Internet Law

§ Assent:

a transaction, in order to be a contract, requires a manifestation of agreement between the parties. A consumer's clicking on a download button does not communicate assent to contractual terms if the offer did not make clear to the consumer that clicking on the download button would signify assent to those terms.

For older electronic communi-cations and those held by an RCS,

a war-rant is also required, unless the Govern-ment is willing to provide notice to the subscriber or customer. § 2703(b)(1)(A)

when is substantial nexus established under Complete Auto test ?

"[S]uch a nexus is established when the taxpayer [or collector]'avails itself of the substantial privilege of carrying on business' in that jurisdiction." (Wayfair)

Microsoft and other providers of ECS and RCS are

''service providers,''

512(a) transitory digital network communications.

( just sending the material) = just transmitting just sending the copyrighted material under the Copyright Act. There are many ways you can infringe. You can infringe if you make a copy. You can also infringe if you If you transmit if you distribute a copy. If you publicly perform a copyrighted work but youre not liable for transmitting if the transmission was initiated by somebody else not liable if youre not keeping a copy of it on system example if storing the material not liable unless have actual knowledge of the infringement of which specific thing needs to be taken down. if not precise about which specific thing is infringement then no duty to take it down and immune.

GDRP requires companies to

(1) ask consumers whether they can collect their data;(2) answer promptly if asked what it'll be used for ; (3) disclose significant data breaches within 72 hours.

CFAA statute "provides two ways of committing the crime of improperly accessing a protected computer:

(1) obtaining access without authorization; and (2) obtaining access with authorization but then using that access

DMCA (3) Contents of counter notification.—To be effective under this subsection, a counter notification must be a written communication provided to the service provider's designated agent that includes substantially the following:

(A) A physical or electronic signature of the subscriber. (B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled. (C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled. (D) The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or taking it down

No provider or user of an interactive computer service shall be held liable on account of—

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1). * * *

People v. Lipsitz, 174 Misc. 2d 571, 663 N.Y.S.2d 468, 475 (N.Y. App. Div. 1997)

(rejecting a commerce clause challenge to application of consumer protection laws to an on-line business, on the grounds that the law was intended to regulate only local conduct)[.]

See, e.g., American Booksellers Found. v. Dean, 342 F.3d 96, 103 (2d Cir. 2003)

(striking down a Vermont law outlawing the knowing distribution of material harmful to a minor because residents of other states who post to the web would be subject to prosecution in Vermont);

adjudicative jurisdiction

(the power to hear and decide controversies),

prescriptive jurisdiction

(the power to regulate),

See, e.g., Ford Motor Co. v. Texas Dept. Of Transp., 264 F.3d 493 (5th Cir. 2001)

(upholding a Texas law that made it illegal for Ford to sell used vehicles via a website);

1.11.3, Is the Top Level Domain relevant in determining identity or confusing similarity

1.11.3 Where the applicable TLD and the second-level portion of the domain name in combination contain the relevant trademark, panels may consider the domain name in its entirety for purposes of assessing confusing similarity (e.g., for a hypothetical TLD ".mark" and a mark "TRADEMARK", the domain name would be confusingly similar for UDRP standing purposes).

2.5.3, Commercial activity

2.5.3 In the broadest terms, while panels will weigh a range of case-specific factors such as those listed above in section 2.5.2, judging whether a respondent's use of a domain name constitutes a legitimate fair use will often hinge on whether the corresponding website content prima facie supports the claimed purpose (e.g., for referential use, commentary, criticism, praise, or parody), is not misleading as to source or sponsorship, and is not a pretext for tarnishment or commercial gain.

Young v. New Haven Advocate

Alleged defamation by a local Connecticut newspaper of a Virginia prison warden. Warden was not mentioned in articles but argued that articles implied the warden was racist and encouraged the abuse of prisoners. Warden brought libel in a diversity action against Connecticut newspapers filed in the Western District of Virginia. Newspapers filed 12(b)(6) motion to dismiss complaint b/c no PJ. Newspapers argued do not derive any substantial revenue from goods used or services rendered in Virginia and no offices/employees in Virginia. Warden argued specific PJ over newspapers b/c contacts w/ Virginia. The allegation was that defamatory statements were made about a Virginia resident, effects of statements in Virginia , and published in Virginia via the Internet.

Whether the SCA Authorizes Enforcement of the Warrant as to Customer Content Stored in Ireland

Begin our analysis with an inquiry into whether Congress, in enacting the warrant provisions of the SCA, envisioned and intended those provisions to reach outside of the United States. If we discern that it did not, we must assess whether the enforcement of this Warrant constitutes an unlawful extraterritorial application of the statute.

Several broadband technologies are now widely available.

Beginning in the 1990s, many cable companies upgraded their systems to support two-way transmission of signals and now offer Internet access through cable modems. Meanwhile, telephone companies deployed digital subscriber line (DSL) technologies, which permit the transmission of a high-bandwidth digital signal over existing copper telephone wires. Satellite and fixed wireless providers now also offer broadband Internet access.

There are at least three [principal] means to achieve cancellation of a domain name.

First, the current registrar of the domain name can cancel a domain name by directing the registry to delete the registration information from the Registry Database. Second, the registry for the pertinent top-level domain can disable the domain name in that top-level domain by placing it on "hold" status and rendering it inactive. Third, the pertinent registry can cancel a domain name by acting unilaterally to delete the registration information without the pertinent registrar's cooperation.

· Hancock v. American Telephone & Telegraph Co., 701 F.3d 1248 (10th Cir. 2012): Facts: π= ind. who purchased U-verse in either FL or OK.; ∆=AT & T ; Southwestern Bell Telephone Co; and BellSouth Telecommunications, Inc. πs purchased U-verse. U-verse gave customers option to receive TV alone or bundle it with Voice and/or Internet for a discounted rate. 2 Π completed internet service registration process when arbitration clause included. 1 π completed reg before the AC but ∆ sent email saying if continue service then agreeing to AC. § TV/Voice terms® forum selection provision stating that, in the event of litigation, AT & T and U-verse customers "agree to submit to the ... jx of the courts located within the county of Bexar County, TX." · Standard practice of acceptance of tv/voice terms® A T&T technician provides the customer with a Welcome Kit, which contains a printed copy of the TV/Voice terms. The technician gives the customer an opportunity to review the TV/Voice terms before installation. The technician then displays an acceptance form on the technician's laptop through the GCAS web application. The acceptance form has a check box next to "Terms Of Service." § U-verse Internet service® diff terms of service w/ arbitration provision stating that AT & T and the customer "agree to arbitrate all disputes and claims ... based in whole or in part upon the [Internet service]." · Standard practice of acceptance of internet terms ® customer must create online registration process to activate the service and click an "I Acknowledge" button to accept the TV/Voice terms and technicians do not install U-verse TV/Voice service until customers accept the terms of service. o Issue: whether ∆s' standard practice for customer acceptance of U-verse terms can form binding contracts as a matter of law? o

Held: ∆' clickwrap agreements are of the type that are "routinely ... upheld."The clickwrap agreements are valid and enforceable under FL and OK law. o Analysis : § I- whether K formed? § R- "We apply state law principles to determine whether a contract has been formed. (service K) Courts evaluate whether a clickwrap agreement's terms were clearly presented to the consumer, the consumer had an opportunity to read the agreement, and the consumer manifested an unambiguous acceptance of the terms. See, e.g., Specht v. Netscape Commc'ns Corp., 306 F.3d 17, 28-32 (2d Cir. 2002). If a clickwrap agreement gives a consumer reasonable notice of its terms and the consumer affirmatively manifests assent to the terms, the consumer is bound by the terms. § A- distinguish from Specht · Here, ∆'s clickwrap agreements do not conceal the U-verse terms of service. "∆s' presentation of the U-verse TV/Voice and Internet terms is in stark contrast to the presentation of terms associated with the software download in Specht, where consumers had (1) no visible notice of accompanying terms, and (2) no indication that terms were being accepted. U-verse customers are given notice of the U-verse terms and must affirmatively manifest assent to the terms by clicking "I Acknowledge" and "I Agree" buttons." · Email: the email does not bury the notification of AC. Find that AT & T's e-mail sufficiently notifies customers that an arbitration provision has been added to the Internet terms. § C- ∆' standard practice gives U-verse customers sufficient notice of the TV/Voice and Internet terms of service, as well as an adequate opportunity to manifest assent to the terms. o This case shows where the steps to get to assent was excessive in comparison to specht.

ICANN

ICANN is a not-for-profit public-benefit corporation that initially reported to the U.S. Department of Commerce through a memorandum of understanding. ICANN's mission is to coordinate the Internet's complex naming system and ensure its stability and security. Specifically, ICANN coordinates the allocation and assignment of the three sets of unique identifiers for the Internet, including the domain name system or DNS.

Regulation Through Contracts

ICANN is able to impose new community policies on gTLD (Generic Top Level Domain) Registries and Registrars (and Resellers by proxy) through contracts it holds directly with them

The ICANN Value Chain

ICANN is at the top of the chain for allocating domain names to Registrants, through Registries, Registrars and in some case, Resellers.

What is ICANN?

ICANN is the Internet Corporation for Assigned Names and Numbers, a central quasi-regulatory body for some elements of the Internet's Domain Name System (DNS). It's a global not-for-profit organization, headquartered in Los Angeles. ICANN is often called the Internet overlord or considered the body responsible for running the Internet. It is not. ICANN (in conjunction with its subsidiary, IANA, the Internet Assigned Numbers Authority) is responsible only for the oversight and allocation of certain internet resources, primarily domain names, but also IP addresses and internet protocols. Most ICANN's time and resources, as well as the focus of most participants at ICANN, is on the domain name element.

Four of the most common geolocating technologies are

Internet protocol (IP) geolocation, WiFi network mapping, cell site geolocation, and GPS.

Google's monopoly in general search services has also given the company extraordinary power as the gateway to the Internet, which it uses to promote its own web content

It's not just searching and and giving you access to the products of third parties, it's developing its own products and it's giving them priority. That's the kind of conduct that is an issue.

5. Why did the FCC include the rule prohibiting unreasonable interference or unreasonable disadvantage to consumers or edge providers?

It is intended as a "catch-all" standard to fill gaps in regulatory coverage, and it is also anticipates and is intended to foreclose strategic behavior by BIAS providers that would undermine the open Internet. In the full Order, the FCC explains that the standard would be applied on "a case-by-case approach, considering the totality of the circumstances," and then the FCC provided a nonexhaustive list of factors that would be weighed: 139. End-User Control. A practice that allows end-user control and is consistent with promoting consumer choice is less likely to unreasonably interfere with or cause an unreasonable disadvantage affecting the end user's ability to use the Internet as he or she sees fit. * * * [P]ractices that favor end-user control and empower meaningful consumer choice are more likely to satisfy the no-unreasonable interference/disadvantage standard than those that do not. However, * * * we are cognizant that user control and network control are not mutually exclusive, and that many practices will fall somewhere on a spectrum from more end-user-controlled to more broadband provider-controlled. Further, there may be practices controlled entirely by broadband providers that nonetheless satisfy the no-unreasonable interference/disadvantage standard. * * * 140. Competitive Effects. * * * Practices that have anti-competitive effects in the market for applications, services, content, or devices would likely unreasonably interfere with or unreasonably disadvantage edge providers' ability to reach consumers in ways that would have a dampening effect on innovation, interrupting the virtuous cycle. As such, these anticompetitive practices are likely to harm consumers' and edge providers' ability to use broadband Internet access service to reach one another. Conversely, enhanced competition leads to greater options for consumers in services, applications, content, and devices, and as such, practices that would enhance competition would weigh in favor of promoting consumers' and edge providers' ability to use broadband Internet access service to reach one another. In examining the effect on competition of a256given practice, we will also review the extent of an entity's vertical integration as well as its relationships with affiliated entities. 141. Consumer Protection. The no-unreasonable interference/disadvantage standard is intended to serve as a strong consumer protection standard. It prohibits broadband providers from employing any deceptive or unfair practice that will unreasonably interfere with or disadvantage end-user consumers' ability to select, access, or use broadband services, applications, or content, so long as the services are lawful, subject to the exception for reasonable network management. For example, unfair or deceptive billing practices, as well as practices that fail to protect the confidentiality of end users' proprietary information, will be unlawful if they unreasonably interfere with or disadvantage end-user consumers' ability to select, access, or use broadband services, applications, or content, so long as the services are lawful, subject to the exception for reasonable network management. * * * 142. Effect on Innovation, Investment, or Broadband Deployment. * * * [P]ractices that stifle innovation, investment, or broadband deployment would likely unreasonably interfere with or unreasonably disadvantage end users' or edge providers' use of the Internet * * *. 143. Free Expression. * * * Practices that threaten the use of the Internet as a platform for free expression would likely unreasonably interfere with or unreasonably disadvantage consumers' and edge providers' ability to use BIAS to communicate with each other, thereby causing harm to that ability. * * * 144. Application Agnostic. Application-agnostic (sometimes referred to as use-agnostic) practices likely do not cause an unreasonable interference or an unreasonable disadvantage to end users' or edge providers' ability to use BIAS to communicate with each other. Application-agnostic practices do not interfere with end users' choices about which content, applications, services, or devices to use, nor do they distort competition and unreasonably disadvantage certain edge providers. As such, they likely would not cause harm by unreasonably interfering with or disadvantaging end users or edge providers' ability to communicate using BIAS. 145. Standard Practices. In evaluating whether a practice violates our no-unreasonable interference/disadvantage standard to protect Internet openness, we will consider whether a practice conforms to best practices and technical standards adopted by open, broadly representative, and independent Internet engineering, governance initiatives, or standards-setting organization. Consideration of input from technical advisory groups accounts for the important role these organizations have to play in developing communications policy. * * * As with other multi-factored legal standards (e.g., likelihood of confusion in trademark, fair use in copyright, reasonableness and proximate cause in torts, among many others), the evaluation of a particular practice is highly fact-intensive and requires careful consideration of the relevance of each factor.

Calder & Walden:

Need to show where injury felt + more connection w/ forum state beyond fact that P injured there. but the task is to find something that connects the defendant with the state other than just the fact that they caused injury to the plaintiff.

how does the CDA apply to taking down stuff?

No provider of interactive computer service shall be liable, on account of a- any action voluntary taken in good faith to restrict access. So taking down material is not going to create liability.

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

does "[t]he imposition on the seller of the duty to insure collection of the tax from the purchaser violate the [C]ommerce [C]lause?

No. There just must be "a substantial nexus with the taxing State." CompleteAuto, supra, at 279, 97 S.Ct. 1076.

Telephone facilities, however, are no longer the primary avenue for users to access the Internet.

Ordinary dial-up modems allow data to be transmitted at a maximum speed of 56 kilobits per second. Newer technologies offer much higher bandwidth connections.

Title Two "common carrier" obligations that are imposed by law on providers of telecommunications services as well as the requirements that providers allow third-party equipment to be connected to the network and carry the voice or data services of another provider without discrimination.

Originally, users connected to the Internet by attaching a dial-up modem to a telephone line and contacting an Internet service provider over that line. Because of the nondiscrimination requirements the government imposes on owners of telecommunications facilities with respect to basic transmission service, the user and the ISP could obtain local phone service on demand.

3.4, Can the use of a domain name for purposes other than hosting trademarkabusive content constitute bad faith?

Panels have held that the use of a domain name for purposes other than to host a website may constitute bad faith. Such purposes include sending email, phishing, identity theft, or malware distribution.

4.9 Can UDRP proceedings be suspended for purposes of settlement?

Paragraph 17 of the UDRP Rules makes clear that a proceeding may be suspended to facilitate settlement negotiations, or to implement a settlement agreement between the parties.

Linkedin

Provider of workforce data services brought action against operator of professional networking website, asserting that it had an affirmative right to access publicly available profiles on operator's website under California law and seeking a declaration that it would not violate the Computer Fraud and Abuse Act (CFAA), the Digital Millennium Copyright Act (DMCA), or the common law of trespass by accessing public profiles. Provider moved for a preliminary injunction

3.8.1, Domain names registered before a complainant accrues trademark rights

Subject to scenarios described in 3.8.2 below, where a respondent registers a domain name before the complainant's trademark rights accrue, panels will not normally find bad faith on the part of the respondent. (This would not however impact a panel's assessment of a complainant's standing under the first UDRP element.)

1. CFAA [9] [10] Whether hiQ's continued access to the LinkedIn public profiles violates the CFAA constitutes a key threshold question in this case.

The CFAA creates civil and criminal liability for any person who "intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains ... information from any protected

Exclusive Province of Congress:

The commerce clause prevents a state from regulating "those phases of the national commerce which, because of the need of national uniformity, demand that their regulation, if any, be prescribed by a single authority." Southern Pac. Co. v. Arizona, 325 U.S. 761, 767 (1945). * * *

1.15, 1.15 Is the content of the website associated with a domain name relevant in determining identity or confusing similarity?

The content of the website associated with the domain name is usually disregarded by panels when assessing confusing similarity under the first element.

what is the idea behind in rem jx in ACPA context

The idea is that the disputed property, the domain name, is "located" where it is registered, and that this property can form the basis for jurisdiction even if there is insufficient basis for jurisdiction over the defendant personally. Thus, for example, ACPA permits a trademark owner to file suit in Virginia to recover a domain name registered online with VeriSign, Inc., even if the owner of the domain name has never set foot in Virginia and did not know that VeriSign, Inc. was located there.

Let's say you have monopoly power in cameras. But then you also want to start making money off the printing of the photos.

To that kind of using your monopoly power to extend into a neighboring area is is is against the law that is illegal, as well. main thing for you to appreciate is that when you are when you when you have a tremendous amount of market share. When you are the the monopoly power in the monopolist, then you have these duties to not Take improper action to keep your competitors out of that marketplace or to use your, your market power in one area to extend into the other. So with that in mind, let's talk about

DMCA Unlike a provider who meets the subsection 512(a) safe harbor for passive transmission, retransmission, or temporary storage, a provider seeking to meet the requirements of the subsection 512(c) safe harbor (covering providers that store materials at the direction of users) must accommodate copyright holders' complaints about specific infringing material.

Under paragraph 512(c)(2), the service provider must designate an agent to receive notifications of claimed infringement. Paragraph 512(c)(3) and subsection 512(g) provide detailed rules both for this notice and for the obligations of service providers once they receive the notice.

How Does Com Laude Help Navigate ICANN?

