Internet Law
Define major rules doctrine
"For an agency to issue a major rule, Congress must clearly authorize the agency to do so. If a statute only ambiguously supplies authority for the major rule, the rule is unlawful." - Kavanaugh in FCC Decision Grounded in two assumptions: (1) separation of powers leans against the delegation of major law-making authority by Congress to the executive branch and (2) presumption that Congress intends to make major policy decisions itself.
Define Chevron deference
"If the statute is clear, the agency must follow the statute. But if the statute is ambiguous, the agency has discretion to adopt its own preferred interpretation, so long as that interpretation is at least reasonable." - Kavanaugh in FCC decision
What are the two big themes of the last 50 years of state action doctrine before SCOTUS?
(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 (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 the constitutional restraints on the private actor - as for example where the government jointly participates in or compels the private party's conduct
What are the two types of interventions by government in traditional infrastructure markets to impose commons management?
(1) Government may require an infrastructure owner to provide nondiscriminatory access to a potential competitor (2) Government may require an infrastructure owner to provide nondiscriminatory access to all customers - Brett M. Frischmann, "Infrastructure: The Social Value of Shared Resources"
Three basic rules of net neutrality
(1) No throttling (degrading the internet connection in some way) (2) No blocking (denying access to certain websites) (3) No paid prioritization (fast lanes! --> this kind of gets to the physical infrastructure of the internet)
What assumptions underlie the FCC's decision to initially classify broadband internet as information services?
(1) The FCC assumed it retained broad power to regulate under its Title One ancillary jurisdiction (2) The FCC assumed, since no particular classification decision is compelled by the statutory text, the FCC could reclassify broadband services.
What are the two broadest strategies for regulating through intermediaries?
(1) by targeting the intermediaries themselves or (2) by providing intermediaries with incentives to curtail the behavior of their users
What are options for classifying cable modem service under the Federal communications act?
(1) telecommunications service - 47 USC 153(46) - would be subject to federal common carrier reqs (2) an information service - 47 USC 153(20) - any local open access reqs are precluded, fed open access reqs not re'd by the Comms Act and can likely only be imposed by the FCC (3) a cable service - 47 USC 522(6)
Criticism of Zippo Scale
(1) unclear how to draw line between passive and interactive site (enough to solicit email for newsletter? easy to weasel out of interactivity) (2) what does it mean to examine the "level of interactivity and commercial nature of the exchange of info" from middle ground? (I.e. sells ads based on hits sites receive or collects/markets user data) (3) why is the degree to which a website is interactive relevant to the question of jurisdiction? (3b or maybe 4) no basis for PJ unless nexus exists between the website and the cause of action OR if contacts were substantial enough to be "systematic and continuous" - so rigid adherence to Zippo could create wrong results
Obscene speech standards from Miller v. California
(1) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Anti-net neutrality arguments (4)
- no privacy invasion by government - free market will regulate content and make it cheaper for consumers - attract investment - not all data is actually equal: regulations from net neutrality may prevent rural consumers from accessing some internet at the expense of not giving them exactly the same internet as urban consumers
Pro-net neutrality arguments (5)
- protects the uninformed consumer - internet is too valuable for people to have disparate access to it - freedom of expression protected from provider oversight - prevents stifling - prevents monopolies from developing / big companies disadvantaging small companies before they get a chance to get a foothold in the market
Holding in Marsh v. Alabama? (Hint: constitutional norms applied to private entities)
1946 - SCOTUS held that under some circumstances, property that is privately owner may, at least for First Amendment purposes, be treated as thought were publicly held. Town was owned by one company, but because it was literally the whole town, the town had to abide by First Amendment norms. Holding extended in 1968 to a shopping mall - Amalgamated Food Employees Union v. Logan Valley Plaza - but then Logan Valley was overruled in 1976 (Hudgens v. NLRB) so limits of this unclear
Case summary: Ira Bushey & Sons
1968 - old, pre-internet precedent for vicarious liability for intermediaries. drunk sailor comes home and opens the dry dock wheels on the wall and lets in the water - owner of dry dock sues the Navy on vicarious liability. Court says it is reasonably foreseeable in the scope of employ that sailors might come home drunk and be rowdy. "a more efficient allocation [of liability] can only be expected if there is some reason to believe that imposing a particular cost on the enterprise will lead it to consider whether steps should be taken to prevent a recurrence of the accident." "the proclivity of seamen to find solace for solitude by copious resort to the bottle while ashore has been noted in opinions too numerous to warrant citation."
