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cpsc180bnotes - Computers and the Law Computer Science 180...

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Unformatted text preview: Computers and the Law Computer Science 180 Fall 2003 Notes September 3, 2003 = Intro to Course September 5, 2003 = Legal Primer I: Statutory and Common Law Brief cases Common Law = judge-made law (practitioners, individual case, no concern for big picture) Statutory Law = law made by legislators (the big picture) Court System Structure: Supreme Court Court of Appeals (11 circuits) decisions binding on courts in that circuit District Courts (trial) District courts can come to different conclusions Court of Appeals decisions are binding on courts below Supreme court make final binding decisions Then American system is more rigid than the British system because the US publishes only 1 opinion. In England, every judge writes an opinion. In America, the courts interpret statutes Contract Law = Common Law Plaintiff = One who commences a personal action or suit to obtain a remedy for an injury to his rights Defendant = A person required to make answer in an action or suit; -- opposed to plaintiff Case #1: Peevyhouse v. Garland Coal & Mining Co. Garland offers to pay Peevyhouses to strip their land to get the coal, then restore the land which would cost $29,000. Garland refused to restore the land. Peevyhouses sue Garland for $29,000 to restore land Garland says land was only worth $300 when destroyed, so they'll only pay $300. Jury considers $5,000 settlement. Peevyhouses appeal. Garland cross appeals. Other cases are reviewed. Final decision is Garland owes $300. DISSENT = willful breach of contract Peevyhouses attempt to attest value of original land, but it's too late for that. ****This is an Efficient Breach of Contract. Economic analysis = cheaper to breach than to adhere. Case #2: In re Phillip B (1979) Phillip had Down Syndrome, and parents didn't really want him even from birth At the age of 3 he was diagnosed with a congenital heart defect. The case was whether he should be declared a dependent child of the court so that he culd get the operation. His parents were unwilling to give permission for the operation. There was a 5-10% mortality for average person with heart defect. Higher morbidity for those with Down's Syndrome. Phillip was given no education or play time. Lower court dismissed case, no clear and convincing evidence. Appeals court will only look at evidence to prove necessities. Looks to constitution: parental autonomy not absolute (country must protect children) Court declares that there is not substantial evidence and the petition is denied. Case #3: Guardianship of Phillip B. (1983) Phillip became close to Hs who volunteered at We Care starting in 1972. They educated him and eventually treated him as part of the family giving him a bedroom, assigning chores, and attending Boy Scouts. Meanwhile the Bs visit rarely and never allow him to go to their house. 1978 Bs don't allow Phillip to go to Hs' house anymore and he goes into withdrawal. 1981 Hs petition for guardianship so that he can have operation as well as a loving family rather than his current neglectful family. Trial courts allow Hs to be guardian. Bs appeal. Appeals court finds an error Court has to wrestle with statute Once Phillip turns 18, he chooses to be adopted by the Hs. MORAL: The law is about people, and can work the way we hope. September 8, 2003 = Legal Primer II: Contract Law Contract = A promise, in performance of which the law sees as a duty or for the breach of which the law will provide a remedy in the form of damages. Promisee = a person to whom a promise has been made Promisor = a person who makes a promise Offeree = a person to whom an offer has been made Offerer = a person who makes an offer Offer = a manifestation of an intention to contract Is it an offer? Test: Would a reasonable person in the position of the offeree believe the offer? An offer does not have to contain all the terms of the contract. An offer cannot be vague (ie. "fair price") Ad = an offer to deal (seller becomes offeree) Ways to terminate an Offer: 1. Termination because of lapse of time (usually one month is considered reasonable time) 2. Revocation by words or conduct Offer sent through mail not effective until received. Offer can't be revoked after accepted. 3. Rejection by offeree by words or conduct Rejection sent through mail not effective until received Indirect rejection (ie. Counteroffer = rejection of original) BUT bargaining does NOT terminate an offer ("Will you take . . . ? means offer is not dead). 