We have team members on the PDP working group committees We are also actively involved in the Intellectual Property Constituency, as well as both the Registrar and Registries Stakeholder Groups We attend all ICANN public meetings and cover all key sessions We participate in all key bi-weekly working group calls We also attend other events where we can represent rights-holders interests, such as INTA, DNA, MARQUES, ITMA, BRG, PTMG

3.9, Can the respondent's renewal of its domain name registration support a finding of (registration in) bad faith?

Where the respondent provides satisfactory evidence of an unbroken chain of possession, panels typically would not treat merely "formal" changes or updates to registrant contact information as a new registration.

INTERMEDIARIES ·

Whether there is a duty on the part of the intermediaries to stop the bad behavior= no duty · Until specific notice don't have any responsibility · No responsibility to take down material

DMCA (g) Replacement of Removed or Disabled Material and Limitation on Other Liability.— (1) No liability for taking down generally.—

a service provider shall not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.

The dormant Commerce Clause's extraterritoriality doctrine applies where

a state or local law "directly controls commerce occurring wholly outside the boundaries" of the jurisdiction. Healy v. Beer Instit, 491 U.S. 324, 336 (1989) (emphasis added).

Healy does not address whether

a statute violates the commerce clause when a defendant can comply with a statute in such a way as to avoid extraterritorial application.

· Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2nd Cir. 2004): Π= Register.com; π serves as a registrar for the issuance of domain names, appointed as such by ICANN. Applicants registering domain names submit to the registrar contact information, including the applicant's name, postal address, telephone number, and electronic mail address—referred to as WHOIS information. As a registrar, π was required to enter into a standard form agreement with ICANN, known as the ICANN Registrar Accreditation Agreement. Under this agreement, a registrar is required to preserve this information, update it daily, and provide for free public access to it through the Internet as well as through an independent access port, called port 43. · Informed of limitation on use of information when you made the inquiry. Argument that imposing the condition after receive the information. o Section II.F.5 of the ICANN Agreement, at issue in this appeal, requires that the registrar "not impose terms and conditions" on the use made by others of its WHOIS data "except as permitted by ICANN-adopted policy." The ICANN Agreement requires the registrar to permit use of its WHOIS data "for any lawful purposes except to ... support the transmission of mass unsolicited, commercial advertising or solicitations via e-mail (spam); [and other listed purposes not relevant to this appeal]." In addition, another section of the agreement titled "No Third-Party Beneficiaries" states that "[t]his Agreement shall not be construed to create any obligation by either ICANN or Registrar to any nonparty to this Agreement ...." o Register updated its WHOIS information daily and allowed free public query, as required by the ICANN Agreement. Entities making WHOIS queries would receive a reply, furnishing the information and captioned by a legend devised by Register, which stated: By submitting a WHOIS query, you agree that you will use this data only for lawful purposes and that under no circumstances will you use this data to ... support the transmission of mass unsolicited, commercial advertising or solicitation via e-mail. § This legend tracked the terms of the ICANN Agreement.In addition to the registrar function, π also sells Web-related services to entities that maintain Web sites. o ∆= Verio, ∆ also engaged in selling Web site design and related services and a Register competitor, obtained daily updates of the WHOIS data using a bot, or Web spider, to access Register's database. ∆ would then send marketing solicitations to the registrants via e-mail and other means. π filed suit, asserting various claims under the Lanham Act, Computer Fraud and Abuse Act (CFAA), trespass to chattels, and breach of contract. A district court issued an injunction against ∆ prohibiting it from using the bot or spider to access π's database. On appeal, ∆ asserted, among other things, that while π was legally authorized to demand that takers of WHOIS data from its systems refrain from using it for mass solicitation by mail and telephone, as well as by e-mail, "it nonetheless never became contractually bound to the conditions imposed by π's restrictive legend because, in the case of each query ∆ made, the legend did not appear until after ∆ had submitted the query and received the WHOIS data." Therefore, it contended that it did not receive "legally enforceable notice of the conditions π intended to impose." o Distinguished from Specht : Here, ∆ visited π's computers daily to access WHOIS data and each day saw the terms of π's offer; ∆ admitted that, in entering π's computers to get the data, it was fully aware of the terms on which π offered the access. o ∆ next argument is that did not agree to be bound. Ct rejects

§ Held: don't need an I agree button. "It is standard contract doctrine that when a benefit is offered subject to stated conditions, and the offeree makes a decision to take the benefit with knowledge of the terms of the offer, the taking constitutes an acceptance of the terms, which accordingly become binding on the offeree." § C- the enforcement of online terms of use should not be dependent on a specific act of assent by the user. o K btw register: The ICANN K says that wont limit the use of the WHOIS info; verio saying registers K with ICANN prohibits you from imposing victims to reach out to the registrar's and say, You got to shut this man down this this website down because it's doing bad things. Sometimes it works and sometimes it doesn't. But if the registrar does not take down the website even though the website is in breach of the contracts with ICANN. There is no right on the part of the victims to enforce the ICANN contract. The victims are not third party beneficiaries of the ICANN to register contracts or for that matter, the registrar to user domain name users, and they have very similar clauses in those contracts as well. There's no third party beneficiary. and with respect to the use of the Whois information. o Information that is not protectable here is the WHOis info ( contact info for websites). Info is being protected by virtue of control under the K provisions. Like in Feist don't have any rights in copyright but companies say only way to get info is if agree to not use it.

Tomelleri facts

π is an artist who paints pictures of fish; ∆ is a CALI corporation who develops apps; copyright lawsuit ( elements do not require intent); ∆ makes an app to learn about fish in different lakes in different states; π alleges that the app used some of π's copyrighted fish pictures. The suit was filed in district court of Kansas.

Upcoming Issues at ICANN

• DNS Abuse •DNS Abuse has been a controversial topic at ICANN for the last 18 months • •Key questions being asked: • •What is DNS Abuse? • •Who is responsible for stopping DNS Abuse?

What is Whois?

• Whois is the system that contains domain name registrant contact data •This contact data has historically been publicly available •Doing a look-up of a domain name would provide the registered name holder's contact details for that domain name Registries and registrars have been contractually obligated to collect and publish registrant data Whois has historically been relied upon by brand owners, law enforcement, security researchers, and others to combat "bad actors". For example: •Brand owners looking to send cease and desist letters to cybersquatters •Law enforcement to issue a warrant •Security researchers use the data to spot patterns in activities by bad actors

Why is DNS Abuse Controversial?

•Groups pushing IP protection/consumer protection/cybersecurity agendas claim that redacted Whois data is inhibiting them from achieving their goals - especially during Covid-19 • •Content is outside of ICANN's remit - ICANN is only able to engage in technical matters pertaining to the DNS • •Also groups opposed to content regulation • •Some groups want registries and registrars to be subject to stricter contractual obligations • •Registries and registrars for the most part oppose this proposal • •ICANN Community complaining that ICANN Compliance does not properly enforce contractual obligations against registries and registrars

Who is Responsible for DNS Abuse?

•Registry Agreements require registries to include obligations in their Registry-Registrar Agreements, for registrars to include in contracts with registrants, that registrants are not allowed to use their domain name for DNS abuse • • With the contract structure under safe harbor laws, the registrant is ultimately responsible for not using their domain name for DNS Abuse • •Registrars only become liable in court if they refuse to take down domain names being used for DNS Abuse • •This could change with platform liability laws being reviewed (these are generally targeted at ecommerce platforms and not intermediary liability as a whole) • •SHOP SAFE Act (H.R. 6058) (USA) • •Digital Services Act (EU)

What Brand Owners Fight Against

•Scammers Abuse Multilingual Domain Names •Non-English characters allow scammers to create "lookalike" sites with domain names almost indistinguishable from legitimate ones • •Lower case letters can be represented by as many as 40 different variations • •Scam sites posing as banks and loan advisers • Smartphones screens put users at risk as they make lookalikes hard to spot

What Else Does ICANN Do?

•Works with specialists to maintain the security and stability of the Internet through standards setting and promotion such as DNSSEC • •Does outreach to increase knowledge of how the internet works and how individuals and businesses can influence it • •Does outreach to inform of specific campaigns, i.e. the First Round awareness raising of the new gTLD process •Participates in many Internet Governance Fora globally to educate the Internet community and governments about their limited role and which issues are properly within ICANN's mandate and which are not.

National Federation of the Blind v. Target Corp/ ∆ Dormant Clause Argument

∆ contends that even if the Unruh Act and the DPA do govern access to websites, applying these state laws to the internet would violate the dormant commerce clause. 2 arguments: (1) Extraterritorial Regulation: state regulation of Target.com would regulate conduct occurring wholly outside of California; (2) Exclusive Province of Congress: state regulation of Target.com would regulate an area of commerce that is reserved exclusively for Congress.

ANTICOMPETITIVE EFFECTS 166. Google has maintained unlawful monopolies in the general search services, search advertising, and general search text advertising markets through its many exclusionary agreements and other conduct that have separately and collectively harmed competition by:

a. Substantially foreclosing competition in general search services and protecting a large majority of search queries in the United States against any meaningful competition; b. Excluding general search services rivals from effective distribution channels, thereby denying rivals the necessary scale to compete effectively in the general search services, search advertising, and general search text advertising markets; c. Impeding other potential distribution paths for general search services rivals; d. Increasing barriers to entry and excluding competition at emerging search access points from nascent competitors on both computers and mobile devices;

Congress passed the CLOUD Act, which allows U.S. law enforcement in criminal investigations to

access data stored overseas subject to certain requirements, such as an executive bilateral agreement.

Digital Millennium Copyright Act, the DMCA creates a model or a structure for

adjudicated claims of immunity with respect to copyright

§ Shrink Wrap vs. Browse Wrap: Browse-Wrap Agreement:

allows a user to "browse" and use information on a Web site, or download software, without expressly assenting to the license terms of the Web site.

ICANN undertakes these responsibilities through

an array of committees and task forces largely comprised of Internet constituent groups with a financial stake in the administration of the Internet's infrastructure.

to enforce the Warrant, insofar as it directs Microsoft to seize the contents of its customer's communications stored in Ireland, constitutes

an unlawful extraterritorial application of the Act.

courts in several circuits have invalidated state laws regulating the internet on the grounds that

any regulation of the internet regulates conduct occurring outside the borders of the state.

In one celebrated example, Madison River Communications, a DSL provider,

blocked its customers from using rival Voice over Internet Protocol (VoIP) Internet phone services. The FCC fined Madison River and pursued a Consent Decree pursuant to which Madison River agreed to stop blocking VoIP on its DSL lines. Significantly, however, both the fine and consent decree were enforced through the FCC's common carrier requirements. Yet, until its recent 2015 Order, the FCC has ruled that broadband providers were exempt from such requirements. As a result, the sort of regulatory oversight exercised by the FCC in the Madison River case was not available. Hence, critics fear that content discrimination of the sort practiced by Madison River would become the norm. Concerns about content blocking may be overstated because a broadband provider that blocked access to too many desired applications presumably would find itself losing market share, provided markets are sufficiently competitive for consumers to switch providers.

The commerce clause is not necessarily implicated since Target could

choose to make a California-specific website.Courts have held that when a ∆ chooses to manufacture one product for a nationwide market, rather than target its products to comply with state laws, defendant's choice does not implicate the commerce clause.

search. King. There was no allegation of of monopoly power or anti trust violations.

court sweeping assertions in search King that it doesn't matter why you do it even if it's hateful. Well, that's that may be correct. But it's not correct that if you are motivated. If you are a if you have monopoly power and if your purpose in excluding some or changing your rankings is for the purpose of hurting a competitor. That would be a prohibited purpose and we see that in with respect to the EU, so we also then let's let's move on to the United States and and I've kept this reading fairly shallow only because

In Complete Auto Transit, Inc. v. Brady,430 U.S.274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977). The Court held that a State "may tax exclusively interstate commerce so long as the tax does not

create any effect forbidden by the CommerceClause." Id., at 285, 97 S.Ct. 1076. After all,"interstate commerce may be required to pay its fair share of state taxes." D.H. Holmes Co. v.McNamara,486 U.S. 24, 31, 108 S.Ct. 1619, 100L.Ed.2d 21 (1988).

youre an information content provider if you

create the content whole or in part

What is DNS Abuse?

depends on who you ask • •Registries and registrars say DNS Abuse is •malware, botnets, phishing, pharming, and spam (when it serves as a delivery mechanism for the other forms of DNS Abuse) • •Other groups argue DNS Abuse is far broader and includes (at least) •malware, abusively operating botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law, through a domain name or on content hosted on the domain name

jx for disputed domain names under ACPA?

disputed property, the domain name, is "located" where it is registered, and that this property can form the basis for jurisdiction even if there is insufficient basis for jurisdiction over the defendant personally. Thus, for example, ACPA permits a trademark owner to file suit in Virginia to recover a domain name registered online with VeriSign, Inc., even if the owner of the domain name has never set foot in Virginia and did not know that VeriSign, Inc. was located there.

corner Newsstand, you're in the category of a

distributor. before there was the internet, there was distinction between publishers and distributors. publishers could be liable for the content that they create distributors were not liable.

what have to prove for ACPA complaint and bad faith?

either registered in bad faith or used in bad faith.

'[t]he SCA was enacted to

extend to electronic records privacy pro-tections analogous to those provided bythe Fourth Amendment.''

one focused on nondiscriminatory access for competitors

government may require an infrastructure owner to provide nondiscriminatory access to a (potential) competitor. Typically, this means that competitors gain access to the infrastructure resource on terms and conditions no less favorable than those granted to the owner's current internal or external users. The central purpose for mandating such access is to facilitate competition, entry, and prevent foreclosure. The intervention is limited to situations in which the infrastructure market is not competitive. There are two primary means for imposing this type of nondiscriminatory access. First, open access regulation may require an infrastructure owner to allow competitors access on nondiscriminatory terms through policies such as unbundling, wholesaling, and functional separation, among others. Open access regulation typically involves a complex regulatory regime administered by a sector- or industry-specific agency * * * Second, nondiscriminatory access may be imposed when the infrastructure is deemed to be an "essential facility" within the meaning of antitrust law. Under the essential facilities doctrine, courts may impose obligations of equal and non-discriminatory access to an infrastructural resource, where (1) a monopolist controls access to an essential facility, (2) the facility cannot be reasonably duplicated by a230competitor, (3) the monopolist denies access to a competitor, and (4) it was feasible to grant access.1 Notably, the essential facilities doctrine applies only to a specific competitor that has been denied access to the infrastructural facility and whether the doctrine should apply is determined in a judicial setting through application of antitrust law. In contrast, open access regulation applies to all potential competitors and is implemented in a regulatory setting. These institutional differences affect the scope and timing of the intervention as well as the evidence and criteria upon which decisions to intervene are made. Regardless of the means used, the conventional justification for this type of intervention is to support viable competition in the infrastructure access market and other market(s) dependent upon the infrastructure, and thus, to preclude foreclosure of potential competition. Competition may not be viable otherwise because of barriers to entry—for example, potential competitors may be unable to enter the market if the costs of duplicating the infrastructure are substantial. * * * The conventional justification, rooted in antitrust and regulatory economics, is premised on the idea that competition is socially desirable yet unattainable under certain conditions, and nondiscriminatory access may be an efficient means to facilitate competition. Yet the antitrust and regulatory economics traditions largely disfavor this type of intervention—through either means. The reasons are many and complex. Some of the basic ideas are: • monopoly is not necessarily bad; • government intervention may stifle incentives; • the complex business (and often technological) interface between infrastructure owners and competitors requires careful attention, presents opportunities for strategic behavior, and may require considerable oversight by regulators; • regulatory agencies are likely to be cumbersome, inefficient, wasteful and possibly captured by the regulated entities; • courts are not likely to make good economic decisions with respect to determining whether the essential facilities doctrine applies and to administering the remedy; and • nondiscrimination rules inevitably must be accompanied by price regulation (to avoid monopoly pricing). * * *

See Solove & Hartzog, The FTC and the New Common Law of Privacy.

he companies that have been subject to enforcement actions have made explicit or implicit promises that they would take appropriate steps to protect sensitive information obtained from consumers. Their security measures, however, proved inadequate; their promises, therefore, deceptive.

These open access conditions raise difficult statutory issues concerning

how to classify cable modem service under the Federal Communications Act: as a "telecommunications service," 47 U.S.C. § 153(46), an "information service," id. § 153(20), a "cable service," id. § 522(6), or some combination thereof.

difference btw bad faith in ACPA vs UDRP

if go to federal court and use the federal legislation, the ACPA has "or" so if website/domain name currently being used in bad faith even if it was registered in good faith the plaintiff would win

Provider of workforce data services demonstrated that it would suffer immediate and irreparable harm

if it was blocked from accessing public profiles on professional networking website, thus supporting issuance of preliminary injunction against operator in provider's action asserting affirmative rights to the profiles under state law and seeking a declaration that it had not violated state or federal law; provider's assertions that it would have to breach its agreements with customers, lay off most of its employees, and shutter its operations were credible given that provider's entire business depended on its access to the public profile data

There cannot be bad faith at registration

if the domain name was registered before the trademark rights arose.

Supreme Court has held that bank depositors have no protectable privacy interests

in a bank's records regarding their accounts.See United States v. Miller, 425 U.S. 435,440-41, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976)(explaining that the records a bank creates from the transactions of its depositors are the bank's ''business records'' and not its depositors' ''private papers''). T

CDA does not create immunity for

intellectual property violations.

no provider user of an

interactive computer service shall be treated as a publisher of any info provided by another A provider someone who enables access to the internet will not be treated as a publisher of info provided by another

According to the Pataki court, all on-line communication

is inter-state; purely intra-state communication is impossible. State regulation of the internet, then, necessarily subjects people in other states to New York law. A California resident posting to the web, for intended viewing by a resident of Oregon, would risk prosecution under New York law, because New Yorkers could access the website.

When, in 1986, Congress passed theStored Communications Act as part of the broader Electronic Communications Priva-cy Act,

its aim was to protect user privacy in the context of new technology that re-quired a user's interaction with a service provider.

subpoena-warrant distinction is significant because, unlike warrants, subpoenas

may require the production of communications stored overseas.

