s evidence of
actual intent to induce infringement
v. Current state of the law:
1. If you look like you’ve induced, you’re liable. Grokster.
2. If no inducement, look for contributory or vicarious infringement. Sony.
3. If no circumvention of DRM, then argue substantial noninfringing uses.
Sony. If circumvention, this won’t work. Might not work anyway –
should have worked in Grokster but didn’t.

33
Chapter Six: Problems of Intermediaries, 393-94
1. Secondary Liability for Copyright Infringement: The Common Law Backdrop,
- Religious Technology Center v. Netcom On-Line Comm. Serv., 458
- Section 512 of the Digital Millennium Copyright Act, 467
- Viacom v. YouTube, 474

2. Intermediary Control of Identity and Anonymity, 394

- In re Subpoena Duces Tecum to America Online, 397
- Doe No. 1 v. Cahill, 399
- Sony Music Entertainment v. Does 1-40, 412

3. Intermediary Liability for Online Conduct, 416

- Ira S. Bushey & Sons v. U.S., 417

4. Secondary Liability for Defamatory Content: The Common Law Backdrop, 420
- Cubby v. CompuServe, 420
- Stratton Oakmont v. Prodigy, 423

5. Section 230 of the Communications Decency Act, 426

- Zeran v. America Online, 429
- Blumenthal v. Drudge, 435
- Chicago Lawyers Committee for Civil Rights under Law v. Craigslist,
- Fair Housing Council of San Fernando Valley v. Roommates.com, 444

6. Pressures for Reform

- Lemley, Rationalizing Internet Safe Harbors, 482
- Tushnet, Power without Responsibility: Intermediaries and the First
Amendment, 488

Unit Four: What to Regulate, 519.

Chapter Seven: Regulating Speech, 521
1. Introduction, 521
A. What is “Speech”? 522
- Universal City Studios v. Corley, 522
B. Government Regulation of Sexually Explicit Speech, 531
- Ginsberg v. New York, 533
- FCC v. Pacifica, 53
- Sable Comm. of Calif. v. FCC, 543
- Renton v. Playtime Theatres, 548
- Reno v. ACLU, 552

C. Filtering and The First Amendment, 566

Ashcroft v. ACLU, 567
Lessig, Code and Other Laws of Cyberspace, 578
U.S. v. American Library Association, 582
a. Traditional public forum
b. Designated public forum -

34
 c. Non-public forum – government-owned property

Pennsylvania Internet Child Pornography Act, 597

Center for Democracy and Technology v. Pappert, 599

- International Considerations:
- About Filtering, 611
- Bambauer, Cybersieves, 613
- Notes and Questions, 614
- Dow Jones & Co. v. Gutnick, 617
- Notes and Questions, 622

35