4. Death or Incapacity Acceptance of an Offer: One must know about offer when performing acceptance in order to receive benefit Acceptance is good when mailed (Proof of mailing is distinct from the simple legal issue.) Consideration as part of an Offer: There must be bargaining and exchange. Performance, forbearance, promise Gifts are not an enforceable form of consideration. Offer + Acceptance = Agreement Offer + Acceptance + Consideration = Contract Case #4: Batsakis v. Demotsis Batsakis sold Demotsis $25 worth of Greek money (500,000 dramchaes) for $2,000. Consideration = agreement to sign letter Both parties knew it was an incorrect contract Duress does NOT work as a way to avoid a contract Unreasonable consideration. Lower court gives Batsakis $1100. She (Demotsis) got what she bargained for not fraudulent. Inadequacy of consideration (ie. A valuable rock) Contracts that must be written Statutes of Fraud 1. Promise in consideration of marriage must be written. 2. Executor or administrator to pay (in writing) 3. Service contracts not capable of being provided/performed w/in a year must be written. 4. Contracts for the sale of goods that cost $500 or more Contracts may not be ambiguous. Void for ambiguity: each party attaches a different meaning to a fundamental term and neither party knows the meaning assumed by the other party. The contract is void. Case #5: Raffles v. Wichelhaus (1864) GENUINENESS OF ASSENT Mistake no meeting of the minds Unilateral = one of the parties made a mistake no excuse for performance unless: Other party knew, or Math mistake Raffles v. Wichelhaus (1864) Mutual Mistake of Fact = both parties made a mistake either may rescind Mutual Mistake of Value = usually enforceable 125 bales of cotton shipped "to arrive ex `Peerless'" from Bombay to Liverpool and will be bought by the people in Liverpool for 17.25 shillings/lb. Plaintiff = cotton seller Defendant = cotton buyer wanted cotton from October ship. The receiver refused to pay for the cotton shipped in December by the boat of the same name as the one in October. Milward was convinced that the when is immaterial since it is not stated in the contract, but his theory is not accepted. Intention is of no avail, unless stated at the time of the contract. The time of sailing is no part of the contract. There was no consensus ad idem [agreement on the same thing], and therefore no binding contract. The Court declared that the identity of the ship must be a fundamental term, and it wasn't so the contract was flawed. Defendant wins. (Buyer of cotton.) September 10, 2003 = Contracts Online contract = created wholly or in part by using computer networks i.e. e-mail, functionalities of website, EDI (electronic data interchange = computer to computer), downloading EDI used in insurance industry, funds transfers Security is an issue What happens when something goes wrong = allocation of loss? Handle it upfront in advance = greatest power of contract law. Forsee problems and resolve them before things start Rule: No one wants to waste time and $$ on court proceedings. Offer online = reasonable person Website displays product info (ad) Case #6: Lefkowitz v. Great Minneapolis Surplus Store, Inc. (1957) This is an appeal from an order of the Municipal Court of Minneapolis denying the motion of the defendant for amended findings of fact, or, in the alternative, for a new trial. The order for judgment awarded the plaintiff the sum of $ 138.50 as damages for breach of contract First occasion, by a "house rule" the offer was intended for women only and sales would not be made to men Second occasion, Value was speculative for coats, but not stole Seller claims it was a unilateral offer Craft vs. Elder and Johnston "not an offer made to any specific person but was made to the public generally. Thereby it would be properly designated as a unilateral offer and not being supported by any consideration could be withdrawn at will and without notice." The offer for the sale of the stole was clear and left nothing open for negotiation While an advertiser has the right at any time before acceptance to modify his offer, he does not have the right, after acceptance, to impose new or arbitrary conditions not contained in the published offer (too late to change terms) Case #7: Mesaros v. US (1988) Breach of contract by US gov. Congress meant to make a certain # of coins in commemoration Marketing could have been done better Reserve coins with check, money order, CC 35.5 million coins for sale Value of gold coins went up February 18, mint could not process nov 26 order April 7, bank says they did authorize charge People that ordered by CC were not processed, but money orders and checks were CC orders processed slowly Mesaros' allege breach of contract, acceptance seals offer Court disagrees saying that it was an offer to deal Reasonable person would not assume ad is a contract "Please accept my order" = buyer is