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Cyberspace Law
Santa Clara University School of Law
Goldman, Eric

Cyberspace Law
Spring 2011
Federal Jurisdiction
Commerce Clause
Article 1 § 8 cl. 3
àUniform system-in order to nurture a common market among the States, free from trade barriers
Congress can-
A.    regulate the channels of interstate commerce
-control the items that have been shipped… or moved through interstate commerce (phones, mail…)
B.     congress to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities
-regulations of the RR…
C.     congress has the power to regulate local activities having a substantial affect on interstate commerce
-if economic or commercial in nature, then taken in the aggregate
àLook to see if the activity has traditionally been the province of the states
limits of Lopez
jurisdictional element -a term of art for language in a statute that ensures that, on a case-by-case basis, the activity regulated by Congress has a connection to interstate commerce
            role of congressional findings-(Morrison) are not in themselves sufficient
-In our modern society, congress could find that anything has an effect on IC, thus, to limit the congressional commerce power, factual findings are not sufficient
Limits of Garcia
à Congress can regulate State Action under the Commerce Clause only if the regulation is applies equally to both private parties and the State
Dormant Commerce Clause
                                                Implied thru preemption by the Commerce Clause
                                àState laws are unconstitutional if they place an undue burden on IC
Ø  Facial discrimination (carries a strong presumption of invalidity)
Ø  Discrimination in purpose of effect (facially neutral)
-valid IF the effects(burdens) of the statute on IC are merely “incidental” not “clearly excessive in relation to the putative benefits” -Pike
If yes, thenà
Rigorous Scrutiny
1.      The regulation must be for a legitimate state end
2.      there are no other lesser restrictive means available
If no, thenà
Does the law unduly burden IC?
àweigh burdens(of the statute on IC) v. benefits(to the state)
                               argue both tests
àwhen NY passed a law regulating the dissemination of articles that harmful to minors within NY, in invalidating the law, the court held that the had an extraterritorial effect because it effected people outside of NY trying to sell adult materials online, who did not have geolocation technology available (at the time), nor reliable age verification methods.
àin a dormant commerce clause challenge to a WA anti-spam statute proscribing misleading spam email procedures, the Court upheld the provision explaining that it did not discriminate against IC, and the burdens to IC of merely requiring honest and fair dealing (no spoofed IPs…) were outweighed by the state benefits of preventing spam email and its accompanying harms.
                -People v. Heckle
à in a dormant commerce clause challenge to a CA anti-spam statute proscribing misleading spam email procedures, the court upheld the provision under Heckle despite the fact that the CA law conflicted with requirements of a PA law.
-Ferguson v. Friend Finder
Personal Jurisdiction
1.       Is there an applicable Long Arm Statute
a.       Must extend jxn over D
                                                                           i.      Read narrowly
                                                                          ii.      Develop thoroughly
b.       If notàgo in rem/quasi in rem
                                                                           i.      Need statute
2.       Are there Minimum Contacts
a.       Purposeful availment
                                                                           i.      Systematic and continuous contact within forum
                                                                          ii.      Substantial contact (quality and nature)
                                                                        iii.      Not irregular or casual
                                                                        iv.      Not from the unilateral act of a third party/volitional
b.       Specific vs. general jxn
                                                                           i.      If the claim does not arise out of contact (general jxn) high level of contact required
3.       Does the bringing of defendant into forum offend traditional notions of fair play and substantial justice
a.       Due process/14th amendment
                                                                           i.      The burden on the D
                                                                          ii.      The interests of the forum state
                                                                        iii.      The p’s interest in obtaining relief
                                                                        iv.      The interstate judicial system’s interest in obtaining the most efficient resolution of controversies(p state v. D state)
b.       The party must reasonably anticipate being taken into court in said jurisdiction
                                                                           i.      Mere foreseeability that the product would end up within said forum is not enough
Specific jxn (relationship needed)-if a person:     (but for test)
                -commits a single act (and the claim arises out of it)
                -transacts occasional business (and the claim arises out of it)
general jxn (no relationship needed)-may be established if a person/company:
                -has continuous and systematic contacts
or            -is doing substantial business –usually extensive facilities, contact, market directions
or            -Conducts Harmful/pervasive activities
àwhen an Oregon record company used the same trademark as a South Carolina record store, in an infringement action in which the Oregon D challenged personal jurisdiction in South Carolina based on their Internet site, the court applied the Zippo factors to find the D was merely a web publisher, and not purposefully availing himself the benefits and protections of the forum state through his site, and therefore was not subject to personal jurisdiction there.