Did Congress did intend the SCA's warrant provisions to apply extraterritorially?

no

a distributor with knowledge would

not be held liable under the CDA

· CompuServe

not liable b/c don't do anything editorial; don't change anything, everything goes up=an electronic news distributor is "the functional equivalent of a more traditional news vendor" and therefore does not have editorial control and is not a publisher of the statements posted on electronic bulletin boards.

you're not going to be treated as a publisher, by virtue

of providing access to the content created by others under CDA

· Fourteenth Amendment provides that "No state shall... ." And the First Amendment begins: "Congress shall make no law ..." As a result, the Supreme Court has · · Marsh v. Alabama, 326 U.S. 501 (1946), holding that under some circumstances, property that is privately owned may, at least for First Amendment purposes, be treated as though it were publicly held and holding the town of Chickasaw, which was wholly owned by the Gulf Shipbuilding Corporation, but in all other respects had the characteristics of any other American town must abide by First Amendment norms concerning the rights of religious organizations to pass out leaflets. · Amalgamated Food Employees Union v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968), holding shopping mall, which, according to the Court, functioned as the equivalent of a town business district and therefore must permit political leafleting and peaceful protest. · Chevron Doctrine o Standard of review when dealing with agency. If parts of statute are ambiguous then when get into court instead of judge deciding there is a notion that agency has expertise over time and there is deference. o When agency like FCC is before court and say this is what means the implication is that court will have a deferential standard of review. o Part 2: agency cannot be arbitrary and capricious cannot change rules year to year. But if fact changes then rules can change but have to make fact determination. · "end-to-end" principle, the idea that the infrastructure of the network remains separate from the content it carries, and all data are treated equally by the carriers that transmit them. o Netflix would like net neutrality o YouTube would likely object to customers paying more money to get their content. o Announce rules that would like more broadband to create o When say net neutrality what are the rules implemented under a net neutrality regime? § Cannot do these things: (1) no blocking; (2)no throttling; (3) Ex.:comcast was slowing down bittorrent which was held to be a violation of the rule; (4) no paid prioritization; § Blocking: preventing website from getting on internet; Ex.: if ISP cut off pornography b/c a religious org then would be a violation of blocking · "A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management." · Like the common carrier non-discrimination of cannot look in the packages. § No throttling: · "A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not impair or degrade lawful Internet traffic on the basis of Internet content, application, or service, or use of a non-harmful device, subject to reasonable network management." § No Paid prioritization: Paid prioritization occurs when a broadband provider accepts payment (monetary or otherwise) to manage its network in a way that benefits particular content, applications, services, or devices. · Common carriers- ex.: airplanes, trains okay because categories · "A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not engage in paid prioritization." · Policy debates: argument is that if people want to pay for it then it would be valuable. Chicago school of economics. Whether it would be good for economy to allow for price differentiation with respect to the internet? § These now allowed b/c vacated. Cali says will have own net neutrality rules that are stricter than FCC rules. § Trump administration sued Cali that says illegal for state to implement own rules and then cali joins suit in dc ciruit and argue classification of ISP as telecommunications???

often refused to apply these constitutional provisions to what it deems to be "private action." · Idea that the activities of private corporations are not subject to the Constitution because they are not state actors.

"[T]he CFAA contemplates the existence of three kinds of computer information,"

one of which is "information for which access is open to the general public and permission is not required." (Id. at 1002.) "[W]here access is open to the general public, the CFAA 'without authorization' concept is inapplicable." Because LinkedIn's website and thus data was "accessible to the general public" with no authentication system at all, the authorization elements of the CFAA were not invoked. Had LinkedIn installed even a perfunctory or nominal authentication system, HiQ suggests that the CFAA would have applied to preempt hiQ's unfair competition claims, enabling LinkedIn and other technology platforms to block competitors and strengthen their grip over the technology market.

Thus far, cable companies have captured the largest share of the broadband market, and their success has prompted a sustained regulatory controversy

over the terms under which Internet service providers will have access to broadband platforms.

A state law directly controlling commerce "wholly outside the boundaries of a State" is

per se invalid regardless of whether the legislature intended to regulate activities outside of the state. Id.; see also National Collegiate Athletic Association v. Miller, 10 F.3d 633, 639 (9th Cir.1993).

§ Blocking:

preventing website from getting on internet; Ex.: if ISP cut off pornography b/c a religious org then would be a violation of blocking · "A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management." · Like the common carrier non-discrimination of cannot look in the packages.

§ Shrink Wrap vs. Browse Wrap: · Shrink-Or Click-Wrap Agreement:

requires users to perform an affirmative action unambiguously expressing assent to certain license terms before the user is permitted to use a Web site or software,

Calder v. Jones, 465 U.S. 783 (1984):

targeted negligence does not trigger a specific jurisdiction. going to have to show that there is some sort of awareness and an intentional aiming or targeting rather than mere negligence. ·

Warrants traditionally carry

territorial limitations: United States law enforcement officers may be directed by a court-issued warrant to seize items at locations in the United States and inUnited States-controlled areas, see Fed.R. Crim. P. 41(b), but their authority generally does not extend further.

In Miller v. California, 413 U.S. 15 (1973), the Supreme Court held

that a state could constitutionally prohibit "obscene" speech.

In enacting the SCA, Congress ex-pressed a concern

that developments in technology could erode the privacy interest that Americans traditionally enjoyed in their records and communications

Unlike a "brick and mortar outlet" with a specific geographic locale, and unlike the voluntary physical mailing of material from one geographic location to another, as in Miller, the uncontroverted facts [in Reno] indicate

that the Web is not geographically constrained.

Ordinarily, "'one who repeats or otherwise republishes defamatory matter is subject to liability as if he had originally published it.'" Cianci v. New Times Publishing Co., 639 F.2d 54, 61 (2d Cir. 1980) (Friendly, J.) (quoting Restatement (Second) of Torts § 578 (1977)). With respect to entities such as news vendors, book stores, and libraries, however, "New York courts have long held

that vendors and distributors of defamatory publications are not liable if they neither know nor have reason to know of the defamation." Lerman v. Chuckleberry Publishing, Inc., 521 F. Supp. 228, 235 (S.D.N.Y. 1981). * * *

The narrow question of extraterritorial jurisdiction and whether providers like Microsoft must turn over customer data—wherever located—if it's in their custody or control is resolved by

the CLOUD Act,"

·AT&T v. City of Portland, 216 F.3d 871, 876-80 (9th Cir. 2000),

the Ninth Circuit ruled that "the transmission of Internet service to subscribers over cable broadband facilities is a telecommunications service under the Communications Act."

in American Libraries Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997). At issue in that case was

the constitutionality of a New York law criminalizing the intentional use of a computer to transmit sexually explicit material to a minor.

broadly speaking, there is no duty on the part of the intermediary to police and to look for infringement. It is instead the duty of

the copyright owner to police and to put the the intermediary on notice. Failing to be precise means that the intermediary gets off.

And insofar as territorial reach is concerned, Rule 41(b) de-scribes

the extent of the power of various authorities (primarily United States magistrate judges) to issue warrants with re-spect to persons or property located within a particular federal judicial district. It also allows magistrate judges to issue warrants

The CLOUD Act, which was included in the 2018 omnibus spending package, provides a mechanism for companies to challenge law enforcement data requests if

the order would cause international conflict of law issues.

The court in American Libraries Association v. Pataki, held that the law violated the dormant commerce clause on three separate grounds:

the statute regulated conduct occurring wholly outside of New York; the burdens of the law on interstate commerce outweighed the benefits; and regulation of the internet is reserved exclusively for Congress.

intermediary immunity for trademark

tiffany v. ebay

Specific jurisdiction in Tomelleri

to establish specific jurisdiction the π must show that (1) purposefully directed activities at the state of Kansas and (2) that π injuries arise of ∆ forum related activities.

Uniform Rapid Suspension System (URS), which largely applies only

to second-level domains within new gTLDs established since 2013 and to ccTLDs (country code top-level domains such as .us) that

The central dispute in South Dakota v. Wayfair is

whether South Dakota may require remote sellers to collect and remit the tax without some additional connection to the State.

Based on Miller, attempts to regulate sexually explicit speech at the federal or local level often tie the legality of the speech to

whether it is consistent with "contemporary community standards."

When we find that a law does not contemplate or permit extraterritorial application, we generally must then determine

whether the case at issue involves such a prohibited application. Morrison, 561 U.S. at 266, 130 S.Ct. 2869. In making this second-stage determination, we first look to the ''territorial events or relationships'' that are the ''focus'' of the relevant statutory provision.

Proponents of net neutrality fear that,

without any common carrier or open access restrictions in place, broadband providers may decide no longer to be passive network providers and will instead begin to regulate Internet use and engage in a variety of discriminatory practices, ranging from selectively blocking, throttling and prioritizing data flows to fine-grained price discrimination that extracts rents and surplus from consumers.

If a state law discriminates against out-of-staters, it is subject to

"the strictest scrutiny of any purported legitimate social purpose and of the absence of nondiscriminatory alternatives."

The commerce clause prevents a state from regulating

"those phases of the national commerce which, because of the need of national uniformity, demand that their regulation, if any, be prescribed by a single authority." Southern Pac. Co. v. Arizona, 325 U.S. 761, 767 (1945). * * *

'[c]loud computing''

''the capacity of In-ternet-connected devices to display datastored on remote servers rather than on thedevice itself.'' Riley v. California, --- U.S.----, 134 S.Ct. 2473, 2491, 189 L.Ed.2d 430(2014).

The conflict of law challenges under the CLOUD act come in two parts.

(1) Companies can challenge underlying warrants for data stored overseas if there is a bilateral law enforcement pact between the U.S. and a "qualifying foreign government," according to the law. (2) Companies are also afforded the ability to argue that the underlying order would cause a conflict of law issue with other countries absent a law enforcement sharing agreement.

The Court will sustain a tax so long as it

(1) applies to an activity with a substantial nexus with the taxing State, (2) is fairly apportioned, (3) does not discriminate against interstate commerce, and (4) is fairly related to the services the State provides. See Complete Auto,supra, at 279, 97 S.Ct. 1076.

Hatch v. Superior Court of San Diego County, 79 Cal. App. 4th 663, 80 Cal. App. 4th 170, 197, 94 Cal. Rptr. 2d 453 (Cal. Ct. App. 2000)

(holding that a law criminalizing the knowing distribution, via the internet, to a minor of material harmful to a minor did not regulate out-of-state conduct because California would prosecute only offenses occurring within the state);

Center for Democracy and Tech. v. Pappert, 337 F. Supp. 2d 606, 662-63 (E.D. Pa. 2004)

(holding that a law requiring Internet Service Providers to remove or disable access to child pornography applied the policies of Pennsylvania to internet transactions in other states).

PSINet, Inc. v. Chapman, 362 F.3d 227, 240-41 (4th Cir. 2004)

(invalidating a Virginia law that criminalized the dissemination of material harmful to minors over the internet on the grounds that any regulation of the internet necessarily regulates conduct occurring entirely out-of-state);

Riley v. California,--- U.S. ----, 134 S.Ct. 2473, 2491, 189L.Ed.2d 430 (2014)

(noting privacy concern triggered by possibility that search of ar-restee's cell phone may inadvertently ac-cess data stored on the ''cloud,'' thus ex-tending ''well beyond papers and effects in the physical proximity'' of the arrestee).

People v. Hsu, 82 Cal. App. 4th 976, 982, 985, 99 Cal. Rptr. 2d 184 (Cal. Ct. App. 2000)

(rejecting a commerce clause challenge to a California law criminalizing use of the internet to knowingly distribute to a minor matter harmful to a minor on the grounds that the legislature intended to criminalize only conduct occurring within California);

Key fact in Reno

"Indeed, and of extreme significance, is the fact, as found by the District Court, that Web publishers are without any means to limit access to their sites based on the geographic location of particular Internet users. As soon as information is published on a Web site, it is accessible to all other Web visitors. Current technology prevents Web publishers from circumventing particular jurisdictions or limiting their site's content "from entering any [specific] geographic community." Id. at 484. This key difference necessarily affects our analysis in attempting to define what contemporary community standards should or could mean in a medium without geographic boundaries."

47 U.S.C. § 230(f)(3) . Information content provider: The term "information content provider" means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. * * * what does "develop" mean in information content provider definition?

We believe that both the immunity for passive conduits and the exception for co-developers must be given their proper scope and, to that end, we interpret the term "development" as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct. * * *

Reasonable Network Management. As with the 2010 rules, this Order contains an exception for reasonable network management, which applies to all but the paid prioritization rule (which, by definition, is not a means of managing a network): A network management practice is

a practice that has a primarily technical network management justification, but does not include other business practices. A network management practice is reasonable if it is primarily used for and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.

· minimum contacts facts that you're using to justify specific jurisdiction have to

be related to the cause of action= nexus

The CDA creates immunity for

defamation lawsuits, non IP, non criminal

If the domestic contacts are merely secondary to the statutory ''focus,'' then

the provision's application to the case is extraterritorial and precluded.

courts have upheld state anti-spam statutes by distinguishing

the regulation of e-mail from the regulation of internet postings; e-mail messages can be targeted at recipients in particular geographical areas, whereas a posting to the internet is accessible to any internet user, regardless of location.

A second dormant commerce clause test applies when a state law is non-discriminatory on its face but nonetheless impinges on interstate commerce. In this context the Court applies

a balancing test: "Where the statute regulates evenhandedly to effectuate a legitimate state interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

Generic top-level domains are administered

by commercial companies that serve as registrars through agreements with ICANN.

Companies that offer WiFi network mapping services

collect data on the names of WiFi networks and their corresponding locational coordinates. Once a company has compiled a sufficiently large database of WiFi networks, it can query a user's device for names of nearby WiFi networks, and compare the response to the database, establishing the device's location. Cell site geolocation and GPS technologies can help determine the location of users accessing a website or application from a mobile device configured to permit disclosure of location data

Rule 41 of the Federal Rules of Criminal Procedure, entitled ''Search and Seizure,'' addresses

federal warrants. It directs ''the magistrate judge or a judgeof a state court of record'' to issue the warrant to ''an officer authorized to exe-cute it.'' Rule 41(e)(1).

RCS

generally operated either by providing customers with access to computer processing facilities in a ''time-sharing arrangement,'' or by directly processing data that a customer transmitted electronically to the provider by means of electronic communications, and transmit-ting back the requested results of particular operations.

[Under Healy], to determine what the "practical" effects of the regulation are, courts should

inquire into the actual effects of state legislation rather than the effects intended by the legislature.

can a SCA warrant lawfully be used to compel Microsoft to produce to the government the contents of a customer's e-mail account stored exclusively in Ireland?

no

does the SCA does authorize a U.S. court to issue and enforce an SCA warrant against a United States-based service provider for the contents of a customer's electronic communications stored on servers located outside the United States?

no

Internet service providers (ISPs)

obtain blocks of IP addresses that they then distribute to customers. Thus, if one knows that a user's IP address is associated with an ISP located in Illinois, that information supports a preliminary inference that the user is accessing the service from Illinois.

This extraterritoriality presumption rests on the

perception that ''Congress ordinarily legislates with respect to domes-tic, not foreign matters.'' The presumption reflects that Congress, rather than the courts, has the ''facilities necessary'' to make policy decisions in the ''delicate field of international relations.''

In Microsoft the court concludes that the relevant provisions of the SCA focus on

protecting the privacy of the content of a user's stored electronic communications.

The focus of SCA warrant provisions is

protection of a user's privacy interests.

In identifying the ''focus'' of the SCA's warrant provisions, it is helpful to

resort to the familiar tools of statutory interpretation, considering the text and plain meaning of the statute, as well as its framework, procedural aspects, and legislative history.

''server''

s ''a shared computer on a network that provides services to clients. TTTAn Internet-connected web server is [a] com-mon example of a server. '' Harry Newton &Steve Schoen, Newton's Telecom Dictionary1084 (28th ed. 2014) (''Newton's Telecom Dic-tionary'').

The DNS is

the Internet's addressing system and is used to route traffic through the Internet. This system consists of generic top-level domains (gTLDs) consisting of three or more characters. A gTLD includes, for example, .com and.org, each of which is a well known component of many Internet addresses.

In US v. Microsoft the Warrant was issued under the provisions of

the Stored Communications Act,

State laws that"regulat[e] even-handedly to effectuate a legitimate local public interest ... will be upheld unless

the burden imposed on such commerce is clearly excessive in relation to the putative local benefits ( pike)

For electronic communications stored recently (that is,for less than 180 days) by an ECS,

the government must obtain a warrant.§ 2703(a).

Other courts have upheld state laws regulating the internet by reasoning that

the statute was intended to apply only to local conduct, or that the state would enforce the law only against conduct occurring within the state.

In the absence of Quill and Bellas Hess, the first prong of the Complete Auto test simply asks

whether the tax applies to an activity with a substantial nexus with the taxing State.

United States v. First National City Bank held that a bank subject to the jurisdiction of a federal court was not absolutely entitled to

with-hold from a grand jury subpoena its banking records held in Frankfurt, Germany''relating to any transaction in the name of(or for the benefit of)'' certain foreign customers solely because the bank faced the prospect of civil liability.

In wayfair did the tax apply to an activity with a substantial nexus with the taxing state?

yes "Here, the nexus is clearly sufficient based on both the economic and virtual contacts respondents have with the State. The Act applies only to sellers that deliver more than $100,000 of goods or services into South Dakota or engage in 200 or more separate transactions for the delivery of goods and services into the State on an annual basis. S.B. 106, § 1. This quantity of business could not have occurred unless the seller availed itself of the substantial privilege of carrying on business in South Dakota. And respondents are large, national companies that undoubtedly maintain an extensive virtual presence. Thus, the substantial nexus requirement of Complete Auto is satisfied in this case."

When he turned 21, a young man who lived in State A decided to move to a city in State B. He loaded all his possessions in his truck and trailer and set out for State B. While en route, he was involved in a serious accident in State C with a woman driving an SUV, injuring both parties. Because of his injuries, the man has remained in State C for several months. However, he still intends to relocate to the city in State B as soon as he has recuperated and is able to travel. The woman, a citizen and resident of State D, is preparing to file a negligence action in federal district court against the man for the injuries she suffered in the State C accident. If the woman files the action before the man proceeds to State B, in what federal district or districts is venue proper?