now making offer Impossible to do it first come first served Ads are considered invitations for offers not offers In Mesaros v. U.S., 845 F.2d 1576 (Fed. Cir. 1988), mailing list ads sent by the U.S. Mint to prospective buyers of Statue of Liberty coins were not binding. ``Generally it is considered unreasonable for a person to believe that advertisements and solicitations are offers that bind the advertiser.'' Can't order mint to produce more coins = that is Congress' job Didn't say it was supposed to be first come first served, Mesaroses LOSE Accepting Offers Online Any manner that's reasonable in circumstances E-mail, clicking on designated button, downloading Offeror may not be in habit of reading e-mail = not a valid acceptance Be safe and accept in form that offer was made Silence is not a valid acceptance unless offeree agrees to it (suggests it) Offers as well as acceptance can be generated by computer itself Tracking # is an acknowledgement of an offer not an acceptance because it may not be available Acceptance is when it is shipped = mailbox rule For a contract to be written = the contract must be reducible to tangible/printable form in order to be written (i.e. tape recordings) Unsaved e-mail is like a verbal contract Digital evidence = often the computer saves "deleted" files until they are overwritten E-mail not as ephemeral as people believe Signatures Contracts that are written also have to be signed by the party against who enforcement is sought Electronic Contracts What is a signature? Any symbol used with the present intention of authenticating a document Checks don't HAVE to be signed the same Names on telegrams, faxes, mailgrams, typewritten, letterhead paper are signatures Common Law = anything is sufficient as long as it's an intention to authenticate Shrink-wrap contracts = A "shrink-wrap license" is the pre-printed form agreement placed on or inside of a cellophane-encased product package, i.e. the kind most software CDs are packaged in.) Web-wrap contracts (or Click-to-Accept contracts) = formed using web (A "shrink-wrap license" is the pre-printed form agreement placed on or inside of a cellophane-encased product package, i.e. the kind most software CDs are packaged in.) Types of Warrantees 1. Implied 2. Express September 12 = Contracts (cont.) 3 Papers - 10% each 1 Quiz - Multiple Choice, 12 questions - 10% 1 Midterm - 20% or nothing - it's your call 1 Final - 50% or 30% depending on midterm Paper - Just say what you're going to say, none of this high school bullshit Due monday, september 29th a website displaying product information may be an ad or it may be an offer if the quantity and the price are specified, there is an identifiable offeree, if nothing is left to chance, then an ad becomes an offer, and the same applies in cyberspace Shrink-wrap contracts - the license agreement you enter into when you buy a piece of software terms contained in a shrink-wrapped box - You take box off shelf, go to cash register, terms of license agreement are inside the box - You offer to buy it, they accept offer by selling it to you - take it home, open box, see terms - those terms are not a part of the contract formed in store - if the terms are made known before purchase, then contract can be enforced Case #8 : Arizona Retail Systems, Inc. v. The Software Link, Inc. (1993) The court held that shrinkwrap terms that were on the packaging and were inconsistent with specific representations made by the seller were unenforceable. The court concluded that additional "terms and conditions" disclosed after the shipment of the goods were invalid without the buyer's expressed specific assent. Buyer wins. Arizona Retail Store (ARS) was an offeror that placed orders by phone, and the offeree, TSL, promised shipment of the goods. The court followed the Step-Saver rationale that the parties had formed a contract before TSL insisted on the terms of the shrinkwrap license. In this case, TSL argued that the shrinkwrap license was a proposal for a modification to the contract under UCC Section 2-209, and that ARS had assented to the license terms by opening the package. The court, however, required that the ARS's assent must be expressed and could not be inferred from ARS's conduct in reselling the software. summary judgement - motion that says that facts as they have been presented, even taken in the light most favorable to my opponent, must result in a judgement for me as a matter of law summary judgements are very common - nothing to lose, if denied trial just moves on judgement non obstente verdicto - judgement not withstanding the verdict - no reasonable jury should have found as they did, so the judge should find for me anyway guy from az. retail read agreement on box, went ahead and opened it - thought it