Internet Law — Kightlinger Fall 2012
I. INTRODUCTION TO THE STUDY OF CYBERSPACE LAW
A. The Study of Cyberspace Law
1. Frank Easterbrook, “The Law of the Horse”
a. Easterbrook believes that Internet Law classes are essentially “Law and the Horse.”
i. His idea: No such thing as the law of the horse. Rather, it’s made up of a bunch of different areas of law that each effect horses/internet, therefore it’s insufficiently general
a. aIt’s a special set of laws that govern many different areas such as K law, prop law, insurance law, etc.
b. “Law and …” courses should be limited to subjects that could illuminate the entire law.
c. “Inch deep, mile wide” view of the horse Þ Concern in shallowness of classes because the information would be too vast to cover in one course.
i. Shallowness + Know Clue = Cluster Fuck
ii. Easterbook thinks context should be in broader aspects of what we know about
d. Problems with Cyberspace Law
i. Rapid change of the law.
a. Easterbook thinks this aids to the ignorance of lawyers. It seems hard to make a course out of a topic that seems so unstable.
b. If we’re ignorant about the law of the internet, it seems dangerous for us to intervene and make rules about it and try to regulate it
e. How would Easterbrook Fix the Problem?
i. Make the rules very clear
a. This promotes bargains so that everyone is on the same page, people would essentially be working together.
ii. Create clear property rights where there are none
a. This also promotes bargains
b. There is a big debate on the extent to which the Internet should be owned.
iii. Facilitate the formation of bargaining institutions
a. So that people can actually K around the property and make sure it’s distributed in the proper way
2. “The Law of the Horse” — Lawrence Lessig
a. Disagrees with Easterbook Þ He doesn’t think that Internet law is the “Law of the Horse.”
b. Lessig thinks that Internet Law is regulated by four modalities
a. It orders people to behave in certain ways; it threatens punishment if they do not obey.
ii. Social Norms
a. They constrain behavior with the threat of ex post sanctions to enforce the norms. They constrain, and thus regulate.
a. They regulate by price. Price structures often constrain access in some situations. Some web sites charge for access, and advertisers reward popular sites.
a. The Code, or software and hardware that make cyberspace the way it is constitutes a set of constraints on how one can behave.
1. Constrains behavior by making other behavior possible.
c. Privacy Issues
i. Lessig thinks we can change the law of the Internet so that there are no privacy issues.
ii. The Internet is a moving target Þ It is subject to change if we choose to change it.
a. This makes the Internet more interesting, and thus, not the Law of the Horse.
d. Most important point: at the end of the day, we made the internet. A horse is a horse, but that’s not the case with the internet
i. We can not only think of the net as subject to laws but also an architecture that could literally be rebuilt to the way we want it to run.
a. Just about everything about the internet could in fact be changed
ii. Thus, we shouldn’t treat the internet as a fact of nature like a horse
3. Raymond Ku, A Brave New Cyberword?
a. Cyberspace is important because it represents an opportunity to examine ourselves and reinvent ourselves and society.
b. Cyberspace gives the opportunity to break bonds with the old law and customs and to create new institutions and new experiences. I.e., it makes us think about questions like,
a. is this a signature or isn’t it?
b. Is this a legal document or isn’t it?
c. Should we keep a log of everyone who’s clicked “I accept” and the terms they agreed to at a given time? Etc. etc.
ii. This is why he believes we should study Internet Law.
4. Cyberspace Law as the Regulation of Information
a. Internet Law is inherently about the regulation, control, and dissemination of information in a world mediated by computers.
b. The study of cyberspace is thus the study of regulation of information in a world interlinked and mediated by computer networks.
5. Notes about the Internet
a. Web 2.0
i. Is a high degree of interactivity between participants; it’s user generated Internet.
a. Examples: YouTube, Facebook, MySpace
ii. Ku thinks that Web 2.0 makes the point of apply the law all that more interesting
a. It underlines the fact that we are dealing with something that is malleable and that it can be regulated in a sense by the people who use it.
b. Web 2.0 is a move away from the more passive Web 1.0
i. Where Internet users passively received information posted by governments, educational institutions, businesses, and larger media organizations.
II. REGULATING CYBERSPACE
A. Cyberanarchy v. Cyberorder
1. John Perry Barlow, Cyberspace Declaration of Independence
a. Former Grateful Dead lyrist wants the government to stay out of regulating the Internet, and wants it to remain “free.”