A The District of State C only. B The District of State C and the District of State A. C The District of State C and the District of State B. D The District of State C, the District of State A, and the District of State B. Answer Discussion - B- Venue is proper in the District of State C and the District of State A. Federal venue in civil actions is proper in (i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and (ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred. If there is no district anywhere in the United States that satisfies (i) or (ii), the action may be brought in a judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action. Here, the District of State C is a proper venue because a substantial part of the events giving rise to the claim occurred there. Additionally, at the time of the accident, the man's domicile was in State A. It remains his domicile until he acquires a new one by being physically present in a new place while intending to make that new place his permanent home. The man did not acquire a new domicile in State B because he has yet to be physically present there (although he does intend to make it his permanent home). As a result, (B) is the correct answer. (A) is not correct because the answer does not discuss the possibility of venue being based on the man's domicile. State C was not his domicile, because he does not intend to live indefinitely in State C. As stated above, State A remains his domicile. (C) and (D) are not correct because, as discussed above, the man has not made either place his domicile.

two primary principles that mark the boundaries of a State's authority to regulate interstate commerce.

First, state regulations may not discriminate against interstate commerce; and second, States may not impose undue burdens on interstate commerce.

§ No throttling: ·

"A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not impair or degrade lawful Internet traffic on the basis of Internet content, application, or service, or use of a non-harmful device, subject to reasonable network management."

A. Express and Ancillary Authority ·

"The [Commission], like other federal agencies, literally has no power to act unless and until Congress confers power upon it." American Library Ass'n v. FCC., 406 F.3d 689, 698 (D.C. Cir. 2005) · Preemption issue: vacating the issue because no statutory basis for the preemption either statutory or ancillary. · Cali · Only congress can preempt has to be clear in the statute that there is preemption. Preemption is not lightly implied b/c telling states they cannot do something so has ot be clear. · Broad preemption - here, everything preemption but the statute does not declare preemption. Cannot declare preemption when congress is silent. · Conflict preemption- narrow wait until particular controversy comes up nd sya have narrow decision with respect to this issue · The whole justification for vacating the FCC 2015 was that was no authority for regulating internet information services so no basis for preemption. · Title 1 is exception to the broader category of regulating as common carriers not dec that FCC would regulate them. Not a basis for preemption so vacated. · Whether chevron deference should rearise?- supreme court issue.

The Relevance of the GNSO to Lawyers

Privacy and Data Collection: • •What domain name registration data can be collected and stored by your client or organization? •How can you access domain name registration data about a domain name? Brand Protection: •How can the DNS assist with protecting IP rights online? •How do you avoid infringing on other people's IP rights online? Contract Rights and Obligations: •How can registries operate? •Are a registry's policies compliant with their contract with ICANN? •How can registrars operate? •Are a registrar's policies compliant with their contract with ICANN? •What domain names can be registered in a name space? •Who can register a domain name?

to the extent that such a regulation relies on "contemporary community standards," it raises the issue:

in what circumstances can one community apply its legal norms to speech originating in a different community?

State laws that discriminate against interstate commerce face

"a virtually per se rule of invalidity." Granholm v. Heald,

The Future of Whois

•The first phase of the expedited policy development process produced a policy for the collection and publication of registrant data • •This is currently in the implementation stage at ICANN • •The second phase of the expedited policy development process produced policies on a Standardized System for Access and Disclosure (SSAD) and items from the first phase • •The recommendations will be voted on by the GNSO Council on 24 September • •If adopted, then ICANN will begin implementation work • •Currently requests for disclosure of registrant data are done on an ad hoc basis by registrars and registries • •The SSAD would introduce SLAs and a central portal which would redirect requests to the applicable registrar or registry

The Pataki court, in addressing extraterritoriality, relied heavily on the idea that

"[a]n Internet user who posts a Web page cannot prevent New Yorkers or Oklahomans or Iowans from accessing that page and will not even know from what state visitors to that site hail." As a result, all website administrators would need to comply with New York law during all transactions or risk liability in the case of the indistinguishable New York visitor. On this understanding, the Pataki court concluded that New York's regulation necessarily imposed its policy preferences on out-of-state transactions. In the Court's parlance, New York was directly regulating out-of-state commerce, as there was no way to isolate in-state commerce. Under the extraterritoriality analysis, then, the law was per se invalid.

Young v. New Haven Advocate/ SJ Test in the internet context

"a State may, consistent with due process, exercise judicial power over a person outside of the State when that person (1) directs electronic activity into the State, (2) with the manifested intent of engaging in business or other interactions within the State, and (3) that activity creates, in a person within the State, a potential cause of action cognizable in the State's courts." ALS Scan, 293 F.3d at 714.

(iii) your domain name has been registered and is being used in bad faith.

"and"=major difference btw the UDRP and ACPA the UDRP have to show the registered the domain name in bad faith AND is currently being used in bad faith.

In contrast, the FCC in 2002 concluded that cable broadband services are

"information services" and therefore exempt from both local franchising regulation and federal open access requirements. This conclusion was promptly challenged in court, and ultimately, the U.S. Supreme Court deferred to the FCC determination as a permissible interpretation of an ambiguous statute. See National Cable & Telecommunications Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005). And, in the wake of the Supreme Court's decision, the FCC issued a further order reclassifying all broadband services (both cable and DSL) as "information services." See In the Matters of Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities, 20 F.C.C.R. 14,853 (2005).

To decide whether the extraterritoriality presumption limits the reach of a statutory provision in a particular case,

''we look to see whether 'language in the [relevant Act]gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure of legislative control.' '' Aramco, 499 U.S. at 248, 111S.Ct. 1227 (alteration in original) (quotingFoley Bros., Inc. v. Filardo, 336 U.S. 281,285, 69 S.Ct. 575, 93 L.Ed. 680 (1949)). The statutory provision must contain a ''clear indication of an extraterritorial application''; otherwise, ''it has none.'' Morrison,

Under California law, the elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are

(1) a valid contract between plaintiff and a third par-ty; (2) defendant's knowledge of this con-tract; (3) defendant's intentional acts de-signed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual re-lationship; and (5) resulting damage.

distinctions btw as a "telecommunications service," 47 U.S.C. § 153(46), an "information service," id. § 153(20), a "cable service," id. § 522(6), under FCA have important consequences. (1) If cable modem providers are deemed to be "cable services," then (2) A determination that such services are "telecommunications services" means that . (3) In contrast, if cable modem service is designated an "information service," then any local open access requirements

(1) local franchising authorities, like those in Portland and Multnomah counties, are free to impose open access conditions, which they have done in some cases. (2)the providers would generally be subject to federal common carrier requirements, which themselves also impose a form of open access (3)are precluded, and federal open access requirements are not required by the Communications Act and arguably can be imposed only at the discretion of the FCC.

what features of South Dakota's tax system seemed to the Wayfair Court to prevent discrimination or undue burdens on interstate commerce?

(1) the Act applies a safe harbor to those who transact only limited business in South Dakota. (2) Act ensures that no obligation to remit the sales tax may be applied retroactively. S.B. 106, §5. (3) South Dakota is one of more than 20 States that have adopted the Streamlined Sales and Use Tax Agreement.*

Section 512 of the Digital Millennium Copyright Act 17 U.S.C. § 512 § 512. Limitations on liability relating to material online (a) Transitory digital network communications.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if—

(1) the transmission of the material was initiated by or at the direction of a person other than the service provider; (2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider; (3) the service provider does not select the recipients of the material except as an automatic response to the request of another person; (4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on356the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and (5) the material is transmitted through the system or network without modification of its content. * * *

Anticybersquatting Consumer Protection Act (ACPA) ACPA defines the offense of "cyber-squatting" in terms similar (but not identical) to those used in the UDRP:

(1)(A) A person shall be liable in a civil action by the owner of a mark * * * if, without regard to the goods or services of the parties, that person (i) has a bad faith intent to profit from that mark * * * ; and (ii) 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; [or] (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 * * * (B)(i) In determining whether a person has a bad faith intent described under subparagraph (a), a court may consider factors such as, but not limited to (I) the trademark or other intellectual property rights of the person, if any, in the domain name; (II) the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person; (III) the person's prior use, if any, of the domain name in connection with the bona fide offering of any goods or services; (IV) the person's bona fide noncommercial or fair use of the mark in a site accessible under the domain name; (V) the person's intent to divert consumers from the mark owner's online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site; (VI) the person's offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, or the person's prior conduct indicating a pattern of such conduct; (VII) the person's provision of material and misleading false contact information when applying for the registration of the domain name, the person's intentional failure to maintain accurate contact information, or the person's prior conduct indicating a pattern of such conduct; (VIII) the person's registration or acquisition of multiple domain names which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, or dilutive of famous marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties; and (IX) the extent to which the mark incorporated in the person's domain name registration is or is not distinctive and famous within the meaning of subsection (c)(1) of this section. 15 U.S.C. §1125(d)(1).

ACPA attempts to address the jurisdictional problems associated with enforcing its judgments against distant entities registering allegedly infringing domain names by providing for in rem jurisdiction over the domain name itself.

(2)(A) The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located if (i) the domain name violates any right of the owner of a mark registered in the Patent and Trademark Office, or protected under subsection (a) or (c); and (ii) the court finds that the owner— (I) is not able to obtain in personam jurisdiction over a person who would have been a defendant in a civil action under paragraph (1); or (II) through due diligence was not able to find a person who would have been a defendant in a civil action under paragraph (1) * * * (C) In an in rem action under this paragraph, a domain name shall be deemed to have its situs in the judicial district in which (i) the domain name registrar, registry, or other domain name authority that registered or assigned the domain name is located; or (ii) documents sufficient to establish control and authority regarding the disposition of the registration and use of the domain name are deposited with the court. (D)(i) The remedies in an in rem action under this paragraph shall be 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. * * * 15 U.S.C. § 1125(d)(2).

DMCA (2) Exception.—Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider—

(A) takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material; (B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and (C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated359agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider's system or network.

DMCA (c) Information residing on systems or networks at direction of users.— (1) In General.—A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—

(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing; (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material; (B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and (C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity. * * *

The Miller test for obscenity:

(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; Would the average person applying contemporary standards find the material appeals to prurient interests? (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and Does the material depict sex in a patently offensive manner? (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Will a reasonable person find the work as a whole lacks serious literary, artistic, political or scientific value?

§ 230. Protection for private blocking and screening of offensive material

(c) Protection for "good samaritan" blocking and screening of offensive material (1) Treatment of publisher or speaker No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. (2) Civil liability No provider or user of an interactive computer service shall be held liable on account of— (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1). * * *

ACLU v. Johnson, 194 F.3d 1149, 1161 (10th Cir. 1999)

(concluding that a New Mexico law criminalizing the dissemination by computer of material harmful to a minor violated the commerce clause because state regulation of the internet necessarily controls transactions outside the state);

See Ferguson v. Friendfinders, Inc., 94 Cal. App. 4th 1255, 115 Cal. Rptr. 2d 258 (Cal. Ct. App. 2002)

(holding that a state law regulating unsolicited e-mail applied only to California residents receiving email through equipment located in California and thus did not regulate conduct outside California);

DMCA (3) Elements of notification.— (A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at357a single online site are covered by a single notification, a representative list of such works at that site. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. —

3 elements to win/defend a UDRP action

(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) you have no rights or legitimate interests in respect of the domain name; and (iii) your domain name has been registered and is being used in bad faith.

DMCA (B)(i) Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent.

(ii) In a case in which the notification that is provided to the service provider's designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).

enforcement jurisdiction

(power to detain and seize assets).

Washington v. Heckel, 143 Wash. 2d 824, 24 P.3d 404 (2001)

(upholding a law prohibiting the dissemination of false or misleading information from a computer in Washington or to an email address in Washington, on the grounds that the statute did not regulate conduct outside the state of Washington).

MaryCLE, LLC v. First Choice98Internet, Inc., 166 Md. App. 481, 525-26, 890 A.2d 818 (Md. Ct. Spec. App. 2006)

(upholding a law prohibiting the transmission of email containing false information to a Maryland email address, on the grounds that the regulation applied only to transactions that used a computer in Maryland or were sent to an address in Maryland);

3.1.4, How does a complainant prove that a respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the complainant's mark?

(v) redirecting the domain name to the complainant's (or a competitor's) website, and (vi) absence of any conceivable good faith use.

The Uniform Dispute Resolution Policy 1(a)

1. Purpose. This Uniform Domain Name Dispute Resolution Policy (the "Policy") has been adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN"), is incorporated by reference into your Registration Agreement, and sets forth the terms and conditions in connection with a dispute between you and any party other than us (the registrar) over the registration and use of an Internet domain name registered by you. * * * 4. Mandatory Administrative Proceeding. This Paragraph sets forth the type of disputes for which you are required to submit to a mandatory administrative proceeding. These proceedings will be conducted before one of the administrative-dispute-resolution151service providers listed at www.icann.org/udrp/approved-providers.htm (each, a "Provider"). a. Applicable Disputes. You are required to submit to a mandatory administrative proceeding in the event that a third party (a "complainant") asserts to the applicable Provider, in compliance with the Rules of Procedure, that (i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) you have no rights or legitimate interests in respect of the domain name; and (iii) your domain name has been registered and is being used in bad faith. In the administrative proceeding, the complainant must prove that each of these three elements are present.

1.7, What is the test for identity or confusing similarity under the first element?

1.7 It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant's trademark and the disputed domain name Issues such as the strength of the complainant's mark or the respondent's intent to provide its own legitimate offering of goods or services without trading off the complainant's reputation, are decided under the second and third elements. Panels view the first element as a threshold test concerning a trademark owner's standing to file a UDRP complaint, i.e., to ascertain whether there is a sufficient nexus to assess the principles captured in the second and third elements.

A. Strong Rules That Protect Consumers from Past and Future Tactics that Threaten the Open Internet 1. Clear, Bright-Line Rules

14. Because the record overwhelmingly supports adopting rules and demonstrates that three specific practices invariably harm the open Internet— Blocking, Throttling, and Paid Prioritization— this Order bans each of them, applying the same rules to both fixed and mobile broadband Internet access service.

2.5.1, 2.5 What are some core factors UDRP panels look at in assessing fair use?

2.5.1 The nature of the domain name Generally speaking, UDRP panels have found that domain names identical to a complainant's trademark carry a high risk of implied affiliation. Even where a domain name consists of a trademark plus an additional term (at the secondor top-level), UDRP panels have largely held that such composition cannot constitute fair use if it effectively impersonates or suggests sponsorship or endorsement by the trademark owner. As described in more detail below and in sections 2.6 through section 2.8, UDRP panels have articulated a broad continuum of factors useful in assessing possible implied sponsorship or endorsement. At one end, certain geographic terms (e.g., , or ), or terms with an "inherent Internet connotation" (e.g., , , or ) are seen as tending to suggest sponsorship or endorsement by the trademark owner. At the other extreme, certain critical terms (e.g., ) tend to communicate, prima facie at least, that there is no such affiliation.

3. Enhanced Transparency

23. The Commission's 2010 transparency rule, upheld by the Verizon court, remains in full effect: A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.

FCC 4. Scope of the Rules 25. The open Internet rules described above apply to both fixed and mobile broadband Internet access service. Consistent with the 2010 Order, today's Order applies its rules to the consumer-facing service that broadband networks provide, which is known as "broadband Internet access service" (BIAS) and is defined to be: A mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the protections set forth in this Part.

26. As in 2010, BIAS does not include enterprise services, virtual private network services, hosting, or data storage services. Further, we decline to apply the open Internet rules to premises operators to the extent they may be offering broadband Internet access service as we define it today. 27. In defining this service we make clear that we are responding to the Verizon court's conclusion that broadband providers "furnish a service to edge providers" (and that this service was being treated as common carriage per se). As discussed further below, we make clear that broadband Internet access service encompasses this service to edge providers. Broadband providers sell retail customers the ability to go anywhere (lawful) on the Internet. Their representation that they will transport and deliver traffic to and from all or substantially all Internet endpoints includes the promise to transmit traffic to and from those Internet endpoints back to the user. 28. Interconnection. BIAS involves the exchange of traffic between a broadband Internet access provider and connecting networks. The representation to retail customers that they will be able to reach "all or substantially all Internet endpoints" necessarily includes the promise to make the interconnection arrangements necessary to allow that access. 248 29. As discussed below, we find that broadband Internet access service is a "telecommunications service" and subject to sections 201, 202, and 208 (along with key enforcement provisions). As a result, commercial arrangements for the exchange of traffic with a broadband Internet access provider are within the scope of Title II, and the Commission will be available to hear disputes raised under sections 201 and 202 on a case-by-case basis: an appropriate vehicle for enforcement where disputes are primarily over commercial terms and that involve some very large corporations, including companies like transit providers and Content Delivery Networks (CDNs), that act on behalf of smaller edge providers. 30. But this Order does not apply the open Internet rules to interconnection. Three factors are critical in informing this approach to interconnection. First, the nature of Internet traffic, driven by massive consumption of video, has challenged traditional arrangements—placing more emphasis on the use of CDNs or even direct connections between content providers (like Netflix or Google) and last-mile broadband providers. Second, it is clear that consumers have been subject to degradation resulting from commercial disagreements, perhaps most notably in a series of disputes between Netflix and large last-mile broadband providers. But, third, the causes of past disruption and—just as importantly—the potential for future degradation through interconnection disputes—are reflected in very different narratives in the record.

How is Policy Developed at ICANN?

A Policy Development Process (PDP) can be initiated by the GNSO Council to look at a specific issue concerning gTLDs. A PDP Working Group, open to anybody (whether a member of a formal Constituency or not), is then formed. At various stages in the process the working group will solicit input from the wider ICANN community through a public comment period. If the working group can reach consensus on a set of policy recommendations, they are sent to the GNSO Council - made up of representatives from each of its constituent groups - for ratification. Agreed GNSO policy recommendations are finally sent to the ICANN Board for their approval as new policy. The Advisory Committees, including the Governmental Advisory Committee (GAC) have their own mechanisms for issuing "advice" to the ICANN Board.

On his 25th birthday, a young man decided to move to State A. He packed his belongings and shipped them to State A to be stored. He intended to drive his car to State A, stay in a hotel until he found an apartment, and then have his belongings delivered to the apartment. As the man drove away from his State B apartment, he was in an automobile accident and suffered severe injuries. He has remained in State B because of his injuries, but still intends to move to State A when he recuperates. While still recuperating in State B, he filed a negligence action against the other driver in federal district court, seeking $500,000 for his injuries. The other driver is a citizen of State B. Does the federal district court have diversity of citizenship jurisdiction over the plaintiff's claim?