Digital Millennium Copyright Act (DMCA)
1988 amendment to federal copyright laws that includes use of computer technology to copy music and other copyrighted materials as infringement. Section 512 doesn't immunize service providers but does limit exposure by precluding liability and some forms of injunctive relief. Sets up safe harbors: most important are transmitters (512(a)) and stage (512(c)). "Transmitters are immune unless they have knowledge." How to create knowledge? Send notice to DMCA Agent with precise location, description and swear it's an infringement. Rebut notice: 10 days to send counter-notice (incl consent of jurisdiction of party which gave notice, or to location fo service); host puts content back up, says not its fight; initiating litigation. Service provider here is narrowly defined - only "an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material sent or received." (Section 512(k)(1)(A)).
Case summary: Cubby v. Compuserve
1991 - Fundamental distinction here: publishers has control (like a newspaper) and a distributor is exactly that and does not (like a newsstand) - old concept but applying it to the internet. BUT distributors can be liable if they knew or should have known, and that is the standard here. SJ granted for CompuServe because neither knew nor had reason to know of contents of problematic publication. "while CompuServe may declines o carry a given publication altogether, in reality, once it does decide to carry a publication, it will have little or no editorial control over that publication's contents...especially so when CompuServe carries the publication as part of a forum that is managed by a company unrelated to CompuServe." COMPARE TO OPPOSITE OUTCOME IN Stratton Oakmont, Inc. v. Prodigy Services Co.
Case summary: Stratton Oakmont, Inc. v. Prodigy Service Co.
1995 - Different outcome than in Cubby v CompuServe because Prodigy actually has control here: software screening program (scans for offensive language) and board leaders, who have the power to delay posts/emergency delete function, and content guidelines, which asks users to not post insulting content and claims they will be removed once put up. Court holds Prodigy is a publisher because (1) holds itself out as one and (2) implements control with above functions. Negative reaction to holding from Congress creates the Communications Decency Act, which stops the binary choice between touching no messages for fear of accepting liability or screening EVERY MESSAGE even when there's an enormous volume!
Case summary: Religious Technology Center v. Netcom On-Line Communication Services
1995 - issue is whether the operator of a computer bulletin board service ("BBS") and internet access provider have liability for copyright infringement? Holding: Netcom not liable; didn't want to changing the internet. Not liable as direct infringers. Storage on a defendant's system of infringing copies and retransmission to other servers is not a direct infringement by the bulletin board service operator of the exclusive right to reproduce the work where such copies are uploaded by an infringing user. Where the infringing subscriber is clearly directly liable for the same act, it does not make sense to adopt a rule that could lead to the liability of countless parties whose role in the infringement is nothing more than setting up and operating a system that is necessary for the functioning of the Internet... The court does not find workable a theory of infringement that would hold the entire Internet liable for activities that cannot reasonably be deterred. Infringers: 1) contributory - requires knowledge; making copies and distributing them around internet - is inducement. 2) vicarious - does not require knowledge - money, control - ex. % of revenue from infringing
Case summary: ProCD v. Zeidenberg
1996 - case before 7th circuit (UChicago School), issue whether buyers of computer software are bound by terms of shrinkwrap licenses? answer is yes unless the terms are objectionable in general - opinion by Easterbrook, Nodine loves him Federal preemption - section 301(a) of the Copyright Act prevents states from granting/denying equivalent rights to those available under copyright law BIG CASE - punchline is that the terms of use are generally enforceable! like a regular contract
Zippo scale for personal jurisdiction
1997 "active" to "passive" * Active: if the D enters into contracts with residents of a foreign jurisdiction that involve the knowing/repeated transmission of computer filed over the internet - PJ is proper Middleground: interactive websites where a user can exchange info with the host computer - PJ determined by looking at level of interactivity and commercial nature of the exchange of info Passive: little more than make info available to those who are interested in it - no PJ
Case summary: Zeran v. America Online Inc.