was unenforceable because it was still a shrink-wrap contract clients experience difficulties - ARS contacts PCMos, who says that they need to buy the upgrade eventually, ARS gives up and files a lawsuit against TRS, maker of PCMos court applies Georgia law code, which can be done both parties are wrong to view this matter as involving 1 type of contract - there are many the first contract is when ARS gets the evaluation copy and opens it, thereby agreeing to the terms subsequently, ARS ordered the goods from TSL, who accepted the orders, and shipped the goods with each package displaying the contract court rules that TSL entered into contract when it shipped the goods ARS wins the summary judgement on the basis that the contract was formed when offer to buy was made and then TSL completed agreement (at which point ARS had not seen contract terms on the box) Case #9: ProCD, Inc. v. Zeidenberg (1996) Terms inside a box of software bind consumers who use the software after an opportunity to read the terms and to reject them by returning the product In this case, rejecting the buyer's claim that he could not be bound by the terms of a shrinkwrap license that were not displayed on the outside of a software box the court determined that the terms of the shrinkwrap license which were not unconscionable, were enforceable because no contract was formed until the buyer "accepted" the terms of the license by electing to keep the software. Holds that terms inside a box of software bind consumers who use the software after an opportunity to read the terms and to reject them by returning the product There is a practical difficulty of informing every customer of all of the terms contained in an information license before money changed hands and concluded that a purchaser could prevent formation of the contract simply by returning the goods. This was a rejection of the decision of the lower court, which said that the contract info had to be on the outside of the box. Easterbrook PRO CD vs. Zidenberg PRO CD claims that Z has broken contract restricting him to personal use by using software for commercial purposes Z says that b/c the agreement was inside the box, it was not a part of the purchase contract when procd sells the software that is a database containing phone directory Easterbrook says that the ability to charge a higher price for institutional use is essential for economic flow Z bought copy personally, put it on web for a fee court held that contract was inside the box so not applicable trial court said that you couldnt agree to a hidden contract terms on the inside can be applied if they are incorporated in some way in the terms on the outside according to E easterbook lists many examples of contracts contained within packages that still hold (legal drugs, insurance, plane and concert tickets) here procd proposes a contract that would be enacted upon use of the software, not purchase, b/c upon purchase, parties agreed that there were terms inside the box Case #10: Hill v. Gateway 2000, Inc. (1997) A customer picks up the phone, orders a computer, and gives a credit card number. Presently a box arrives, containing the computer and a list of terms, said to govern unless the customer returns the computer within 30 days. Are these terms effective as the parties' contract, or is the contract termfree because the order-taker did not read any terms over the phone and elicit the customer's assent? A contract need not be read to be effective. The Seventh Circuit held that the terms do indeed govern the parties' relationship, validating Gateway 2000's "approve or return" device. The court, in reaching this conclusion, held that the offer of Gateway required acceptance by retaining the computer after receipt of the terms. The court rejected plaintiffs' argument that the contract was formed when the consumer gave its credit card number to Gateway This was a reversal of the trial court's original decision. easterbrook again are terms inside computer box part of contract hills file a suit alleging fraud, class action suit for all other purchasers court here says that terms dont have to be read to be effective Easterbrook cites PROCD, saying that contracts inside the box are enforceable, on the basis that it's silly for salesmen to recite contracts both procd and this contract were executory, thus still being performed Hills argued in PROCd case box alerted that terms were inside, but gateway did not - easterbrook said this was silly b/c it was a shipping box ad stated that comp comes with limited warranty and lifetime support, thus suggesting that something would be coming with computer easterbrooooooooook sides with the hills, saying that they are silly Warranties 2 kinds of warranties - express and implied implied warranties are