A Yes, because the man is deemed a citizen of State A since he intends to live there and already has shipped his belongings there. B No, because the man is deemed to retain his State B citizenship until he leaves the state with intent to live elsewhere. C No, because the man is still a State B citizen since he has not established a home elsewhere. D No, because federal courts do not have subject matter jurisdiction over claims that do not arise under federal law. C- The court does not have diversity of citizenship jurisdiction. Diversity of citizenship jurisdiction is available when (i) there is complete diversity of citizenship, meaning that each plaintiff is a citizen of a different state from every defendant; and (ii) the amount in controversy exceeds $75,000 (here it is $500,000, far exceeding the $75,000 requirement). A natural person's citizenship is the state that is the person's permanent home. A new state citizenship may be established by (i) physical presence in the new place and (ii) the intention to remain there. Both elements must be satisfied. (A) is incorrect because a definite and sincere intent to make a state one's residence sometime in the future is not sufficient to change one's state citizenship. (B) is incorrect because it incorrectly describes how a natural person changes his state citizenship for purposes of diversity jurisdiction. It is not leaving a state that is relevant, but the establishment of a new state citizenship elsewhere that is relevant. (D) is an incorrect statement of the law; federal courts may hear claims based on state law under its diversity of citizenship jurisdiction.

Despite foreclosing monetary relief, section 512 does permit some forms of injunctive relief against service providers.

A court can issue an order requiring any service provider to terminate the account of an identified subscriber "who is using the provider's service to engage in infringing activity." 17 U.S.C. § 512(j)(1)(A)(ii), (B)(i). A court can also restrain a service provider who does not fit into the subsection 512(a) safe harbor from providing access to infringing material "at a particular online site" on its network and order "such other injunctive relief as the court may consider necessary to prevent or restrain infringement of copyrighted material specified in the order." Id. § 512(j)(1)(A)(i), (iii).

1.13, 1.13 Is a domain name consisting of a trademark and a negative term ("sucks cases") confusingly similar to a complainant's trademark?

A domain name consisting of a trademark and a negative or pejorative term (such as <[trademark]sucks.com>, <[trademark]구려.com>, <[trademark]吸.com>, or even ) is considered confusingly similar to the complainant's trademark for the purpose of satisfying standing under the first element.

What is a Domain Name?

A domain name is an address to a unique location on the Internet The Domain Name System (DNS) translates Internet Protocol (IP) addresses from numbers to names (i.e., the domain name for 213.212.81.72 is comlaude.com) Domain names have two parts: the top level and the second level:

In rem under ACPA

ACPA attempts to address the jurisdictional problems associated with enforcing its judgments against distant entities registering allegedly infringing domain names by providing for in rem jurisdiction over the domain name itself. (2)(A) The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located if (i) the domain name violates any right of the owner of a mark registered in the Patent and Trademark Office, or protected under subsection (a) or (c); and (ii) the court finds that the owner— (I) is not able to obtain in personam jurisdiction over a person who would have been a defendant in a civil action under paragraph (1); or (II) through due diligence was not able to find a person who would have been a defendant in a civil action under paragraph (1) * * * (C) In an in rem action under this paragraph, a domain name shall be deemed to have its situs in the judicial district in which (i) the domain name registrar, registry, or other domain name authority that registered or assigned the domain name is located; or (ii) documents sufficient to establish control and authority regarding the disposition of the registration and use of the domain name are deposited with the court. (D)(i) The remedies in an in rem action under this paragraph shall be 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. * * * 15 U.S.C. § 1125(d)(2).

The controversy over the terms under which Internet service providers will have access to broadband platforms began when

AT & T moved to acquire two of the nation's largest cable television companies, TCI and Media One. Each company offered, or planned to offer, broadband Internet access through an affiliated Internet service provider. In proceedings involving the FCC's review of the proposed mergers, Internet service providers and others—including telephone companies—claimed that the FCC should require cable systems to support multiple ISPs and to permit unaffiliated ISPs to compete for the business of cable subscribers. They argued, among other things, that cable-affiliated ISPs would dominate the market for broadband services and could limit users' access to certain content by providing quicker and more reliable access to content supplied by certain preferred providers. Based on these concerns, local franchise authorities decided to impose open access requirements. For example, Portland and Multnomah County voted to approve AT & T's efforts to take over the franchise, but only subject to the following condition: Non-discriminatory access to cable modem platform. Transferee shall provide, and cause the Franchisees to provide, non-discriminatory access to the Franchisees' cable modem platform for providers of Internet and on-line services, whether or not such providers are affiliated with the Transferee or the Franchisees, unless otherwise required by applicable law. So long as cable modem services are deemed to be "cable services," as provided under Title VI of the Communications Act of 1934, as amended, Transferee and the Franchisees shall comply with all requirements regarding such services, including but not limited to, the inclusion of revenues from cable modem services and access within the gross revenues of the Franchisees' cable franchises, and commercial leased access requirements. AT & T refused the condition, which resulted in a denial of the request to transfer the franchises.

o If make the boss responsible are you more liklely to encourage prevention of the bad behavior? If injury is appropriate to find someone responsible or spread the loss? o Whether it would be good to make intermediaries liable? o Is there bad behavior that want to encourage the policing of? ·

Allocative efficiency. "[t]he question is whether the public weal is better served by a rule shifting responsibility to employers in particular kinds of cases. · Loss spreading. The district court observed that "[t]he employer can also normally obtain insurance more cheaply than those who may be injured" and that "the employer will be financially more capable of bearing the risk than the person injured—usually an individual." The court of appeals rejected that rationale as well: "It is true, of course, that in many cases π will not be in a position to insure, and so expansion of liability will, at the very least, serve respondeat superior's loss spreading function. But the fact that ∆ is better able to afford damages is not alone sufficient to justify legal responsibility, and this overarching principle must be taken into account in deciding whether to expand the reach of respondeat superior." · Fairness. The court of appeals ultimately rested its holding on fairness grounds: the court believed that the instinct to impose liability rested on a "deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities."

Who Influences Policy at ICANN?

Anyone can participate in ICANN and join an ICANN working group at no cost You can participate remotely (by phone, email or webinar) throughout the year or attend ICANN meetings in person ICANN meetings are open to all, with most sessions open to anyone In person at a Meeting •You may speak during the working group meetings •You may ask questions •You may make comments or ask questions directly to the ICANN Board at the public forum Submitting comments •You may submit written comments to a working group at any time •You may submit comments during a formal call for public comments

2.9, Do "parked" pages comprising pay-per-click links support respondent rights or legitimate interests?

Applying UDRP paragraph 4(c), panels have found that the use of a domain name to host a parked page comprising PPC links does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of the complainant's mark or otherwise mislead Internet users. Panels have additionally noted that respondent efforts to suppress PPC advertising related to the complainant's trademark (e.g., through so-called "negative keywords") can mitigate against an inference of targeting the complainant. Panels have recognized that the use of a domain name to host a page comprising PPC links would be permissible - and therefore consistent with respondent rights or legitimate interests under the UDRP - where the domain name consists of an actual dictionary word(s) or phrase and is used to host PPC links genuinely related to the dictionary meaning of the word(s) or phrase comprising the domain name, and not to trade off the complainant's (or its competitor's) trademark.

Does a criticism site support respondent rights or legitimate interests?

As noted above, UDRP jurisprudence recognizes that the use of a domain name for fair use such as noncommercial free speech, would in principle support a respondent's claim to a legitimate interest under the Policy. 2.6.1 To support fair use under UDRP paragraph 4(c)(iii), the respondent's criticism must be genuine and noncommercial; in a number of UDRP decisions where a respondent argues that its domain name is being used for free speech purposes the panel has found this to be primarily a pretext for cybersquatting, commercial activity, or tarnishment. 2.6.2 Panels find that even a general right to legitimate criticism does not necessarily extend to registering or using a domain name identical to a trademark (i.e., <trademark.tld> (including typos)); even where such a domain name is used in relation to genuine noncommercial free speech, panels tend to find that this creates an impermissible risk of user confusion through impersonation. In certain cases involving parties exclusively from the United States, some panels applying US First Amendment principles have found that even a domain name identical to a trademark used for a bona fide noncommercial criticism site may support a legitimate interest. 2.6.3 Where the domain name is not identical to the complainant's trademark, but it comprises the mark plus a derogatory term (e.g., <trademarksucks.tld>), panels tend to find that the respondent has a legitimate interest in using the trademark as part of the domain name of a criticism site if such use is prima facie noncommercial, genuinely fair, and not misleading or false. Some panels have found in such cases that a limited degree of incidental commercial activity may be permissible in certain circumstances (e.g., as "fundraising" to offset registration or hosting costs associated with the domain name and website).

2.6, Does a criticism site support respondent rights or legitimate interests?

As noted above, UDRP jurisprudence recognizes that the use of a domain name for fair use such as noncommercial free speech, would in principle support a respondent's claim to a legitimate interest under the Policy. 2.6.1 To support fair use under UDRP paragraph 4(c)(iii), the respondent's criticism must be genuine and noncommercial; in a number of UDRP decisions where a respondent argues that its domain name is being used for free speech purposes the panel has found this to be primarily a pretext for cybersquatting, commercial activity, or tarnishment.

2.7, Does a fan site support respondent rights or legitimate interests in a domain name?

As with criticism sites discussed above, for purposes of assessing fair use under UDRP paragraph 4(c)(iii), a respondent's fan site must be active, genuinely noncommercial, and clearly distinct from any official complainant site. A

Google has monopoly power in the search advertising market.

Based on public estimates of total search advertising spending in the United States, Google's share of the U.S. search advertising market is over 70 percent. This market share understates Google's market power in search advertising because many search-advertising competitors offer only specialized search ads and thus compete with Google only in a limited portion of the market. 109. Google also has monopoly power in the general search text advertising market. Google's market share of the U.S. general search text advertising market also exceeds 70 percent. Google's share of the general search text advertising market well exceeds its share of the search advertising market. 110. There are barriers to entry in these advertising markets that protect Google's advertising monopolies. Most critically, search advertising of any kind requires a search engine with sufficient scale to make advertising an efficient proposition for businesses. Specialized search engines require significant investment, including the cost of populating and indexing relevant data, distribution, developing and maintaining a search algorithm, and attracting users. Search advertising of any kind also requires (1) a user interface through which advertisers can buy ads, (2) software to facilitate the sales process, and (3) a sales and technical support staff. The same barriers to entry that apply to general search services also protect Google's general search text advertising monopoly.

ICANN and Domain Names

Both ccTLDs and gTLDs are delegated into the root zone by ICANN • •ccTLDs are managed by a national authority or contracted out to an organization to operate on behalf of the national government: • .AU is managed by auDA, a body authorized by the Australian govt. .CO is managed by Neustar, a gTLD registry which markets .CO as a "generic" TLD •gTLDs are managed by registries who contract with ICANN to manage the name spaces Verisign operates .COM, Amazon operates .BOT

21. The bright-line bans on blocking, throttling, and paid prioritization will go a long way to preserve the virtuous cycle.

But not all the way. Gatekeeper power can be exercised through a variety of technical and economic means, and without a catch-all standard, it would be that, as Benjamin Franklin said, "a little neglect may breed great mischief." Thus, the Order adopts the following standard: Any person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not unreasonably interfere with or unreasonably disadvantage (i) end users' ability to select, access, and use broadband Internet access service or the lawful Internet content, applications, services, or devices of their choice, or (ii) edge providers' ability to make lawful content, applications, services, or devices available to end users. Reasonable network management shall not be considered a violation of this rule.

· Objective Standard:

CALI contract law measures assent by an objective standard that takes into account both what the offeree said, wrote, or did and the transactional context in which the offeree verbalized or acted. Here, a reasonably prudent offeree in π' position would not necessarily have known or learned of the existence of the SmartDownload license agreement prior to acting, so that πs may be held to have assented to that agreement with constructive notice of its terms. · Arbitration Clause: "Clarity and conspicuousness of arbitration terms are important in securing informed assent." Because the user π did not assent to the license agreement, they are not subject to the arbitration clause § Users were not made aware that they were entering into a contract. · "The only hint that a contract is being formed is one small box of text referring to the license agreement, text that appears below the screen used for downloading and that a user need not even see before obtaining the product." · The link at the bottom of the page did not make it clear that a user was required to read the license or provide adequate notice that a contract was being formed. · "When products are "free" and users are invited to download them in the absence of reasonably conspicuous notice that they are about to bind themselves to contract terms, the transactional circumstances cannot be fully analogized to those in the paper world of arm's-length bargaining."

15. No Blocking.

Consumers who subscribe to a retail broadband Internet access service must get what they have paid for—access to all (lawful) destinations on the Internet. This essential and well-accepted principle has long been a tenet of Commission policy, stretching back to its landmark decision in Carterfone, which protected a customer's right to connect a telephone to the monopoly telephone network. Thus, this Order adopts a straightforward ban: A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management.

VIOLATIONS ALLEGED

First Claim for Relief: Maintaining Monopoly of General Search Services in Violation of Sherman Act § 2 173. Plaintiffs incorporate the allegations of paragraphs 1 through 172 above. 174. General search services in the United States is a relevant antitrust market and Google has monopoly power in that market. 175. Google has willfully maintained and abused its monopoly power in general search services through anticompetitive and exclusionary distribution agreements that lock up the preset default positions for search access points on browsers, mobile devices, computers, and other devices; require preinstallation and prominent placement of Google's apps; tie Google's search access points to Google Play and Google APIs; and other restrictions that drive queries to Google at the expense of search rivals. 176. Google's exclusionary conduct has foreclosed a substantial share of the general search services market. 177. Google's anticompetitive acts have had harmful effects on competition and consumers. 178. The anticompetitive effects of Google's exclusionary agreements outweigh any procompetitive benefits in this market, or can be achieved through less restrictive means. 179. Google's anticompetitive and exclusionary practices violate Section 2 of the Sherman Act, 15 U.S.C. § 2. Second Claim for Relief: Maintaining Monopoly of Search Advertising in Violation of Sherman Act § 2 180. Plaintiffs incorporate the allegations of paragraphs 1 through 172 above. 181. Search advertising in the United States is a relevant antitrust market and Google has monopoly power in that market. 182. Google has willfully maintained and abused its monopoly power in search advertising through anticompetitive and exclusionary distribution agreements that lock up the preset default positions for search access points on browsers, mobile devices, computers, and other devices; require preinstallation and prominent placement of Google's apps; tie Google's search access points to Google Play and Google APIs; and other restrictions that benefit Google at the expense of search advertising rivals. 183. Google's exclusionary conduct has foreclosed a substantial share of the search advertising market. 184. Google's anticompetitive acts have had harmful effects on competition, advertisers, and consumers. 185. The anticompetitive effects of Google's exclusionary agreements outweigh any procompetitive benefits in this market, or can be achieved through less restrictive means. 186. Google's anticompetitive and exclusionary practices violate Section 2 of the Sherman Act, 15 U.S.C. § 2. Third Claim for Relief: Maintaining Monopoly of General Search Text Advertising in Violation of Sherman Act § 2 187. Plaintiffs incorporate the allegations of paragraphs 1 through 172 above. 188. General search text advertising in the United States is a relevant antitrust market, and Google has monopoly power in that market. 189. Google has willfully maintained and abused its monopoly power in general search text advertising through anticompetitive and exclusionary distribution agreements that lock up the preset default positions for search access points on browsers, mobile devices, computers, and other devices; require preinstallation and prominent placement of Google's apps; tie Google's Case 1:20-cv-03010 Document 1 Filed 10/20/20 Page 56 of 64 57 search access points to Google Play and Google APIs; and other restrictions that benefit Google at the expense of general search text advertising rivals. 190. Google's exclusionary conduct has foreclosed a substantial share of the general search text advertising market. 191. Google's anticompetitive acts have had harmful effects on competition, advertisers, and consumers. 192. The anticompetitive effects of Google's exclusionary agreements outweigh any procompetitive benefits in this market, or can be achieved through less restrictive means. 193. Google's anticompetitive and exclusionary practices violate Section 2 of the Sherman Act, 15 U.S.C. § 2.

somebody send you a notice And you're, you're just a platform you receive notice in the copyright owner and you do two things.

First you send a notice to the host of the party that rather than the posting party you tell them that you've received a notice and you tell them that you're taking it out and you go ahead and take it down. But the posting party can give you a counter notice and they can say, wait a minute. There's nothing wrong with that. I've got a good defense, put it back up. And if you get a proper counter notice then YouTube can put it back up and YouTube, essentially, it's like an interpreter action YouTube steps back and says,. You gave me. Notice I took down the offending material I received a counter. Notice I put back up the infringing material. Now it's between you guys you guys knock yourselves out. if there is a counter notice it goes back up. That's the model that is involved absent an injunction, , the owner of the copyright needs to now go into court and get an injunction, but the defendant, there is the party that post it rather than the intermediary.

In rem ACPA suits must meet several jurisdictional requirements.

First, the ACPA allows a trademark owner to file an in rem action only in specific jurisdictions, namely "in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located." 15 U.S.C. § 1125(d)(2)(A). This statutory requirement is satisfied here because the domain name registry in this case, VeriSign, is located within this district in Dulles, Virginia. Second, in rem actions under the ACPA are appropriate only if there is no personal jurisdiction over the registrant in any district. See ACPA, § 1125(d)(2)(A)(ii)(I). This requirement is also plainly met, as there is no evidence that Park or Fanmore have conducted or transacted business in any district in the United States, nor is there any evidence that their actions constitute sufficient minimum contacts to support personal jurisdiction in the United States. See International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). While it is true that the infringing domain name is included in the VeriSign registry, this is not enough to establish minimum contacts; indeed, even if the registrar were also located in this district, the resultant contacts would still be too minimal to support jurisdiction. * * * Third, GlobalSantaFe has properly perfected service, as required by the ACPA, by sending notice to the registrant's listed email and postal addresses and by publishing notice in Korean newspapers as directed by Order dated October 23, 2002. See 15 U.S.C § 1125(d)(2)(A)(ii)(aa) & (bb).

Two assumptions underlying the FCC's initial decision to classify broadband Internet access services as information services merit attention.

First, the FCC assumed that it retained broad power to regulate these services under its Title One ancillary jurisdiction. That is, by classification, the FCC established that the services were not subject to Title Two common carrier regulation. But the FCC, and the Supreme Court in Brand X, assumed the FCC still could exercise discretion in regulating broadband access providers. In 2008, the FCC relied on its ancillary jurisdiction to resolve a complaint filed by Free Press and others against Comcast concerning the company's network management practices—specifically, its practice of interfering with customers' use of peer-to-peer applications. The FCC found the practices unreasonable and in conflict with various federal policies. In re Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications, 23 F.C.C.R. 13,028 (2008). But in 2010, the United States Court of Appeals for the D.C. Circuit held that the FCC lacked ancillary authority to regulate Comcast's network management practices. Comcast Corp. v. F.C.C., 600 F.3d 642 (D.C. Cir. 2010). (Ancillary jurisdiction involves a rather technical issue of administrative law concerning the nature and scope of regulatory authority delegated by

3.3, Can the "passive holding" or non-use of a domain name support a finding of bad faith?