1997 - post Oklahoma City Bombing, tasteless t-shirts with the ex-boyfriend's phone number on it, court holds that notice alone cannot create distributor liability Largely same point made in Blumenthal v. Drudge
Case summary: Blumenthal v. Drudge
1998 - largely same point as Zeran v. AOL.
Case summary: La Ligue Contre le Racisme et l'Antisémitisme v. Yahoo (FR)
2000 - student org sues Yahoo for hosting auctions of Nazi paraphernalia in Superior Court in France - Court orders Yahoo to prevent access through its website to the auction service for Nazi items or any related sites. Issues here are: intermediary liability (if websites are subject to laws of all jurisdictions from which they can be accessed, will most restrictive legal norms prevail?) and jurisdiction (are websites present where they can be accessed or where their servers are or some other place?)
Case summary: ACLU v. Reno
2000 - vacated by Ashcroft v. ACLU - issue was whether Congress had stayed within the boundaries of the constitution without curtailing the protected free speech rights of adults in passing the Child Online Protection Act (COPA), Court says likely unconstitutional because COPA relies on "contemporary community standards" from Miller which would force web publishers to comply with standards of most restrictive community because "publishers cannot restrict access to their site based on the geographic locale of the internet user visiting their site."
Case summary: Yahoo v. La Ligue Contre le Racisme et l'Antisemitisme (US)
2001 - Court ultimately declined to enforce the French order but didn't rule that the French court had acted without jurisdiction - Ultimately decides that the principle of comity is outweighed by the Court's obligation to uphold the First Amendment Eventually reversed by the 9th circuit but we didn't read it or discuss it.
Case summary: Specht v. Netscape Communications Corporation
2002 - Issue: whether plaintiffs, by acting upon defendant's invitation to download free software made available on defendant's webpage, agreed to be found by the software's license terms. Court held that P's bare act of downloading the software did not unambiguously manifest assent to the arbitration provision contained in the license terms. Knew or should known standard - was your access to it sufficient that the law can act as if you read it? Reasonably prudent person formula - which is not met. "in circumstances such as these, where consumers are urged to download free software at the immediate click of a button, a reference to the existence of license terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms."
Case summary: Young v. New Haven Advocate
2002 - VA prison warden vs. Connecticut papers, 4th Circuit says no PJ over Connecticut papers in Virginia, because not intentionally aimed at so insufficient contacts - court specifically says jurisdiction applies where the person (1) "direct 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"
Case summary: Ashcroft v. ACLU
2002 - vacates ACLU v. Reno - issue is whether the technological limitation of web publishers, who are "currently without the ability to control the geographic scope of the recipients of their communications", renders COPA's reliance on community standards constitutionally infirm - holds that COPA's reliance on community standards to identify "'material that is harmful to minors' does not by itself render the statute substantially over broad for purposes of the 1st Amendment."
Case summary: Search King v. Google Technology
2003 - alleges that Google maliciously punished Search King, tortious interference with contract which turns on whether Google acted maliciously Court finds that Google's page-ranks are actually free speech and are thus constitutionally protected because they relate to matters of public concern and do not contain provably false connotations (effectively - a page rank is an opinion). If you want a free speech limitation on Google, that won't work. Not a state actor. But the other hand, traditional anti-trust principles won't work.
Case summary: Register.Com v. Verio
2004 - Verio sent unsolicited ads to the new WHOIS people through Register.com. 2nd Circuit affirmed decision to enjoin Verio from accessing Register's computers by use of automated software programs performing multiple successive queries and using data obtained from Register's database of contact info of registrants of internet domain names to solicit the registrants for the sale of web site development services by e-mail, telephone cals, or direct mail. Verio additionally tried to enforce restrictions on Register by ICANN and court told it to butt out.