included in sales of goods by merchants 2 different implied warranties - implied warranty of merchantability - this means that the good are fit for their ordinary purpose - if you buy a bike you have a right to expect that it will roll - fitness for a particular purpose - this only comes up in certain circumstances - only included if the seller has reason to know what the buyer intends to do with the goods, and the buyer relies on the seller's expertise express warranties - explicit statements by the seller about what is guaranteed, what the product will do can warranties be disclaimed? yes they can, some of them anyway implied warranties can be effectively disclaimed, but there are requirements in how you do it implied warranty of merchantability can only be disclaimed if the word merchantability is used in the disclaimer implied warranty of fitness for a particular purpose may be disclaimed by using those worse or with all faults or something like that disclaimers must be conspicuous express warranties can never be effectively disclaimed this is just logical think about it so why "we disclaim all warranties express or implied"? because they hope that people will believe it September 15 = Legal Primer III: Torts Types of Warrantees: Implied 1. Merchantability = goods fit for ordinary purpose 2. Fitness for a Particular Purpose: arises if seller has reason to know what buyer intends to do with goods Disclaimer (goods sold as is) Express 1. Explicit statements by seller about what is guaranteed May never be effectively disclaimed Tort = a civil wrong other than breach of contract for which the court will provide a remedy in the form of recovery of damages When should losses be shifted from an injured party to injurer? Differ from contract cases torts don't have much documentation I.e. get hit by a car Plaintiff uses preponderance of evidence Jury usually told that if there is equal fault, plaintiff wins Goal = restore plaintiff to equivalent Damages both tangible and intangible (pain and suffering) Common law provides for plaintiff to sue ONCE there are statutes of limitation Attorneys and fees = plaintiff's lawyer paid only if plaintiff wins. Lawyer gets previously set % (contigent fee) this is illegal in other countries Right to bring suit to trial Lawyers are gatekeepers only accept cases they know they'll win Very few tort cases brought on principle usually because of injury Insurance Company is target Vicarious Liability = Employers can be liable for misconduct of employees (within scope of employment) should be based on ability to pay Torts more likely to reach litigation than contract case (because they are unintended harms and don't have relationship with other) Tort Claims Act of 1946 = sovereign immunity of Fed Gov waived Fed Courts ONLY have jurisdiction over such suits No jury trials No punitive damages permitted Fed = Postal services, treasury department, injury to military personnel all immune States = All except MD, MI have waived sovereign immunity Cities never considered sovereigns = creatures of state State can waive municipal immunity Bigger defendant, bigger punitive damages award has to punish company enough for them to change behavior Intentional Torts = everyone is liable 1. Battery = harmful/offensive contact 2. Assault = apprehension of immediate battery 3. False Imprisonment = has to be active restraint (time period irrelevant, has to be limitation on freedom of movement) 4. Intentional Infliction of Emotional Distress = must be outrageous conduct (have to prove harm substantial emotional distress) This is a fall back tort It has to be really bad. 5. Trespass to Land/Property = has to be invasion by defendant Electronic impulses that appear on computer when hacked is considered trespass 6. Trespass to Chattels (Property, possessions) = must reduce value to owner 7. Conversion (Theft) = very damaged, useless, worthless Defenses to Intentional Torts 1. Consent = plaintiff must have capacity to consent (children don't) Words or implication? 2. Self-defense = meets level of appropriateness? Was it reasonable for the person to defend themselves? 