From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or "coming soon" page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant's mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent's concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, , Transfer

"If I comply with the NIST Cybersecurity Framework, am I complying with what the FTC requires?"

From the perspective of the staff of the Federal Trade Commission, NIST's Cybersecurity Framework is consistent with the processbased approach that the FTC has followed since the late 1990s, the 60+ law enforcement actions the FTC has brought to date, and the agency's educational messages to companies, including its recent Start with Security guidance. First, a little background.

Challenges with Redacted Whois

GDPR includes a "right to be forgotten" as well as a right to have to consent to the continuing publication of personal data (regardless if the data has been archived before the act kicked in) • Until such time as there are other ways to get this information for legitimate purposes, brand owners are relying on archived WhoIs tools as a stopgap for domains registered to combat domain infringement • Issues of accuracy since the data gets staler by the day • Legal actions already taken against methods for collecting WhoIs data

Second, if PageRanks fall within the scope of protection afforded by the First Amendment, is the publication of PageRanks per se lawful under Oklahoma law, thereby precluding tort liability premised on the intentional and even malicious manipulation of PageRanks by Google?

Having determined that PageRanks are constitutionally protected opinions, the Court must now consider whether, under Oklahoma law, Google is immune from tort liability arising out of the intentional manipulation of PageRanks. In Jefferson County, the Tenth Circuit concluded that under Colorado law, protected speech cannot constitute improper interference in the context of a claim for tortious interference with contractual relations. The Court finds that Oklahoma law compels the same conclusion in this case. * * * [U]nder Oklahoma law, protected speech—in this case, PageRanks—cannot give rise to a claim for tortious interference with contractual relations because it cannot be considered wrongful, even if the speech is motivated by hatred or ill will.

1. Regulation by Contract: Process and Formation · ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996): Facts: ProCD, Inc. created a CD-ROM mega-phonebook compilation of more than 3000 telephone directories at a cost of approximately $10 million over a two-year period. The packaging of each CD-ROM product included written notice that a license was enclosed in the database application, limiting its use to non-commercial purposes. The license restrictions also appeared on the computer screen each time the end user executed the software, and were set out in the software user's manual. A Wisconsin computer science student, Matthew Zeidenberg, purchased the ProCD database application and developed his own software to access the database. Zeidenberg then placed the resulting database on an Internet server and charged a fee for third parties to access it. ProCD filed suit against Zeidenberg, alleging that he breached the terms of the shrinkwrap license when he placed the database on the server and provided access across the Internet. ·

Held: ProCD's shrinkwrap license was enforceable and prohibited Zeidenberg's use of the database. The consumer was bound by the terms of the license agreement, the ProCD court stated that "[n]otice on the outside, terms on the inside, and a right to return the software for a refund if the terms are unacceptable (a right the license expressly extends), may be a means of doing business valuable to buyers and sellers alike." 86 F.3d at 1451. · proposition that shrinkwrap agreements are valid, and the terms contained within them are enforceable, because the purchaser accepts the terms when it uses the product · "we treat the licenses as ordinary contracts accompanying the sale of products, and therefore as governed by the common law of contracts and the Uniform Commercial Code." · The vendor is the master of the offer under the UCC and may invite acceptance by conduct or limit the kind of conduct that constitutes acceptance. 86 F.3d at 1452. The court found that ProCD proposed a contract that invited acceptance by using the software after having an opportunity to review the license. If the buyer disagreed with the terms of the contract, he or she could return the software. · The offer to sell software to the consumers was not accepted until the consumers opened the packaging with the terms of the sale enclosed and retained the product after having an opportunity to read the terms of the sale. · Zeidenberg's argued that copyright law preempted the use of such a shrinkwrap license. o Seventh Circuit observed: "courts usually read preemption clauses to leave private contracts unaffected ... [j]ust as [the copyright preemption clause] does not itself interfere with private transactions in intellectual property, so it does not prevent states from respecting those transactions." o The rights created from contracts and copyright law are different. If state law § Copyrights®"Rights "equivalent to any of the exclusive rights within the general scope of copyright" are rights established by law—rights that restrict the options of persons who are strangers to the author." § Contracts ® "generally affect only their parties; strangers may do as they please, so contracts do not create "exclusive rights." · Rule: Shrinkwrap licenses are enforceable unless their terms are objectionable on grounds applicable to contracts in general. · Ability to protect info not otherwise be protected.

· Fteja v. Facebook, Inc., 841 F. Supp. 2d 829 (S.D. New York, 2012): Facts: π alleged that Facebook disabled his account for discriminatory reasons. ∆=FB; social networking website . Joinder of new π; FB opposes and moves to transfer venues under 1404(a) and motion to dismiss. FSC included in the terms and conditions of ∆'s terms of use. o Issue whether terms have been "reasonably communicated where a consumer must take further action not only, as in a clickwrap agreement, to assent to the terms but also, as in a browsewrap agreement, to view them?" ·

Held: assented to the Terms of Use and therefore to the forum selection clause therein. § Facebook terms of use: the second Sign-Up page indicated that additional action beyond merely visiting that page, namely, clicking "Sign-Up," would manifest agreement to the Terms of Use. Because Π was informed of the consequences of his assenting click and he was shown, immediately below, where to click to understand those consequences. That was enough.

Why is ICANN Valuable to Rights Holders

ICANN is important for trademark rights-holders because: •It sets the overarching rules governing gTLDs (not to be confused with ccTLDs, or country code top level domains) such as: • •What terms can / cannot be registered •What must be published in the WHOIS • •It sets the rules governing the UDRP (the dispute mechanism for gTLDs) and other rights protection measures • •It sets the rules for the introduction of new Top Level Domains •It is not responsible for regulating content on the Internet.

How Does ICANN Work?

ICANN is the place where policy governing gTLDs is formulated. •The model of policy formulation is known as the "Policy Development Process" or "PDP". • •The PDP is a bottom-up, multi-stakeholder process, which means that rather than policy being decided in a top down process, it is developed by consensus in multi-disciplinary working groups of volunteers and then approved by the ICANN Board of Directors. Formally, input to the ICANN Board comes from seven Supporting organizations and Advisory Committees. •One of these, the Generic Names Supporting organization (GNSO), is responsible for developing policy for gTLDs. The Country Code Supporting Organization (ccNSO) is responsible for providing advice to the ICANN Board about certain limited ccTLD policies. • •ccTLD Policies are generally controlled by their own local internet communities.

Why a Rights Holder Might Wish to Attend ICANN

ICANN's work is continuous year-round, but it's three annual open meetings are where major developments occur. Attending an ICANN meeting is: •A chance to influence - ICANN staff, working group members, ICANN Board, ICANN community members - governments, registries, registrars • •A chance to network - across the business and non-business spectrum • •A chance to listen to the latest developments on the key policy processes which are running • •A chance to get involved in the shape of new policy, by getting on the working groups

The impact of the government's regulation of the telecommunications market on the development of the Internet is obvious.

If an incumbent telephone company cannot favor its affiliated provider in the sale of its services, the market is open for service providers offering a range of services under different pricing models. In fact, many ISPs entered the market, and for a time, the market was quite competitive.

In an abundance of caution, and to avoid the kind of misunderstanding the dissent seems to encourage, we offer a few examples to elucidate what does and does not amount to "development" under section 230 of the Communications Decency Act:

If an individual uses an ordinary search engine to query for a "white roommate," the search engine has not contributed to any alleged unlawfulness in the individual's conduct; providing neutral tools to carry out what may be unlawful or illicit searches does not amount to "development" for purposes of the immunity exception. A dating website that requires users to enter their sex, race, religion and marital status through drop-down menus, and that provides means for users to search along the same lines, retains its CDA immunity insofar as it does not contribute to any alleged illegality; this immunity is retained even if the website is sued for libel based on these characteristics because the website would not have contributed materially to any alleged defamation. Similarly, a housing website that allows users to specify whether they will or will not receive emails by means of user-defined criteria might help some users exclude email from other users of a particular race or sex. However, that website would be immune, so long as it does not require the use of discriminatory criteria. A website operator who edits user-created content—such as by correcting spelling, removing obscenity or trimming for length—retains his immunity for any illegality in the user-created content, provided that the edits are unrelated to the illegality. However, a website operator who edits in a manner that contributes to the alleged illegality—such as by removing the word "not" from a user's message reading "[Name] did not steal the artwork" in order to transform an innocent message into a libelous one—is directly involved in the alleged illegality and thus not immune.

3.1.1, How does a complainant prove that a respondent has registered or acquired a domain name primarily to sell the domain name to the complainant (or its competitor) for valuable consideration in excess of the respondent's costs related to the domain name?

If on the other hand circumstances indicate that the respondent's intent in registering the disputed domain name was in fact to profit in some fashion from or otherwise exploit the complainant's trademark, panels will find bad faith on the part of the respondent. While panel assessment remains fact-specific, generally speaking such circumstances, alone or together, include: (i) the respondent's likely knowledge of the complainant's rights, (ii) the distinctiveness of the complainant's mark, (iii) a pattern of abusive registrations by the respondent, (iv) website content targeting the complainant's trademark, e.g., through links to the complainant's competitors, (v) threats to point or actually pointing the domain name to trademark-abusive content, (vi) threats to "sell to the highest bidder" or otherwise transfer the domain name to a third party, (vii) failure of a respondent to present a credible evidence-backed rationale for registering the domain name, (viii) a respondent's request for goods or services in exchange for the domain name, (ix) a respondent's attempt to force the complainant into an unwanted business arrangement, (x) a respondent's past conduct or business dealings, or (xi) a respondent's registration of additional domain names corresponding to the complainant's mark subsequent to being put on notice of its potentially abusive activity Offers to sell: Taking the above scenarios into account, panels have generally found that where a registrant has an independent right to or legitimate interest in a domain name, an offer to sell that domain name would not be evidence of bad faith for purposes of the UDRP, irrespective of which party solicits the prospective sale. This also includes "generalized" offers to sell, including those on a third-party platform.

various third party platforms - intermediate platforms. notion that one could avoid liability by doing nothing.

If you did nothing with respect to the users of your, of your platforms. And doing nothing option cubby case and which they say well you know there's no liability for copy serve because all they do is just post this stuff and because they all they do is just post anything. There's no liability. prodigy case. Liability on behalf of prodigy because they purport to exercise some editorial control. So if you for example, if you, if you look at what Facebook is doing today with respect to taking down hate speech in the light Under under the Stratton Oakmont versus prodigy case because there is some kind of editorial control being asserted, you end up in exposing yourself to liability and the the big paradigm is that if you were a distributor.And the law before the internet was if you're you know if there's a you take the example of a newspaper and the you know the Wall Street Journal could be sued for libel and defamation. But someone who is a new stand on the corner that's just reselling the papers. They're not liable. So which are you more like a distributor of the newspaper or are you a publisher of the paper and the law before We get into the internet era is distributors are not liable. Publishers are and the distinction has to do with whether you create the content or simply You're just a conduit for passing on the content. CDA decision that online platforms unless they create content Are going to be treated as distributors, rather than publishers

The Uniform Rapid Suspension System

In 2011, ICANN's Board of Directors approved an enormous expansion of the generic top-level domain (gTLD) system beyond the the 22 gTLDs1 then operating. In January, 2012, ICANN began accepting applications from private companies or organizations that wished to administer new gTLDs consisting essentially of any string of characters, including non-Latin characters. In October, 2013, ICANN "delegated" the first new gTLDs: شبكة† (Arabic for "web/network", International Domain Reg istry Pty. Ltd), онлайн (Cyrillic for "online", CORE Association), сайт (Cyrillic for "site", CORE Association) and 游戏 (Chinese for "game(s)", S pring Fields, LLC). From October 2013 through 2019, ICANN delegated over 1,200 new gTLDs.2

one focused on nondiscriminatory service to consumers.

In the second type of intervention, government may require an infrastructure owner to provide nondiscriminatory access to all customers. In such cases, the owner may be deemed to be a "common carrier." Common carrier obligations arose in common law for a range of businesses that opened their doors to the public, ranging from inn keepers to freight carriers. It was applied broadly to early communications and transportation industries, for example, telegraph and railroads. It became a core concept in the regulatory regimes developed to govern public utilities and modern network infrastructure, though in some of these contexts the nondiscrimination rule is not called common carriage. Historically, common carrier style obligations for infrastructure were said to arise in markets "affected with the public interest." This type of intervention typically requires an infrastructure provider to provide nondiscriminatory service to all customers at reasonable rates. A duty to provide such service is not absolute, however. Providers could refuse service when facing unreasonably high risks or capacity constraints. Price discrimination based on identity generally was disallowed, yet common carrier regulation sometimes permitted certain types of discrimination among customers. Permissible discrimination, which varied under different common carrier regimes, typically involved categorical differentiation among classes of customers, sometimes based on cost (e.g., charging different rates for transporting goods based on weight or standard of care), sometimes based on value (e.g., charging different rates for transporting equal weights of coal and diamonds), and sometimes based on some mix of cost- and value-based criteria. The conventional justifications for common carrier type regulation include both economic and non-economic concerns. As with the first type of intervention, the second type has at times been justified to deal with antitrust and regulatory economic concerns about monopolistic supply and economic consequences for consumers in dependent markets. But it also can be justified to deal with a host of other public interest concerns. Barbara Cherry, Thomas Nachbar, and other scholars have suggested that common carrier and similar access-promoting doctrines historically depended on various public interest justifications that do not depend upon concerns about competition (or lack thereof). For example, Barbara Cherry has emphasized how common carriage fundamentally addressed "economic coercion arising from inequality of bargaining power between provider and customer of an essential service." * * * Nachbar emphasizes that common carrier style obligations have been imposed on owners of facilities that are part of a network even if the facilities in question are not essential or do not give rise to market power. Nachbar suggests that nondiscrimination may be an attractive public strategy for reducing transaction costs associated with standardization of terms and

IP geolocation relies on

Internet protocol addresses, the structural feature of the Internet that permits computers to identify and communicate with one another.

· Hiq Labs, Inc., Plaintiff-Appellee,V. Linkedin Corporation, Ninth Circuit.F- Facts ·

LinkedIn, a platform for professionals to share their resumes and career information. A startup firm, hiQ, used LinkedIn's public data platform as a basis for analysis to provide companies with novel insights such as identifying career opportunities, recommending bonuses, or identifying needed training. Initially, LinkedIn offered no analogous service to hiQ and in fact embraced a relationship with the company for several years, perhaps because hiQ's services were a value-add atop LinkedIn's platform. Yet in May 2017, LinkedIn demanded that hiQ cease and desist from accessing any further LinkedIn data, threatening to invoke the CFAA and essentially putting an end to hiQ's business. Just months later, LinkedIn announced its own new product, Talent Insights, which offered data insights highly similar to hiQ's. In other words, LinkedIn positioned itself to absorb hiQ's business just as LinkedIn invoked the CFAA to shut hiQ down. LinkedIn's introducing an alternative service to hiQ may well have been procompetitive, but forcibly excluding hiQ was almost certainly not. Indeed, the Ninth Circuit stated that "LinkedIn's conduct may well not be 'within the realm of fair competition. "' Specifically, a platform company favoring its own platform-using product by denying competitors access to the platform is a form of "input foreclosure," which antitrust scholars and enforcement agencies have long wrestled with and often found to be problematic.

Cybersecurity:

Measures taken to protect a computer or computer system against unauthorized access or attack

Why was there no SJ in Tomelleri?

No nexus. It does not appear that ∆'s incorporation of Kansas specific features into the app are in any way relevant to the merits of plaintiffs claims for copyright infringement. App's information about the lake had nothing to do with the copyright infringement. If all you have is information about Kansas lakes then no connection to copyright infringement claim and defendant wins motion to dismiss/granted no personal jurisdiction.If change the facts where the app information about the lake produces an image of a fish and that fish is one of copyrighted plaintiffs paintings then have a connection between the minimum contacts (The information about lakes) and the cause of action, the image of the fish.

GDPR, Whois, and ICANN's Response

On 25 May 2018, the General Data Protection Regulation (GDPR) came into force in Europe •The GDPR is perhaps best known for its substantial fines for organizations that do not comply (up to 4% of total global annual earnings) •The GDPR establishes jurisdiction on the citizenship of an individual, rather than their location The GDPR coming into force triggered Whois going dark •Registries and registrars started redacting registrant data ahead of 25 May 2018 to avoid the fines •ICANN issued a Temporary Specification requiring certain contact information to remain public An expedited policy development process (EPDP) was initiated to establish a GDPR-compliant data collection policy for registries and registrars

2.8.1, Panels have recognized that resellers, distributors, or service providers using a domain name containing the complainant's trademark to undertake sales or repairs related to the complainant's goods or services may be making a bona fide offering of goods and services and thus have a legitimate interest in such domain name.

Outlined in the "Oki Data test", the following cumulative requirements will be applied in the specific conditions of a UDRP case: (i) the respondent must actually be offering the goods or services at issue; (ii) the respondent must use the site to sell only the trademarked goods or services; (iii) the site must accurately and prominently disclose the registrant's relationship with the trademark holder; and (iv) the respondent must not try to "corner the market" in domain names that reflect the trademark.

§ No Paid prioritization:

Paid prioritization occurs when a broadband provider accepts payment (monetary or otherwise) to manage its network in a way that benefits particular content, applications, services, or devices. · Common carriers- ex.: airplanes, trains okay because categories · "A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not engage in paid prioritization." · Policy debates: argument is that if people want to pay for it then it would be valuable. Chicago school of economics. Whether it would be good for economy to allow for price differentiation with respect to the internet? § These now allowed b/c vacated. Cali says will have own net neutrality rules that are stricter than FCC rules. § Trump administration sued Cali that says illegal for state to implement own rules and then cali joins suit in dc ciruit and argue classification of ISP as telecommunications???

2.13.1, How do panels treat complainant claims of illegal (e.g., counterfeit) activity in relation to potential respondent rights or legitimate interests?