2. Dan Hunger, Cyberspace as Place and the Tragedy of the Digital Anti-commons
a. Tragedy of Commons
i. The rationale: in a situation where multiple people, acting independently, and solely for their own self-interest, will ultimately deplete a shared limited resource even when it is clear that it is not in everyone’s long-term interest for this to happen.
ii. It would only make sense to hold back if everyone else holds back, thus, it would be irrational for one person to not maximize unless all agree to cut back.
iii. “non-rivalrous good” Þ Everyone can use it without rivaling one another.
b. Tragedy of the Anti-commons
i. Describes a coordination breakdown where the existence of numerous rights holders frustrates achieving a socially desirable outcome because so many people have rights of exclusion, nobody can use the property effectively & efficiently.
ii. Not the most efficient use creates a tragedy of the anti-commons
a. Propertizing creates the use of sub-optimal usage
b. How do you allocate efficiently?
1. Easterbrook would say allow people to buy property, and thus, contracts would work it out.
2. But not everyone has the ability to make these deals.
iii. Point with internet: the loss of common space on internet could lead to degradation of content on the intenet
a. Happens by private ownership and charging people too much to use the net
B. Comments & Questions pp. 28-31
1. Hunter Suggests…
2. Commons-like character & tragedy of anticommons
3. What basis? Cyberspace wasn’t the same thing as real space, and so nobody had sovereignty to regulate it
a. How did Goldsmith counter? Says cyberspace wasn’t descriptively different from real space – transactions in one weren’t different from transactions in the other
4. Arguments for and against cyberspace as a “place”:
a. For: words we use to describe the internet are spatial in nature
b. Against: no tangible place, grows through users’ collective actions, not like infrastructure that a city builds
C. Personal Jurisdiction
1. The Supreme Court and Due Process
a. Three Kinds of Jurisdiction. Note: We’re dealing SOLELY with adjudicative
a. Apply domestic law to some entity outside of the domestic borders
a. Can the court adjudicate with respective to different players before the court? Most like the defendant. Does the court have the jurisdiction over the party?
a. Does the government authority / ability to enforce its laws outside of its borders
1. The answer to this is usually “no.”
2. The FBI can’t enforce US law in any country outside of the US
b. Basic Juris
b site, Instruction purposefully availed itself in Connecticut where Inset is located. Instruction is now everywhere because of the Internet. So by this reasoning, a business with a website could be hauled into any forum.
d. Effect on Business?
1. This could increase litigation costs for the companies, and more would be weary about putting things on the Internet and having a Web site.
2. This could deter small businesses.
e. You can defend Inset by saying that it calls the bluff on companies. If you want to play with big dogs nationally, you should have to deal with the ramifications of being haled into states throughout the nation.
ii. Zippo Manufacturing Co. v. Zippo Dot Com, Inc.
a. Rules of Law:
1. Three-pronged Test for Specific Jurisdiction over non-resident defendant:
a. The defendant must have sufficient “minimum contacts” with the forum state
b. The claim asserted against the defendant must arise out of those contacts; and
c. The exercise of jurisdiction must be reasonable
2. Reasonableness Test: When determining the reasonableness of a particular forum, the Court must consider the burden on the defendant in light of other factors:
a. The forum state’s interest in adjudicating the dispute;
b. The plaintiff’s interest in obtaining convenient and effective relief, at least when that interest is not adequately protected by the plaintiff’s right to choose the forum;
c. The interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and
d. The shared interest of the several states in furthering fundamental substantive social policies
3. Zippo Sliding Scale Test:
a. The likelihood that personal JUR can be Constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the internet. The sliding scale is consistent with well-developed personal JUR principles. At one end of the spectrum are situations where a D clearly does business over the internet. If the D enters into Ks with residents of a foreitn JUR that involve the knowing and repaeated trsansmission of computer files over the internet, personal JUR is proper At the opposite end are situations where a D has simply posted information on an internet web site which is accessible to users in foreign JURs. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise of personal JUR. The middle ground is occupied by interactive web sites where a user can exchange info with the host computer. In these cases, the exercise of JUR is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the web site…Web sites are divided into 3 cateogories:
i. Highly Interactive/ Commercial Web sites: Do a substantial volume of business over the Internet, and through which customers in any location can immediately engage in business with the Web site owner, definitely provide a basis for PJ.
ii. Wholly Passive Web sites: Merely provide information, will almost never provide minimum contacts for PJ. Such a Web site will only provide a basis for PJ if there is an intentional tort, such as defamation on the Web site, and if it is directed at the jurisdiction in question.
iii. In-betweener Web sites: Permit the exchange of information between the Web site owner and visitors, may be subject to PJ, depending on the Web site’s level of interactivity and commerciality, and the amount of contacts that the Web site owner has developed with the forum state due to the availability of the Web site within the jurisdiction.