Case summary: Doe No. 1 v. Cahill
2005 - issue is under what circumstances are you going to demand the ISP reveal the real name of the user - court holds that the defamation plaintiff must satisfy a "summary judgment" standard before obtaining the identity of an anonymous defendant. Idea is fear that revealing before that would allow the plaintiff, even if they lose the case, to seek revenge or retribution ("extra-judicial self-help remedies") This is the Supreme Ct of Delaware court deliberately ratcheting up the standard (lower court had used "good faith" standard) Cited Dendrite - NJ case - but doesn't fully adopt it (thought 2nd and 4th reqs were unnecessary)
Case summary: National federation of the blind v. Target Corp
2006 - NFBC claims Target.Com being inaccessible to the blind prohibits anti-discrimination laws including state-level laws which Target claims would violate the dormant commerce clause because reserved exclusively for congress & would regulate conduct occurring wholly outside of California. Court says will not accept Target's 12(b)(6) motion because: (1) too much to assume that Target would retool its national site rather than just geo-target California users with an accessible site and (2) possible Congressional inaction is encouraging states to fill the gaps.
Case summary: Bragg v. Linden Research
2007 - Court denied motion to compel arbitration because it was procedurally and substantively unconscionable after an account on Linden Research's Second Life was cancelled unilaterally (as allowed by the TOS) but doing so denied Bragg his right to his virtual land and currency (born of real money spent).
Case summary: Fair Housing Council of San Fernando Valley v. Roommates.com, LLC
2008 - 9th Circuit held that immunity under Section 230 of the Communications Decency Act (CDA) did not apply to an interactive online operator whose questionnaire violated the Fair Housing Act. However, the court found that Roommates.com was immune under Section 230 of the CDA for the "additional comments" portion of the website. Roommate is also an information content provider by helping "develop" at least "in part" the information in the user profiles which violates the Fair Housing Act (users are the other part of the ICP here) and by having a search function that allows filtering by these illegal criteria Has a whole paragraph on "development" under the CDA: What is:website operator who edits in a manner that contributes to the alleged illegality (removing the word "not" from a user's message to turn it from innocent to libelous) What isn't: search engine in white roommate search query in a regular search engine; neutral tools in providing neutral tools to carry out unlawful/illicit searches; dating website that requires sex/race/religion/singledom in dropdown menus; a website operator who edits user-created content retains immunity for illegality in the user-created content
Case summary: Chicago Lawyers' Committee for Civil Rights Under the Law v. Craigslist
2008 - Craigslist, the online classified advertising site, was sued by the Chicago Lawers' Committee for Civil Rights Under Law, Inc., for hosting users' discriminatory housing postings. Unlike the decision in Roommates.com, Craigslist was immune from liability for users' discriminatory housing postings because "[n]othing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination." The court rejected the claims that Craigslist caused the discriminatory posting just by hosting an interactive web forum. It also rejected the argument that discriminatory housing advertisements were an exception to CDA § 230.
Case summary: Louis Vuitton Malletier SA v eBay Inc. (FR)
2008 - Holding: eBay was receiving notice and not taking down. eBay is definitely involved in promoting infringement, this higher level of involvement creates/manifests your Duty to take illegal posts down. Calls total BS on eBay - "try harder." p. 390 - "eBay fostered and amplified... eBay defaulted on its duty to prevent injury." BUT this is a very European ideal, not in the US at all.
Case summary: uBid v. The GoDaddy Group (USDC)
2009 - overturned by 7th circuit - no PJ! because no nexus between the cause of action and the minimum contacts identified in the state
Case summary: uBid v. The GoDaddy Group (7th Circuit)
2010 - allegations that GoDaddy violates anti-cybersquatting consumer protection act by registering domain names that are intentionally, confusingly similar to uBids's trademarks and domain names and exploiting subsequent consumer confusion - court holds that it's fine for defendant to be "called to account for the alleged consequences of its deliberate exploitation of the market in the forum state" when national marketing campaign has touched Illinois and GoDaddy has customers in Illinois
Case summary: Tiffany Inc. v. eBay, Inc.