Panels have categorically held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent. Particularly in the case of counterfeits and pharmaceuticals, this is true irrespective of any disclosure on the related website that such infringing goods are "replicas" or "reproductions" or indeed the use of such term in the domain name itself.

3.5, Can third-party generated material "automatically" appearing on the website associated with a domain name form a basis for finding bad faith?

Particularly with respect to "automatically" generated pay-per-click links, panels have held that a respondent cannot disclaim responsibility for content appearing on the website associated with its domain name (nor would such links ipso facto vest the respondent with rights or legitimate interests).

3.1, How does a complainant prove a respondent's bad faith?

Policy criteria: bad faith under the UDRP is broadly understood to occur where a respondent takes unfair advantage of or otherwise abuses a complainant's mark. To facilitate assessment of whether this has occurred, and bearing in mind that the burden of proof rests with the complainant, UDRP paragraph 4(b) provides that any one of the following non-exclusive scenarios constitutes evidence of a respondent's bad faith: (i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent's documented out-of-pocket costs directly related to the domain name; or (ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or (iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the respondent's website or location or of a product or service on the respondent's website or location.

NSA decision: content and the locations, stored communications act

Stored communications act Wiretapping requires a search warrant Email is not a transmission If email is less than 180 If email longer than 180 days then can be obtained by subpoena and not a search warrant The court draws a distinction between the content of emails Does the internet service provider do they have access to the content Holds: even if have the ability then still expectation of privacy 544 Distinction that even if doc that give s right to look at the content to test for terrorism if don't really use and no expectation that going to be used in the ordinary course then takes away the expectation of privacy How going to decide if expectation of privacy If legislation that expectation of privacy but in many cases no legislation If practice for asking for consent that is evidence that expectation of privacy, the mere fact that permission requested is evidence than expectation of privacy. We are shaping the expectation of privacy the fact that regularly give consent to location

Section 512 creates two other safe harbors for service providers.

Subsections 512(b) and (e), respectively, limit the liability of service providers for caching information and the liability of nonprofit educational institutions who act as service providers.

16. No Throttling.

The 2010 open Internet rule against blocking contained an ancillary prohibition against the degradation of lawful content, applications, services, and devices, on the ground that such degradation would be tantamount to blocking. This Order creates a separate rule to guard against degradation targeted at specific uses of a customer's broadband connection: A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not impair or degrade lawful Internet traffic on the basis of Internet content, application, or service, or use of a non-harmful device, subject to reasonable network management.

the Stored Communications Act(''SCA'').

The Act ''protects the privacy ofthe contents of files stored by service pro-viders and of records held about the sub-scriber by service providers,'' according tothe Justice Department.

Extraterritorial Regulation Rule

The Commerce clause forbids a state from regulating commerce "that takes place wholly outside of the State's borders, whether or not the commerce has effects within the State." Healy v. Beer Inst., 491 U.S. 324, 336 (1989)

Two questions remain. First, are PageRanks constitutionally protected opinions?

The Court answers both questions in the affirmative. * * * Google argues that PageRanks are subjective opinions, not unlike Moody's review of the school district's refunding bonds in Jefferson County. * * * Here, the process, which involves the application of the PageRank algorithm, is objective in nature. In contrast, the result, which is the PageRank—or the numerical representation of relative significance of a particular web site—is fundamentally subjective in nature. This is so because every algorithm employed by every search engine is different, and will produce a different representation of the relative significance of a particular web site depending on the various factors, and the weight of the factors, used to determine whether a web site corresponds to a search query. In the case at bar, it is the subjective result, the PageRank, which was modified, and which forms the basis for Search King's tort action. * * * Court finds that PageRanks relate to matters of public concern, in this case, via the "World Wide Web." In addition, the Court finds that PageRanks do not contain provably false connotations. PageRanks are opinions—opinions of the significance of particular web sites as they correspond to a search query. Other search engines express different opinions, as each search engine's method of determining relative significance is unique. The Court simply finds there is no conceivable way to prove that the relative significance assigned to a given web site is false. Accordingly, the Court concludes that Google's PageRanks are entitled to "full constitutional protection." Jefferson County, 175 F.3d at 852 (quoting Milkovich, 497 U.S. at 20).

How can a company use the Framework and the FTC's Start with Security guidance?

The Framework's five Core functions can serve as a model for companies of all sizes to conduct risk assessments and mitigation, and can be used by companies to: (1) establish or improve a data security program; (2) review current data security practices; or (3) communicate data security requirements with stakeholders. And as the FTC's enforcement actions show, companies could have better protected consumers' information if they had followed fundamental security practices like those highlighted in the Framework. In addition, given that the FTC's enforcement actions align well with the Framework's Core functions, companies should review the FTC's publication, Start with Security, which summarizes lessons learned from the FTC's data security cases and provides practical guidance to reduce cybersecurity risks. Applying the risk management approach presented in the Framework with a reasonable level of rigor—as companies should do—and applying the FTC's Start with Security guidance will raise the cybersecurity bar of the nation as a whole and lead to more robust protection of consumers' data.

Dealing with GDPR

The GDPR sets out seven principles for the lawful processing of personal data. Processing includes the collection, organization, structuring, storage, alteration, consultation, use, communication, combination, restriction, erasure or destruction of personal data. Broadly, the seven principles are : •Lawfulness, fairness and transparency •Purpose limitation •Accuracy •Storage limitation •Integrity and confidentiality (security) •Accountability • The principles are at the center of the GDPR; they are the guiding principles of the regulation and compliant processing.

The Generic Names Supporting Organization (GSNO

The GNSO is responsible for developing policy for gTLDs within ICANN. The GNSO Council is responsible for oversight over the policy development process. The GNSO is a multi-stakeholder body made up of Contracted Parties (i.e. gTLD registries and registrars, which all have contracts with ICANN) and Non-contracted Parties. The Non-contracted Parties are further split into Commercial and Non-commercial Stakeholder Groups. Civil society advocates, academics, and non-profit organizations sit in the Non-commercial Stakeholder Group, while separate Constituencies for Business, ISPs, and Intellectual Property professionals make up the Commercial Stakeholder Group. Rights Holders traditionally participate in ICANN through the Intellectual Property Constituency (IPC). With the birth of .brand registries, some have now taken a seat at the registry's table as well.

3.10 Will panels consider statements made in settlement discussions?

The UDRP framework, and WIPO's specific panel-fee-refund practice, encourages settlement between parties. [See generally section 4.9.] In the UDRP context, panels tend to view settlement discussions between the parties as "admissible", particularly insofar as such discussions may be relevant to assessing the parties' respective motivations. If, for example, negotiations between UDRP parties confirm that the respondent's intent was merely to capitalize on the complainant's rights (as opposed to using the domain name for prima facie legitimate purposes, possibly including resale), this would be material to a panel's assessment of bad faith.

how, for example, can United States law, and United States courts, provide a remedy for an infringing domain name registration in cases where the registrant is located outside the United States borders?

The UDRP, you will note, "solves" these jurisdictional problems by (a) invoking the contractual "consent" of the registrant to resort to UDRP proceedings in case of a dispute with a trademark owner, and (b) limiting its remedial powers to the domain name databases themselves. Thus, if a UDRP arbitrator orders the transfer of "Mcdonalds.com" from Ms. McDonald to McDonalds, Inc., the .com Registry operator need only alter the relevant database entry to effectuate the judgment (and that Registry operator has already agreed, in its contract with ICANN, to do so).

2. No Unreasonable Interference or Unreasonable Disadvantage to Consumers or Edge Providers 20.

The key insight of the virtuous cycle is that broadband providers have both the incentive and the ability to act as gatekeepers standing between edge providers and consumers. As gatekeepers, they can block access altogether; they can target competitors, including competitors to their own video services; and they can extract unfair tolls. Such conduct would, as the Commission concluded in 2010, "reduce the rate of innovation at the edge and, in turn, the likely rate of improvements to network infrastructure." In other words, when a broadband provider acts as a gatekeeper, it actually chokes consumer demand for the very broadband product it can supply. 246

UDRP 4(k) Availability of Court Proceedings.

The mandatory administrative proceeding requirements set forth in Paragraph 4 shall not prevent either you or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded. If an Administrative Panel decides that your domain name registration should be canceled or transferred, we will wait ten (10) business days (as observed in the location of our principal office) after we are informed by the applicable Provider of the Administrative Panel's decision before implementing that decision. We will then implement the decision unless we have received from you during that ten (10) business day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that you have commenced a lawsuit against the complainant in a jurisdiction to which the complainant has submitted under Paragraph 3(b)(xiii) of the Rules of Procedure. * * * If we receive such documentation within the ten (10) business day period, we will not implement the Administrative Panel's decision, and we will take no further action, until we receive (i) evidence satisfactory to us of a resolution between the parties; (ii) evidence satisfactory to us that your153lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing your lawsuit or ordering that you do not have the right to continue to use your domain name.

Targeting or "Effects" Test:

The targeting approach looks at whether a ∆ deliberately targets individuals in any particular state i.e. whether a website has actually targeted a particular jurisdiction (Young).

Information content provider:

The term "information content provider" means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. * * *

Interactive computer service:

The term "interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions. Ex.: ISP, comcast YouTube is a provider because it ends up being the platform where other material is posted Google because it provides links to other information. It's enabling your access to other information

The final clause is known as the "telecommunications management" exception. The Act defines "telecommunications service" (as distinct from "telecommunications," see id. § 153(50)), as follows:

The term "telecommunications service" means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.

3.6, How does a registrant's use of a privacy or proxy service impact a panel's assessment of bad faith?

There are recognized legitimate uses of privacy and proxy registration services; the circumstances in which such services are used, including whether the respondent is operating a commercial and trademark-abusive website, can however impact a panel's assessment of bad faith.

What does the Streamlined Sales and Use Tax Agreement do?

This system standardizes taxes to reduce administrative and compliance costs: It requires a single, state level tax administration, uniform definitions of products and services, simplified tax rate structures, and other uniform rules. It also provides sellers access to sales tax administration software paid for by theState. Sellers who choose to use such software are immune from audit liability. (South Dakota v. Wayfair)

Even absent outright blocking, broadband providers could develop what would effectively be a "two-tiered" system in which preferred content and applications would be moved along the network at higher speeds.

Thus, broadband providers could extract fees from application or content providers in order to have their content transmitted at faster rates. In addition, broadband providers could offer their own content or applications at greater speeds than rival products. Thus, while stopping short of blocking an application outright, a broadband provider could decrease the available speed of an application so that the application could not effectively compete with other applications running at faster speeds. In this scenario, consumers would be left with the choice of using the broadband provider's own service, or selecting an inferior option.

2.1, SECOND UDRP ELEMENT 2.1 How do panels assess whether a respondent lacks rights or legitimate interests in a domain name?

To demonstrate rights or legitimate interests in a domain name, non-exclusive respondent defenses under UDRP paragraph 4(c) include the following: (i) before any notice of the dispute, the respondent'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 respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or (iii) the respondent 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.

1.3,What does a complainant need to show to successfully assert unregistered or common law trademark rights?

To establish unregistered or common law trademark rights for purposes of the UDRP, the complainant must show that its mark has become a distinctive identifier which consumers associate with the complainant's goods and/or services. Relevant evidence demonstrating such acquired distinctiveness (also referred to as secondary meaning) includes a range of factors such as (i) the duration and nature of use of the mark, (ii) the amount of sales under the mark, (iii) the nature and extent of advertising using the mark, (iv) the degree of actual public (e.g., consumer, industry, media) recognition, and (v) consumer surveys. (Particularly with regard to brands acquiring relatively rapid recognition due to a significant Internet presence, panels have also been considering factors such as the type and scope of market activities and the nature of the complainant's goods and/or services.) Specific evidence supporting assertions of acquired distinctiveness should be included in the complaint; conclusory allegations of unregistered or common law rights, even if undisputed in the particular UDRP case, would not normally suffice to show secondary meaning. In cases involving unregistered or common law marks that are comprised solely of descriptive terms which are not inherently distinctive, there is a greater onus on the complainant to present evidence of acquired distinctiveness/secondary meaning. As noted in section 1.1.2, for a number of reasons, including the global nature of the Internet and Domain Name System, the fact that secondary meaning may only exist in a particular geographical area or market niche does not preclude the complainant from establishing trademark rights (and as a result, standing) under the UDRP. Also noting the availability of trademark-like protection under certain national legal doctrines (e.g., unfair competition or passing-off) and considerations of parity, where acquired distinctiveness/secondary meaning is demonstrated in a particular UDRP case, unregistered rights have been found to support standing to proceed with a UDRP case including where the complainant is based in a civil law jurisdiction. The fact that a respondent is shown to have been targeting the complainant's mark (e.g., based on the manner in which the related website is used) may support the complainant's assertion that its mark has achieved significance as a source identifier. Even where a panel finds that a complainant has UDRP standing based on unregistered or common law trademark rights, the strength of the complainant's mark may be considered relevant in evaluating the second and third elements.

Search King asserts a single cause of action—tortious interference with contractual relations.

Under Oklahoma law, such an action requires a plaintiff to demonstrate: (1) the defendant interfered with a business or contractual relationship of the plaintiff; (2) the interference was malicious and wrongful, and was not justified, privileged, or excusable; and (3) the plaintiff suffered injury as a proximate result of the interference. T

b. False or misleading data security commitments

Under Section 5 of the FTC Act, the FTC has taken actions against businesses that represent that they will adequately secure data or keep the data confidential, while in fact engaging in actions that belie those representations (practices that are "deceptive"). When a company states that it will use "strong," "reasonable," or even "industry standard" information security standards and techniques to maintain the confidentiality and integrity of personal information, but then fails to implement such standards and techniques, the FTC has alleged violations of Section 5. The FTC succinctly described its approach to data security deception cases in congressional testimony: See Solove & Hartzog, The FTC and the New Common Law of Privacy. The companies that have been subject to enforcement actions have made explicit or implicit promises that they would take appropriate steps to protect sensitive information obtained from consumers. Their security measures, however, proved inadequate; their promises, therefore, deceptive.

1.1, 1.1.1, 1.1.2, 1.2.1,

What type of trademark rights are encompassed by the expression "trademark or service mark in which the complainant has rights" in UDRP paragraph 4(a)(i)? 1.1.1 The term "trademark or service mark" as used in UDRP paragraph 4(a)(i) encompasses both registered and unregistered (sometimes referred to as common law) marks. 1.1.2 Noting in particular the global nature of the Internet and Domain Name System, the jurisdiction(s) where the trademark is valid is not considered relevant to panel assessment under the first element.

Morrison and the PresumptionAgainst Extraterritoriality

When interpreting the laws of the United States, we presume that legislation of Congress ''is meant to apply only within the territorial jurisdiction of theUnited States,'' unless a contrary intent clearly appears. Morrison, 561 U.S. at 255,130 S.Ct. 2869.

2.8,How do panels assess claims of nominative (fair) use by resellers or distributors?

While the following section primarily concerns cases involving "bait and switch" or other related unfair trade practices, many of the principles outlined above, especially at section 2.5 with respect to fair use, underpin the following section. 2.8.1 Panels have recognized that resellers, distributors, or service providers using a domain name containing the complainant's trademark to undertake sales or repairs related to the complainant's goods or services may be making a bona fide offering of goods and services and thus have a legitimate interest in such domain name. Outlined in the "Oki Data test", the following cumulative requirements will be applied in the specific conditions of a UDRP case: (i) the respondent must actually be offering the goods or services at issue; (ii) the respondent must use the site to sell only the trademarked goods or services; (iii) the site must accurately and prominently disclose the registrant's relationship with the trademark holder; and (iv) the respondent must not try to "corner the market" in domain names that reflect the trademark.

The URS is designed for especially clear, essentially "slam-dunk" cases of bad faith second-level domain registration. The URS specifies that the complainant must show:

[1] that the registered domain name is identical or confusingly similar to a word mark: (i) for which the Complainant holds a valid national or regional registration and that is in current use; or (ii) that has been validated through court proceedings; or (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed. a. Use can be shown by demonstrating that evidence of use — which can be a declaration and one specimen of current use in commerce — was submitted to, and validated by, the Trademark Clearinghouse. b. Proof of use may also be submitted directly with the URS Complaint. and [2] that the Registrant has no legitimate right or interest to the domain name; and [3] that the domain was registered and is being used in bad faith. URS, 1.2.6.1-1.2.6.3. Note that the URS Procedure explicitly states that "[t]he burden of proof shall be clear and convincing evidence."

the FCC in 2002 concluded that cable broadband services

are "information services" and therefore exempt from both local franchising regulation and federal open access requirements. ·

Unlike typical "clickwrap" agreements, clicking "Place your order"

does not specifically manifest assent to the additional terms, for the purchaser is not specifically asked whether she agrees or to say "I agree." Cf. Register.com, 356 F.3d at 402-03, 429 & n.41. Nothing about the "Place your order" button alone suggests that additional terms apply, and the presentation of terms is not directly adjacent to the "Place your order" button so as to indicate that a user should construe clicking as acceptance. Cf. Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 835, 840 (S.D.N.Y. 2012) (finding Facebook user was "informed of the consequences of his assenting click" because he was shown, immediately below the "Sign Up" button, a notice stating, "By clicking Sign Up, you are indicating that you have read and agree to the Terms and Service")

The SCA provides privacy protection for users of two types of electronic services—

electronic communication services (''ECS'') and re-mote computing services (''RCS'')

ECS

generally operated by providing the user access to a central computer system through which to send electronic messages over telephone lines. If the intended recipient also sub-scribed to the service, the provider temporarily stored the message in the recipient's electronic ''mail box'' until the recipient''call[ed] the company to retrieve its mail.'' If the intended recipient was not a subscriber, the service provider could print the communication on paper and complete delivery by postal service or courier.

DMCA (d) Information Location Tools.—A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link, if the service provider

google- creating immunity for them if linking bad material (1)(A) does not have actual knowledge that the material or activity is infringing; (B) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material; (2) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and (3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, except that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shall be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link. * * *

· CFAA: The CFAA creates criminal and civil liability for

intentionally accessing a protected computer to obtain information "without authorization" or for "exceed [ing] authorized access." Similarly, liability exists for taking, copying, or making use of data from a computer "without permission." Thus, determining whether access was "authorized" is central to imposing liability under both statutes. ·

A ''datacenter''

is ''[a] centralized locationwhere computing resources (e.g. host com-puters, servers, peripherals, applications, da-tabases, and network access) critical to anorganization are maintained in a highly conrolled physical environment (temperature,humidity, etc.).'' Newton's Telecom Dictionaryat 373.

