CYBERSPACE LAW
Intro to Cyberspace
– Intro + History of the Internet –
o Common Traits of internet:
§ organicness
§ pervasive/growing/unbounded,
§ decentralized,
§ anarchy,
§ different “reality” that’s non physical.
§ Has own code/rules (figuratively – has special space + literally – governed by own codes)
– Debates over how internet should be regulated.
o Evolution of View the Web is the Wild West – started w/ defense dept, then to universities, so it was research oriented among digerati as a way of communicating research info solely among themselves (that required some technical expertise), gave them sense that “this is something we own” that we will self police, so no one can control it, we can exchange info for free, that shaped Barlow’s + early view of Web
o Barlow – Decl of Indep of Cyberspace –radical view: place of freedom (wild west) where govt cant prevent us from doing what we want b/c I users don’t consent to be governed + mind is free so I is just a big brain w/ info exchanges that cant be governed.
– SC’s views that are questionable re Internet
o Uses outdated statistics of # of users
o Outdated view that u must navigate to porn sites in order to find it (don’t get to em by accident).
o Tries to analogize I to something theyre familiar w/ – Says internet is more like print media (less regulation b/c u have make an effort to go access it) THAN broadcast media (more regulation of speech b/c people can just have it on + kids can accidentally see something, more pervasive).
§ gotta ask is this a good analogy?
– Development – ICAN decided that cos can buy new top level domain named dot microsoft or dot apple + everyone else is stuck w/ dot com. Charging six figures (reasonable) to get one of these names(Rat – theyre running out of network addys) and in other langs/can use non Roman characters.
o Will lead to gold rush for less popular cos to get that domain name. and might screw over those who registered say “porn.com” b/c now u can buy dot.porn.
Personal Jurisdiction over Internet Related Activities:
– Internet Q – when + under what circs can someone be sued in a state where the only connection they have w/ state is I. Q is whether something that occurs over I is enough to establish MC w/ forum state
Case
Inset
Compuserv v. Patterson
Zippo
Pavlovich
Ct + Year
DC. CT – 1996
6th Circ – 1995
DC PA – 1997
SC CA – 2002
Claim
TM Infring.
Decl Judgment
TM Infring
Trade secret misaproprtn
Facts
D is MA corp that does I advertising w/ no biz activities in CT, but ct says it has a 24 hr ad b/c its on the I + 10k people have access to I, so these people could see ad.
Sent software to Compuserv’s OH servers + K provision. Did this several times, also sold software to OH residents.
CA co w/ no facilities in PA runs info svc that sold subscriptions to 3k PA residents + have Ks w/ PA I providers.
D in TX w/ a website in which he posts algorithym by which u can decrypt this protection on DVDs. Sued in CA.
Pers jD?
Yes.
Yes.
Yes.
No.
Why/ why not?
Site is accessible in state constitutes ongoing advertising there + is thus MC.
MC, analogous to distribution center and shipping to OH.
Co. chose to have PA customers, so MC.
You didn’t directly target a CA entity.
Extras
Never overruled, but dubious b/c it’d do away w/ trad notions of personal jd – just by having a website, its commercial, ur subject to personal jD anywhere?
Several early cases like this said if server is in certain state + u sent something + it went thru that server, that’s MC, even tho u didn’t know server was in that state.
– narrow holding based on these facts.
Push-Pull Arg of D – (ct rejects) – all we have is website, we don’t force people to access it, they do from own free will, + theyre reaching out to us in CA; we’re passive. That’s the reason we got to PA.
– Sliding Scale – 3 Types of Websites:
1) passive – just posts info – no personal jD. (i.e. cafe)
2) interactive– (intermediate) – personal jD depends on how its interactive + what it does (i.e. blog or news where u can add ur own comments).
3) blatant biz –enter into commercial transactions (i.e. amazon + zippo here could be sued in any state its doing biz) -pers jD- yes.
– SS test would’ve found Inset site passive + thus no personal jD. That’s why Inset (early) is dubious
Uses **Effects test (not SS) – does having website w/ effect in CA constitute MC?
(arg was that b/c movie industries would be most affected by the misappropriation.)
If u use Zippo test, it would be passive + thus no personal jD right off, but they use effects test + deny personal jD on that ground.
– **effects test will be most
COPA by
· limiting it to commercial materials (b/f the big problem in CDA was that it applied to commercial and non commercial, so u had problem w/ parents getting into trouble w/ images displayed on their screen or parents sending an email re sex ed.)
· changed age from under 18 to under 17 and
· tried to provide more specific def of prohibited materials (not just the broad “indecent” that bother SC in Reno).
§ Ashcroft v. ACLU (SC 2004) – COPA doesn’t pass strict scrutiny test + is thus unconst b/c there are less restrictive alts (i.e. filtering) than this law to prevent minors from getting porn on I. Ur preventing adults from being able to look at materials they have a const right to.
· Narrow – all theyre doing is upholding inj until theres a full trial.
· Scalia (on own): we don’t even have to analyze it, if its only regulating obscenity, its not under 1st Am, so no strict scrutiny, so it’s a rational basis.
· Breyer, Rehn, O’Conn – strict scrutiny should be applied but think so b/c to say filtering is a better alt is crazy b/c it has problems + its not a legit alt, it’s all up to parents + who knows whether parents will use it/ can afford it, so it’s not really an alt.
o CPPA – (Child Porn Prevention Act) – criminalizes having computer generated images of what appeared to be kids engaged in sex acts.
§ Many cases upheld constitutionality of this act, UNTIL 9th Circ + SC (Stevens) both decided it was unconst b/c the justification for upholding previously was that u didn’t want to exploit kids, + here no one uses live kids, only virtual images. Then, new law was passed in House in response w/ very same provisions, but didn’t pass Senate.
· Another law passed (PROTECT Act) – still has some of the watered down provs of that bill à constitutionality hasn’t been challenged.
o COPPA– restricts the type of info that commercial website who knows many kids under