2010 - eBay had Tiffany products that were counterfeit on their site, and adopted a notice-and-takedown approach. Tiffany complained to eBay about the fakes, relies heavily on Inwood (expansion of liability to service providers). Willful blindness is not permitted and can create liability - but does not exist here. "When it has reason to suspect that users of its service are infringing a protected. mark, it may not shield itself from learning of the particular infringing transactions by looking the other way." Holding: for contributory trademark infringement liability to lie, a service provider must have more than a general knowledge or reason to know that its service is being used to sell counterfeit goods. Some contemporary knowledge of which particular listings are infringing or will infringe in the future is necessary.
Hancock v. American Telephone & Telegraph Co.
2012 - P asserts they didn't knowingly accept the TV/Voice and Internet terms and thus the arbitration/forum-selection clause is unenforceable. Court held that they were enforceable because they were common, not buried, and very much agreed to by the customer. A clickwrap agreement is enforceable if it gives consumers adequate notice of the terms and an adequate opportunity to read and accept them. one of the most common terms is to not decompile or reverse engineer the software - the step of decompiling to extract from within something the unprotected parts is itself infringing
Case summary: Fteja v. Facebook
2012 - SDNY granted a 12(b)(6) motion regarding whether a P agreed to Facebook's half-clickwrap half-browsewrap because Facebook claimed and provided proof that there was no way to become a Facebook user without agreeing to it and the fact that the user hadn't read the agreement didn't mean they weren't bound by it.
Google Spain, SL & Google, Inc. v. Agencia Espanola de Protección de Datos (AEPD)
2014 - right to be forgotten upheld "It is clear that [the indexing and searching of links containing personal data] cannot be justified by merely the economic interest which the operator of such an engine has in that processing."
What did the "In the Matter of Protecting and Promoting the Open Internet" Order do?
2015 - "created net neutrality" - created rules against blocking, throttling, and paid prioritization, enhanced transparency rule, establishes retail broadband internet access services is a telecommunications service, and puts in place a "light touch" Title II regulatory framework
Case summary: Nicosia v. Amazon
2016 - 2nd circuit holds that Amazon failed to give conspicuous notice of the terms of agreement.
Case summary: Triple Up Limited v. Youku
2017 - Chinese internet video company licenses videos from 3rd parties and puts them online but sometimes the videos violate American copyright law so Triple Up Limited, a copyright holder, sues - Court holds no personal jurisdiction! because even though Youku possess the ability to geoblock based on user location (which it does for employee-loaded videos), and the Plaintiff's proposed solution is that a failure to geoblock American users is purposeful availment, which the court does not care for
Case summary: Google v. Equustek
2017 - Google wants to stop enforcement in the US of a Canadian court order after Equustek has trade secrets stolen by a competitor and wants the competitor's misbegotten services de-listed (Google complies in Canada after a court order and does not want to in the US/other places) Intermediary isn't liable for the user unless you yourself are creating the information --> kind of a leap here that making Google take the content down would mean Google was responsible for the content
Case summary: South Dakota v. Wayfair
2018 - when does a geographic sovereign have the authority to regulate internet activities? - SD has no sales tax on entities with no brick-and-mortar businesses, but online retailers are doing more business than those, so they try to charge a sales tax, which is challenged - result: states can charge tax on sellers from out of state even without a brick-and-mortar presence in state (overturned Quill v. North Dakota which had held otherwise in 1992)
What entities (circuits, agencies) have called the internet a telecommunications service?
4th Circuit (2001), and 9th Circuit (2000)
Case summary: Microsoft v. US
A US Magistrate judge has issued a warrant ordering Microsoft to turn over e-mails from an account, Microsoft refused to comply because the data was on a server in Ireland --> 2nd Circuit agreed with Microsoft because Stored Communications Act (SCA) could not be construed extraterritoriality Question of the nature of a warrant under the SCA - is it a search warrant (physical in nature) or a compelled disclosure (US Gov't argues "possession, custody or control" is the standard)
What's the difference between a distributor and a publisher?