"where access is open to the general public, the CFAA 'without authorization' concept

is inapplicable." [T]he wording of the statute, forbidding 'access[]... without authorization,'....suggests a baseline in which access is not generally available and so permission is ordinarily required." (Id.) "'[A]n authentication requirement, such as a password gate, is needed to create the necessary barrier that divides open spaces from closed spaces on the Web."' The court also found that other language in the statute bolsters "the idea that authorization is only required for password-protected sites or sites that otherwise prevent the general public from viewing the information." (hiQ Labs at 1001.)

you're not going to be treated as a creator under CDA If you are

just providing access if you're just distributing the material. If putting it on your platform.

In Christies, the Ninth Circuit invalidated a California law that

mandated royalty payments on fine art sales made by legal California residents, regardless of the physical location of the seller and buyer, and regardless of where the transaction took place - "facially regulat[ing] a commercial transaction that takes place wholly outside of the State's borders."

The term "information service"

means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications * * * but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.

· In the Matter of Protecting and Promoting the Open Internet

o Commission and governed by the APA and receive evidence and give notice. o Allegation that fraudulent · Today, broadband providers are offering stand-alone transmission capacity and that conclusion is not changed even if, as Justice Scalia recognized, other products may be offered at the same time · Today, broadband Internet access service is fundamentally understood by customers as a transmission platform through which consumers can access third-party content, applications, and services of their choosing. o If storing info then classified a different way o Pizza example: · On June 14, 2016, the Court of Appeals for the D.C. Circuit upheld the FCC Order. See United States Telecom Assoc. v. FCC, No. 15-1063 (D.C. Cir. 2016). This reclassification held to have a sig factual basis. · Affirmed the switch to net neutrality rules. · Kavanaugh dissented from classification ( FCC net neutrality rule is one of most consequential agency decisions. The rule changes the internet by imposing common carrier obligations on internet service providers from exercising editorial control over the content they transmit to consumers. The rule will affect every internet service provider every internet content provider and every internet consumer. · Kavanaugh argues major rules doctrine: If a big deal then outside scope of chevron deference. "we expect congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance." · When net neutrality rules affirmed only a panel decision w/ dissent by guy who is a sitting supreme court justice. · The nominated barrett is in mold of scalia

· Net Neutrality History

o Common carrier: originated in England where private companies delivered/transported packages and they didn't have different rates for different things. Rule developed to where don't look inside the package. o Immunities - no duty to investigate the contents of what carry so don't have ability to prevent the injury or damage that could occur in route. o Non- discriminatory o Fundamental unit of the internet is the packet § Standardized procedure of how to prepare a packet - in the same way common carrier didn't look at package on train in non-discriminatory fashion then common carrier of internet don't look inside the packet. § AT&T is regulated as a common carrier and the non-discriminatory rules are applied to AT&T and cant discriminate based on geography/social class o 90s- Clinton administration law created that took hands off regulation of the internet § Title 2- treatment of telephone companies as common carriers but created exception for information services. § Title 1- does not apply to websites;

Specht v. Netscape Communications Corp., Issue: whether "an offer of a license agreement, made independently of freely offered software and not expressly accepted by a user of that software, nevertheless binds the user to an arbitration clause contain[ed] in the license."

o Held: the browse-wrap agreement was unenforceable and not bound to arbitration clause. π's bare act of downloading the software did not unambiguously manifest assent to the arbitration provision contained in the license terms.

· Nicosia v. Amazon o F- Nicosia is an Amazon customer. On both January 30 and April 19, 2013, he used the Amazon website to purchase 1 Day Diet (One Day Diet) Best Slimming Capsule 60 Pills ("1 Day Diet"), a weight loss drug containing sibutramine. Class action suit. Amazon wants stay suit pending arbitration. Summary jmt- "

o I- whether assent to the arbitration clause -whether consumer was on notice of and agreed to conditions of use, which contained requirement to arbitrate all disputes, linked to online retailer's order page, could not be resolved at motion to dismiss phase of consumer's action against retailer for violation of Consumer Product Safety Act because of factual dispute as to whether order page contained notice of the conditions of use sufficient to contractually bind consumer to the terms contained in the conditions of use o Held: reasonable minds could disagree on the reasonableness of notice. Amazon has failed to show that Nicosia was on notice and agreed to mandatory arbitration as a matter of law. o Sufficiency of consent is a question of fact; whether sufficient assent · Nicosia did not establish a likelihood of future or continuing harm. Even a assuming his past purchases of 1 Day Die et resulted in injury and that he may continue to suffer consequences a as a result, he has not shown that he is likely to be subjected to further sales by Amazon of products containing sibutramine. Amazon has ceased selling. 1 D Day Diet on its website, and Nicosia has failed to allege that he intends to use Amazon in the future to buy any products, let alone food or drug products generally or weight loss products in particular ·

· Mozilla Corporation, Petitionerv. Federal Communications Commission And Unitedstates Of America, ·

o Issue: · information service definition—'generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications,'" o can be both a telecom and information service provider= integrated. o This is definition presumes deliver pizzas b/c at end it says "via telecommunications" · At Chevron Step One, we ask "whether Congress has directly spoken to the precise question at issue." · Applying these principles here, we hold that classifying broadband Internet access as an "information service" based on the functionalities of DNS and caching is "'a reasonable policy choice for the [Commission] to make' at Chevron's second step." Brand X, 545 U.S. at 997 · Brand X held that, by virtue of the ambiguity of the word "offering," the FCC could permissibly choose not to classify cable modem service as a "telecommunications service." Brand X, · ISP are information services and not treated as common carriers. · The FCC classifies them as information services by · Information services cach all the time and that is storing. And caching and storing is essential. · the ISP process the info when figure out where going to go and route it. So both storing and processing it so both information services providers. That classification is entitled to chevron deference.

22. This "no unreasonable interference/disadvantage" standard protects free expression, thus fulfilling the congressional policy that "the Internet

offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity." And the standard will permit considerations of asserted benefits of innovation as well as threatened harm to end users and edge providers.

The dormant commerce clause's central prohibition is

on protectionist state legislation that discriminates against out-of-staters.

Government intervention in traditional infrastructure markets to impose commons management is generally constrained to * * * two types of interventions,

one focused on nondiscriminatory access for competitors and one focused on nondiscriminatory service to consumers. * * *

3.2.2, "Knew or should have known"

panels have been prepared to infer that the respondent knew, or have found that the respondent should have known, that its registration would be identical or confusingly similar to a complainant's mark. On the other hand, where the complainant's mark is not inherently distinctive and it also corresponds to a dictionary term or is otherwise inherently attractive as a domain name (e.g., it is a short combination of letters), if a respondent can credibly show that the complainant's mark has a limited reputation and is not known or accessible in the respondent's location, panels may be reluctant to infer that a respondent knew or should have known that its registration would be identical or confusingly similar to the complainant's mark.

Search King alleges Google

purposefully and maliciously decreased the PageRanks previously assigned to Search King, PRAN, and certain unidentified, affiliated web sites on Google's Internet search engine in August or September of 2002. Search King asserts the devaluation occurred after and because Google learned that PRAN was competing with Google and that it was profiting by selling advertising space on web sites ranked highly by Google's PageRank system. Google asserts it is immune from tort liability arising out of the devaluation because PageRanks constitute protected speech.

. Assent to the Terms of a "Browse-Wrap" Agreement. · Specht v. Netscape Communications Corp., 306 F.3d 17 (2nd Cir. 2002): Facts:

several πs downloaded the corporate ∆'s free software program from its Web site. On the page that allowed a user to download the software, the only reference made to a license agreement with regard to the software appeared as a link that was "visible only if a visitor scrolls down through the page to the next screen." Thus, users could download the software before even seeing the link to the license agreement and were not required to assent to the terms of the license agreement before they could download the free software. If a user clicked on the link to read the license, it took the user to a page that contained a list of license agreements and a paragraph stating that users must read and agree to the license terms before installing any software. The paragraph instructed users to "click on the appropriate link ... to review the current license agreement for the product of interest ... before acquisition." A user had to then click on another link to read the full license agreement regarding the particular free software. The license agreement governing the free software stated that, by either assenting to the license terms or downloading the software, the user was bound by the terms of the license. Arbitration Clause: One provision of this license stated that all disputes involving the software were to be submitted to binding arbitration in Santa Clara County, California. Subsequently, the πs filed a class action alleging that use of the free software transmitted private information about the users' "file transfer activity on the Internet" to the defendants in violation of the Electronic Communications Privacy Act and the Computer Fraud and Abuse Act. The ∆s moved to compel arbitration based on the license agreement.

First, in Facebook, Inc. v. Power Ventures, Inc., the Ninth Circuit held

that "a defendant can run afoul of the CFAA when he or she has no permission to access a computer or when such permission has been revoked explicitly." 844 F.3d 1058, 1067 (9th Cir. 2016) (emphasis added). In Power Ventures, the defendant operated a site that extracted and aggregated users' social networking information from Facebook and other sites on a single page. The defendant gained access to password-protected Facebook member profiles when its users supplied their Facebook login credentials. When users selected certain options on the defendant's site, the defendant, in many instances, "caused a message to be transmitted to the user's friends within the Facebook system." Id. at 1063. Facebook had sent a cease and desist letter demanding that Power Ventures cease accessing information on users' pages. The Ninth Circuit found a CFAA violation where "after receiving written notification from Facebook" Power Ventures"circumvented IP barriers" and continued to access Facebook servers. Id. at 1068. In short, Power Ventures accessed Facebook computers "without authorization."

Young court concluded

the "overall content of [the newspapers'] websites is decidedly local" and appeared to serve only local Connecticut markets, " neither newspaper's website contains advertisements aimed at a Virginia audience." Likewise, the focal point of the articles was Connecticut and discussed whether the Virginia prison policy was good for Connecticut.

End-to-end design is implemented in the logical infrastructure of the Internet through

the Internet Protocol, which provides a general, technology- and application-independent interface to the lower layers of the network. As a consequence of this design, the network [i]s application-blind; this prevent[s] infrastructure providers from distinguishing between the applications and content running over the network and from affecting their execution.

"end-to-end" principle,

the idea that the infrastructure of the network remains separate from the content it carries, and all data are treated equally by the carriers that transmit them.

As users moved from reliance on the "narrowband" technology of the dial-up modem to these "broadband" technologies, questions about

the relationship between the owners of facilities used to transmit communications and the providers seeking access to those facilities have resurfaced.

Under Morrison, we first determine whether

the relevant statutory provisions contemplate extraterritorial application. If we conclude that they do not, by identifying the statute's focus and looking at the facts presented through that prism, we then assess whether the challenged application is ''extraterritorial'' and therefore outside the statutory bounds.

To show proof of registration in bad faith

the respondent needs knowledge or some basis for believing that R knew about the complainants rights. Generally, that the rights arose before R's domain name was registered.

The requirement that a state tax on interstate commerce must apply to an activity with a substantial nexus with the taxing State is established when

the taxpayer or collector avails itself of the substantial privilege of carrying on business in that jurisdiction. South Dakota Wayfair

If telecom®

then common carrier that don't look inside packets and therefore; duty of nondiscrimination

If classified as information service ® ·

then not common carrier and then issue arises of what is the regulatory authority?

If the domestic contacts presented by the case fall within the ''focus'' of the statutory provision or are ''the objects of the statute's solicitude,''

then the application of the provision is not unlawfully extraterritorial. Morrison, 561 U.S. at 267,130 S.Ct. 2869.

Although subsection 512(d) (covering providers offering information location tools) does not contain a provision requiring designation of an agent to receive notifications, it refers back to the so-called "notice-and-takedown" regime of subsection 512(c). Courts have thus interpreted subsection 512(d)

to apply the same rules to providers as 512(c) does. If the service provider complies with all of these requirements, it is exempt from any liability to the subscriber based on removal of the material. On the other hand, a provider can ignore these procedures and take its chances in court defending a claim for contributory copyright infringement.

the law of warrants has long contemplated that a private party may be required

to participate in the lawful search or seizure of items belonging to the target of an investigation. When the government compels a private party to assist it in conducting a search or seizure, the private party becomes an agent of the government, and the Fourth Amendment's warrant clause applies in full force to the private party's actions.

The URS process is very fast. The URS provider (such as the National Arbitration Forum) must review the complaint within

two business days from the filing of the complaint. If the complaint complies with all filing requirements, the URS provider notifies the relevant registry operator, who must "lock" the targeted domain within 24 hours (lockin g a domain in this context merely means that the registrant cannot make any changes to registration data; the domain still resolves to a website). Within 24 hours of locking the domain, the registry operator must notify the registrant of the complaint. The registrant then has 14 days to file a response of no more than 2,500 words. If the registrant defaults on that 14 day period, the registrant still has six months from the date of a Notice of Default to reopen proceedings de novo. The remedy available to the successful complainant is suspension of the domain name and resolution of the domain to an informational page stating that the domain name has been suspended after a URS proceeding. Unlike the UDRP, the successful complainant cannot win transfer of the domain.

As a privacy regulator, the FTC has mainly relied upon its primary legal authority under Section 5 of the FTC Act, which prohibits

unfair or deceptive acts or practices in or affecting commerce. 2 This independent agency has used its general authority to regulate the collection, use, sharing, and security of personal information of U.S. consumers and, in certain instances, employees, and for the benefit of European data subjects whose personal information has been transferred to the U.S. via legitimate mechanisms, previously through the U.S.EU Safe Harbor Framework, and now via the EUU.S. Privacy Shield Framework.

[S]everal courts have held that only Congress can regulate the internet, since the internet requires

uniform, national regulations.

The "state action" doctrine requires a court to ask

when the conduct of a private party is fairly attributable to the government for constitutional purposes. o (1) courts often look to whether the private party is performing a "public function"—that is, whether the private party is sufficiently state-like to be treated as the state for purposes of applying constitutional guarantees. o (2) courts examine the points of contact between the government and the private party to assess whether there is a sufficient nexus between the two to justify imposing constitutional restraints on the private actor—as, for example, where the government jointly participates in or compels the private party's conduct.

The central issue posed in the debate over network neutrality is

whether government regulation should disable the ability of network providers to discriminate among uses or users and thereby directly or indirectly control what people do online.

Issue in Young

whether the newspapers manifested an intent to direct their website content / whether targeted—which included certain articles discussing conditions in a Virginia prison—to a Virginia audience?

a publishers is someone

who creates content. If you're the publisher of The Wall Street Journal, then you are liable for For at least a newspaper in paper. The paper world for the for the content that you create and and if you publish defamation that you can be liable for it.

AdWords work, Google AdWords system works.,

you know, you can bid for it. There's an auction site where you know you If you want if, if, in response to a, you know, you put in the search term that you're interested in, let's say, cameras or or best cameras or something like that.And if you're a camera vendor and you want to be ranked first you bid for the position one penny every search or if you're the highest bidder than your rank the highest so So that's already that that's already going on. And that's simply you know whether who's paying the anti, you know, is it anti competitive to allow people to bid for prominence. Probably not. But now if you add in. Well, what of Google wants to join in the bidding.Can it use own Money to to pay for the highest rank. Is it's right to do so changed by virtue of its market power and its own its own system. The fact that it allows third parties to bid to be the top complicates the question of whether it can bid itself to be the top

Browsewrap vs. Clickwrap:

§ Browsewrap: Π argues "[t]here is no proof that [he] agreed to a forum selection clause" ∆ responds "a putative Facebook user cannot become an actual Facebook user unless and until they have clicked through the registration page where they acknowledge they have read and agreed to Facebook's terms of use... ." § [T]he terms of Use were not exactly a true browsewrap license "in which the user does not see the contract at all but in which the license terms provide that using a Web site constitutes agreement to a contract whether the user knows it or not." Indeed, in a pure-form browsewrap agreement, "the website will contain a notice that—by merely using the services of, obtaining information from, or initiating applications within the website—the user is agreeing to and is bound by the site's terms of service." United States v. Drew, 259 F.R.D. 449, 462 n. 22 (C.D.Cal.2009); see also Southwest Airlines Co. v. BoardFirst, L.L.C., 2007 WL 4823761, *4 (N.D. Tex. 2007) ("Browsewraps may take various forms but typically they involve a situation where a notice on a website conditions use of the site upon compliance with certain terms or conditions, which may be included on the same page as the notice or accessible via a hyperlink."). A browsewrap agreement usually involves a disclaimer that by visiting the website—something that the user has already done—the user agrees to the Terms of Use not listed on the site itself but available only by clicking a hyperlink. · Here, by contrast, the second Sign-Up page indicated that additional action beyond merely visiting that page, namely, clicking "Sign-Up," would manifest agreement to the Terms of Use Facebook's Terms of Use are somewhat like a browsewrap agreement in that the terms are only visible via a hyperlink.

o When say net neutrality what are the rules implemented under a net neutrality regime?

§ Cannot do these things: (1) no blocking; (2)no throttling; (3) Ex.:comcast was slowing down bittorrent which was held to be a violation of the rule; (4) no paid prioritization;

Browsewrap vs. Clickwrap:

§ Clickwrap: "in which an online user clicks 'I agree' to standard form terms Cf. Drew, 259 F.R.D. at 462 n. 22 ("Clickwrap agreements require a user to affirmatively click a box on the website acknowledging awareness of and agreement to the terms of service before he or she is allowed to proceed with further utilization of the website."). A clickwrap agreement "presents the potential licensee (i.e., the end-user) with a message on his or her computer screen, requiring that the user manifest his or her assent to the terms of the license agreement by clicking on an icon." Register.com, 356 F.3d at 429. In assenting to a clickwrap agreement, "users typically click an 'I agree' box after being presented with a list of terms and conditions of use ..." Hines, 668 F.Supp.2d at 366 (emphasis added). That aspect of a clickwrap agreement ensures that "potential licensees are presented with the proposed license terms and forced to expressly and unambiguously manifest either assent or rejection prior to being given access to the product." Register.com, 356 F.3d at 429. · Here, the terms of were not a pure clickwrap agreement either: While the Terms of Use require the user to click on "Sign Up" to assent, they do not contain any mechanism that forces the user to actually examine the terms before assenting. FB terms of use are somewhat like a clickwrap agreement in that the user must do something else—click "Sign Up"—to assent to the hyperlinked terms. Yet, unlike some clickwrap agreements, the user can click to assent whether or not the user has been presented with the terms. o Cases where ct not that strict about some of these terms. There were no records from FB.