3. Defense of Others = Was it reasonable to believe they were in trouble? Defending people you CAN use deadly force 4. Defense of Property CANNOT use deadly force 5. Necessity Boat = liable for damages, but not trespassing because he had no choice 6. Economic and Dignity Miscellaneous Torts 1. Defamation 2. Invasion of the Right of Privacy a. Appropriation by defendant of plaintiff's name or picture for defendant's commercial advantage b. Unreasonable Intrusion into plaintiff's privacy c. False Light Publication d. Publication of Private facts 3. Intentional Misrepresentation of fact, not opinion i. has to be justifiable reliance and damage September 17 = Legal Primer III: Torts (cont.) Negligence Elements that must be established for a tort to occur because of negligence: 1. Duty 2. A breach of duty 3. Cause in fact 4. Proximate cause 5. Harm/damage Standard of care reasonable person standard (not infallible) - general level of moral judgement of community for what ought to be done conduct is deciding factor, measured against external norms stupidity is not a defense doctors held to higher standards than norm children held to standards reasonable to their age - sometimes they should be treated as an adult (ie boat driving) proof that defendant fell below is legitimate statutes play minor role in negligence Prove Negligence Plaintiff must prove all 5 elements to win 1. Duty Common law rule = no duty to protect someone else Some states have passed "Good Samaritan" statutes Whether there is a duty is a question of law Question of law = decided by judge Question of fact = decided by jury 2. Breach of Duty Question of fact Did defendant meet standard of care that jury decided applies? Documentary of evidence (real, physical, direct = testimony of witness) Real is most convincing Testimony much more easily challenge can cross-examine Circumstantial evidence strength res ipsa loquator = establishing breach of duty circumstantially 1. has to be accident that doesn't happen without negligence 2. has to be defendant's negligence 3. Cause in Fact = was the breach of duty a cause of the harm? 4. Proximate Cause = where you draw line of responsibility Reasonable Forseability Test = Is it resonable for defendant to have forseen harm? (this is minority position) Defendant is responsible for any harm proximately resulting from his/her negligence (this is majority position) Subjective, up to jury where line is drawn (how far are we willing to go back to determine whether they have responsibility for harm?) Issue determined by circumstances 5. Must be Harm September 19 = Defamation Affirmative defense 1. Contributory negligence (means plaintiff can't recover anything) is most common form of affirmative defense Comparative Negligence (modern form of contributory) 1. Pure comparative negligence = parties share fault on strict percentages 2. Modified, not as Great as = Plaintiff recovers fully even if 40% comparative negligent 3. Not greater than = plaintiff recovers fully as long as not more than 50% contributorily negligent Both parties equally negligent 2. Waivers Can't let you waive a claim for liability due to company's recklessness 3. Assumption of risk is implied Amusement parks, baseball game Defense Theory of Recovery 1. Strict Liability = don't establish breach Unnatural hazards Abnormally dangerous activities Dealing with products (defective design) Consumer Expectation Test = product is defective if it doesn't perform as expected Risk/Benefit Test = product have presentable dangers Product liability = many ways to bring a claim Defective design = tort Misrepresentation of product = tort Breach of express warranty = contract form Breach of merchantability = contract (unless disclaimed) Breach of Implied warranttee for Fitness = contract Contract and Torts have different advantages 2 reasons to go with Torts: 4 years to bring suit = contract 2-3 years from date of injury (or when discovered) to bring a suit = tort Contract suits don't permit punitive damages (which are usually higher) Defamation Libel = written Slander = spoken Incredibly easy to publish and cause harm on grand scale in cyberspace, and do it anonymously Establishing Defamation 1. Statement must be defamatory Insertion defamatory fact Plaintiff has burden to establish Statements can be made in jest, but depends only on how it is taken rather than given Quoting a statement is not defamation as long as it is inaccurate and in good context Photographs placing person in unflattering light are defamatory Online makes graphics based defamation easy 2. Statement must be about this plaintiff What a reasonable person in intended audience would conclude Any living person/corporation can claim defamation, but dead can't Only individuals or entities can claim defamation No individual in a group can claim defamation (group = 25+) Has to be interpretable as about a particular plaintiff 3. Statement must be published = communicated to a 3rd party Can happen intentionally or negligently 3rd party must be capable of understanding it Reprinting/forwarding defamatory material = forwarder can be liable 4. Statement must injure plaintiff's reputation Ex. Tell that someone has AIDS Ex. Allege chastity of a woman If defamed person a famous, public person = it has to be knowingly false, not just not bothering to find out Product Defamation is an issue Defenses to claims of defamation 1. Consent 2. Truth 3. Common Law Rule (and