A distributor is only liable if they knew or should have known of the defamatory statement at issue. interactive computer service under the Communications Decency Act, section f. A publisher is one who repeats or otherwise republishes a libel is subject to liability as if he had originally published it. "Responsible, in whole or in part, for the creation or development of information." Information content provider under Communications Decency Act, section f. Relevant cases: Cubby v. Compuserve and Stratton Oakmont, Inc. v. Prodigy Service Co. and then "Communications Decency Act"
Communication Decency Act
Act which contained indecency provisions that were struck down in Reno v. ACLU (1997 predecessor to 2000 ACLU v. Reno case we read)
Stored communications act
An act allowing law enforcement access to electronic messages greater than 180 days old without a warrant (but with a court order or subpoena, such access may be obtained for messages less than 180 days old)
Why did the FCC reclassify the internet as a telecommunications service in 2015?
Because the FCC can't regulate unless it's a telecommunications service.
What is the current status of net neutrality?
California made its own net neutrality laws which were challenged by the FCC in court, but as it stands, the appellate court pointed to the FCC's 2017 statement to say that if the agency lacks the authority to regulate broadband, it similarly lacks authority to prevent states from regulating it (Mozilla Corporation v. FCC).
Explain the first type of intervention by government in traditional infrastructure markets to impose commons management: (1) Government may require an infrastructure owner to provide nondiscriminatory access to a potential competitor
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. Purpose: to facilitate competition and entry, and prevent foreclosure. Limited to situations in which the infrastructure market is not competitive. Reasons why you'd do this: (1) open access regulation may require an infrastructure owner to allow competitors access on nondiscriminatory terms (I.e. through unbundling, wholesaling, functional separation) (2) nondiscriminatory access may be imposed when the infrastructure is deemed to be an "essential facility" within the meaning of antitrust law. - Brett M. Frischmann, "Infrastructure: The Social Value of Shared Resources"
Concurrence in Microsoft v. US
Concurrence by Judge Lynch asks Congress to retool the Stored Communications Act because "there is no evidence that Congress has ever weighed the costs and benefits of authorizing court orders of the sort at issues in this case." Skeptical that the "mere location abroad of the server on which the service provider has chosen to store communications should be controlling" Wonders (and half-advocates) for the citizenship of the person whose emails are sought being a factor
What's the headline from the article by Daniel Seng, "The State of the Discordant Union"?
Counter-notices go uncontested a HUGE majority of the time.
Case summary: Viacom International v. Youtube, Inc.
Decided on summary judgment because Judge wanted 2nd Circuit guidance (to avoid long trial) --> holding eventually becomes on appeal that specific knowledge is required, with notice requiring enough information to precisely locate (and mere knowledge of infringement is not enough notice).
What is the DNS?
Domain Name Service - "Address book" for the the network, enabling the network to match the hard-to-remember IP addresses with names
What entities (circuits, agencies) have called the internet an information service?
FCC (2002), deferred to in 2005 SCOTUS case and then FCC said ALL broadband (cable and DSL) are information services
Exceptionalist vs. Unexceptionalist positions on First Amendment analyses of content on the internet
From Post, idea that there are "crucial differences between a brick and mortar outlet and the online Web that dramatically affect a First Amendment analysis." Unexceptionalist camp: majority opinion (Thomas, Rehnquist, Scalia) in Ashcroft v. ACLU Exceptionalist camp: Third Circuit in ACLU v. Reno
Case summary: Lenz v. Universal Music Group
Holding: Before sending a notice, the infringer must be evaluated for fair use, for fear of a fraudulent notice.
Case summary: Bateman v. Mnemonics
Holding: not infringement until Plaintiff proves it's not fair use.
What is the relationship between ICANN and the UDRP?
ICANN has promulgated a UDRP to resolve conflicts between trademark owners and domain name registrants.
Role of FCC as a regulator
ISP wasn't immediately understood as a common carrier, so either carting content or processing or changing the content, you were an information service provider. Fear of treating it as a telecomm service lest the internet be encumbered FCC has the authority to interpret an ambiguous act and make a decision
What is the Inwood test for contributory trademark infringement?
If a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product tone whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorially responsible for any harm done as a result of the deceit. - Inwood Laboratories, Inc. v. Ives Laboratories, Inc.
What does ICANN stand for and when was it formed?
Internet Corporation for Assigned Names and Numbers - October 1998
What's the chief argument that end-to-end network design is not neutral?