                -Millennium ent. v. Millenium music
Zippo Factors
                àthe jurisdiction is directly proportional to the commercial activity of the website's
                in order to conform with due process:
1)       the D must have sufficient minimum contacts with the forum state
a)       must act or transact within the forum
b)       by which he purposely avails himself to the benefits and protections of the forum
2)       the claim must arise out of or result from the contact
3)       exercise of jurisdiction must be reasonable
a) must comport with traditional notions of fair play and substantial justice
-Panavision at 1320
strongest contact                                                                                                 weakest contact
Conducting business over the internet
enters into K's that require the knowing and repeated transmission of computer files within the jurisdiction
       interactive website
        Passive website    
       (publication only)
                Personal jurisdiction is proper when:
1.       the D's intentional tortious actions
2.       expressly aimed at the forum state
3.       causes reasonably foreseeable harm to the p in the forum state
àwhen a MA and a NY club both had the same name, in an infringement action against the MA club, the court found that although the MA club had an interactive website that sold tickets, that the tix were only good in MA, thus insufficient availment to support personal jurisdiction.
àin a slip and fall case

                                -it was then treated as UCETA
Electronic Signatures in Global and National Commerce Act
                15 USC §§ 7001-31
-electronic signatures deemed valid (and K's cannot be contested based upon lack of a paper signature)
-proscribes disputing the formation of a K because electronic means were used in the formation or ratification
                                -no one is required to agree to use or accept an electronic transaction
–          a signature can be anything that indicates and intent to be bound
WHY copyright is threatened IN THE INTERNET CONTEXT
                1. The Internet is the perfect copying machine
                                -no costs of reproduction of materials
                                -no loss of quality
2.       people are socialized to make minor infringements
-it is ez
3.       companies are making rational decisions to infringe
-cheaper to infringe than to comply
4.       the marginal price of copyright works is almost completely diluted
-so many people are giving away works
                article 1 §8, cl. 8
                                for the purposes of promoting arts and sciences, authors and scientists shall have limited protection for their respective works and writings
                àcopyrightable subject matter 17 USC § 102
                                                original-created by the author
                                                fixed-found in the word writing
                àfactual compilations  17 USC § 103
-selection, arrangement, and coordination (is copyrightable subject matter)
                àindependent simultaneous creation permitted
                                                idea expression dichotomy-17 USC § 102b  
                àExclusive rights 17 USC § 106
copyright owner has the exclusive rights to do or authorize:
(1) reproduction of copies or phonorecord
(2) derivative works
(3) to distribute lease or lend
(4) Public performance of literary, musical, dramatic, and choreographic
     works, pantomimes, and motion pictures and other audiovisual works
(5) Public display of literary, musical, dramatic, and choreographic
     works, pantomimes, and motion pictures and other audiovisual works
(6) in the case of sound recordings, to perform the copyrighted work
     publicly by means of a digital audio transmission.
                àMoral Rights 17 USC § 106A
                                Authored work -Life + 70
                                Work for Hire/Pseudoanonymous -95 + P or 120 + C
                àMeans of infringement
1.       direct
a.       access to copyrightable subject matter
b.       substantial similarity
2.       contributory
One who with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another
3.       vicarious
a.       the right and ability to control the infringer’s actions
b.       receives a (direct) financial benefit from the infringement
direct-could be banner ads, charge per download, or subscription fee 
financial benefit-can be anything of value
4.       criminal (17 USC 506)