It precludes prioritization, which could be sold to customers who demand quality of service guarantees. Can be said that a network incapable of discirmination is one that actually discriminates against those who need or want discrimination, typically in the form of quality of service. There is bias in the neutrality argument - rather than have bias be technologically determined, should be determined by the market rationally.
What's the chief argument that end-to-end network design is neutral?
Makes the network application-blind - prevents infrastructure providers from distinguishing between the applications and content running over the network and from affecting their executions. Insulates end-users from market-drive restrictions on access and use --> limitation on property rights of network owners
Does an ISP have a duty to police?
No - 512(m).
What's a common carrier?
Obligations arose in common law for a range of businesses that opened their doors to the public Big in early communications and transportation industries (railroads) Historically said to arise in markets affected with the public interest - Brett M. Frischmann, "Infrastructure: The Social Value of Shared Resources"
Explain the second type of intervention by government in traditional infrastructure markets to impose commons management: (2) Government may require an infrastructure owner to provide nondiscriminatory access to all customers
Owner may be deemed to be a "common carrier" and thus become obligated to provide nondiscriminatory service to all customers at reasonable rate unless there are unreasonably high risks or capacity constraints - Brett M. Frischmann, "Infrastructure: The Social Value of Shared Resources"
What is the Dendrite test? (4 pts)
P must: (1) undertake efforts to notify the anonymous poster that he is the subject of a subpoena or application for an order of disclosure + withhold action to afford the anonymous defendant a reasonable app to file/serve opposition (2) to set forth the exact allegedly defamatory statements purportedly made by the anonymous poster (3) to satisfy the "summary judgment" standard And then trial court must (4) balance the D's 1st amendment right against the strength of the PF case (filled by summary judgment standard)
Johnson and Post's considerations on which the relationship between physical borders and development/enforcement of legal rules is based:
Power (control over physical space and the people/things in the space) Effects (relationship between physical proximity and the effects of any particular behavior) Legitimacy (persons within a geographically defined border are the ultimate source of law-making authority for activities within that border) Notice (can give notice that the rules change when physical boundaries/borders are crossed) ("Law and Borders - the Rise of Law in Cyberspace")
What are PLAs?
Product Listing ads. The format lets a marketer place an ad for an item with large images and price information in the prime digital real estate at the top of search results. Growing at almost 3x the rate of traditional text-based search ads (Bloomberg article, "Google Gets Record $2.7 Billion EU Fine for Skewing Searches")
What law was the order "In the Matter of Protecting and Promoting the Open Internet" based on?
Section 706 of the Telecommunications Act Title II of the Communications Act
Communications Decency Act
Sets up definitions in section f that are analogous to Prodigy and Cubby v. CompuServe's definitions of publisher (termed "information content provider") and distributor (termed "information computer service") Immunizes providers of interactive computer services against liability arising from content created by third parties: "No provider... of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." (Section 230(c)) --> but this only applies if the website is not also an information content provider (Section 230(f)) TLDR: Congress sought to immunize the removal of user-generated content, not the creation of content. See: development under the CDA in Fair Housing Council of San Fernando Valley v. Roommates.com
What antitrust efforts have been undertaken against Google?
Several competitors formed "Fairsearch" and have lobbied the FTC and the European Commission to bring an antitrust action against Google. FTC launched a formal investigation in 2011 but closed in 2013 with settlement that didn't involve issue of search bias. Several companies filed complaint about search bias in Feb 2010 - in November, EC announced a formal probe, and in 2013, Google suggested a blend of architectural and labeling remedies which the EC rejected.
What was at issue in the 2017 fine of Google by the EU?
Skewed search results in breach of antitrust laws/abusing market dominance - Google was pushing its own shopping service (initially called Froogle and later just a shopping comparison service at the top of search results) to the top of results and pushing competitors back to, on average, page 4 (and 95% of clicks happen on the first page of results). Google used PLAs (Product Listing Ads - featuring images and integrated into the search page, as opposed to text-based ads). $2.7 billion fine, must tell the EU its plan to change in 60 days and affect that change within 90 days of the decision or risk up to 5% of its daily revenue in fines. Wants google to respect the "principle of equal treatment."
What are the requirements for the DMCA's ISP Safe Harbor rule (512(c))?
Subjective (i) does not have actual knowledge; or Objective (ii) absence of actual knowledge/is not aware of facts or circumstances from which infringing activity is apparent TAKEAWAY: facts or circumstances are not specific knowledge; and knowledge is not sufficient if not leading directly to remedy. Control means more than the ability to just take it down - now means creation/control/involvement in creation of content Text of statute: 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.
Calder "effects" test
Test for determining whether a forum's courts may constitutionally exercise specific personal jurisdiction over a defendant based on whether the effects of the defendant's intentionally tortious conduct were felt in the state. Requirements: (1) intentional action (2) expressly aimed at the forum state (3) knowledge that the brunt of the injury be felt in the forum state
What was the FCC's argument in the 2017 repeal?
That the FCC has no authority to regulate broadband providers.
What's a root database?
The Root continues the hierarchical pattern upwards - the Root database lists the name and IP addresses for all domains immediately beneath it in the hierarchy (I.e. all of the TLDs. There are 13 Root servers.
What is the 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.
What's the principle of equal treatment?
The principle suggesting that Google must apply the same processes and methods to position and display rival comparison shopping services in Google's search results pages as it gives to its own comparison shopping service.
What are some arguments for page ranks not being opinions?
The world doesn't treat them as such: rather, the more dominant a search engine is, the more its ranking is treated as a fact about the relevance/quality/prominence of the ranked. Search engines claim objectivity in advertising/marketing of services but opinions when challenged. Search engines serve valuable social functions, but indiscriminate application of 1st Amendment immunities to their results provides unnecessarily expansive protections. Search engines have no legal obligation to actually follow the algorithms they claim to adhere to. We all stand to lose if increasingly authoritative search engines to not act responsibly when publishing and disseminating the info they gather. p.264
What's a TLD?
Top-level or first-level domains (I.e. .com, .org, .edu, .net)
What does UDRP stand for?
Uniform Dispute Resolution Policy
What does UDRP stand for
Uniform Domain-name Dispute Resolution Policy
Headline of Kavanaugh's dissent in the 2017 FCC decision
Wants to limit Chevron deference because thinks the FCC is flip-flopping on too big an issue and wishes the major rules doctrine applied. "while the Chevron doctrine allows an agency to rely on statutory ambiguity to issue ordinary rules, the major rules doctrine prevents an agency from relying on statutory ambiguity to issue major rules." Also makes a little first amendment claim
When does the essential facilities doctrine apply?
When the following requirements are met: (1) a monopolist controls access to an essential facility (2) the facility cannot be reasonably duplicated by a competitor (3) the monopolist denies access to a competitor and (4) it was feasible to grant access. Only applies 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. - Brett M. Frischmann, "Infrastructure: The Social Value of Shared Resources"
What is the central issue in the net neutrality debate?
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.
Does Congress have any power to address net neutrality?
Yes - could use pre-emption authority to make the issue a federally regulable area, but hasn't.
Can willful blindness be enough for knowledge under the Inwood test for contributory trademark infringement?
Yes. "When it has reason to suspect that users of its service are infringing a protected. mark, it may not shield itself from learning of the particular infringing transactions by looking the other way." - Tiffany Inc. v. eBay, Inc.
Case summary: Ashcroft v. ACLU (O'Connor 1/2 concurrence & 1/2 dissent)
advocates a national obscenity standard
What are three considerations for vicarious liability in the scope of employment?
allocative efficiency loss spreading fairness (Ira Bushey & Sons v. US)
Describe Youtube's "notice and takedown" procedures
automatic, and maintain liability shield from DMCA
Headline on general vs. specific jurisdiction in internet law
general jurisdiction very rarely applies: specific jurisdiction can apply but the underlying facts have to be related to the cause of action - the rule appears now to be that if the facts work for relating to the transaction, then there's specific jurisdiction --> and if not, then out of luck.
What is "state action" doctrine?
when the conduct of a private party is fairly attributable to the government for constitutional purposes