UK) = defendant is required to prove truth of statement 4. US Rule = plaintiff has to prove it false 5. Privileged = in judicial proceeding 6. Fair comment = on matters of public interest 7. Parody = only when court thinks it's funny Case #11: Gordon v. Lancaster Osteopathic Hospital Assn., Inc. (1985) Pathologist = written contract Gordon didn't get to be chairman and didn't get contract renewed "Lack of trust in his performance" and "under no circumstances should he be made chairman" Gordon says letters are defamatory They are opinions and not enough to be defamation Gordon alleges conspiracy to defame loses Emotional distress Case #12: Carl Sagan v. Apple Computer, Inc. (1994) Apple changes name of Sagan to Butthead Astronomer Computer Court agrees that it is an opinion Clearly not saying it's a fact Humorous retaliation Opinion protected under Amend #1 As a public figure he gets less protection Case #13: Blumenthal v. Drudge (1998) Drudge writes an online gossip column ($3000 per month) available to all AOL subscribers Retracted statements about Bloomenthalls Lawsuit for defamation Section 230 of Communications Decency Act Plaintiffs say AOL is responsible and had editorial control Court says AOL did not exercise editorial control irrelevant because Congress protected service providers so that information wasn't withheld out of fear September 22 = Liability for Conduct of Others Copyright playboy case Trdemark infringement liability Unfair competition Defamation Liability of the thrid party depends on whether 3rd party is publisher, distributor, or common carrier Publisher presumed to excercise control over content, so it's liable of content Distributer has no control only liable for infringement/defamation if brought to distributor's attention and they ignore it Common carrier duty to carry content = immune for liability of content (ie phone, usps) Covey vs. compuserve compuserve not liable because don't know Oakmont vs. prodigy prodigy was liable for control of content This is how section 230 came about Case #14: Zeran v. America Online, Inc. (1997) Selling t-shirts about bombing Zeran gets high volume of derogatory calls AOL does not post retractions April 30 = abusive call every 2 minutes Announcer read first posting on air May 14 = KXRO made apology Zeran sues KXRO and AOL Section 230 immunity to any cause of action that . . . Original party still liable Communicated to 3rd party AOL is a publisher and is immunized If filed before feb 8 1996 zeran may have won AOL off hook KXRO not off hook Case #15: Smith v. California (1959) Unanimous decision Smith proprietor of bookstore Prohibits possession of obscene writing Strict criminal liability statute (most common example is speeding no proof of intention necessary) Freedom of press (publish books) doesn't matter if for commercial purposes or not Existence of mensrae States cannot impose liability if it restrict freedom of expression Obscenity not constitutionally protected expression, but the state has no power to restrict distribution of books not obscene. This is because they don't want to restrict booksellers. It is unreasonable to expect booksellers to know what is in each book. Fundamentals of free speech and press . . . Censorship is enemy of freedom in progress. Neither author nor publisher can be punished. Community standards State's power is wider than federal It is important because it is impossible to hold distributor accountable. It would be unreasonable to demand omniscience. Makes any law that makes ISPs liable false Don't need Section 230, we have constitution. Copyright Theories of Infringement Direct = those who actually make copies They are strictly liable Even innocent infringers are liable (may have lower damages) ISPs held liable as direct? Ex. Playboy v. Frena = company is direct even when users do copying Frena was lying because he knew about copying that was going on Court probably would have not decided this way if they didn't know Frena was lying Religious Technology v. = ISP not liable (contradicts playboy conclusion) Contributory Plaintiff must establish 3rd party acknowledgement Actual or constructive (should have known) 3rd party contributed to infringement activities direct participation providing supplies sony not liable for copying on vcr because it sdoes other things besides copy Vicarious Plaintiff must establish that 3rd party had right and ability to supervise infringing activity 3rd party must have financial interest satisfied directly or indirectly 3rd party must have right and ability to stop infringement September 24 = Copyrights Copyright Article 1 Section 8 Promote progress of arts and sciences by preserving intellectual property only for limited time (20 years for patents) copyright = life of author +70 years corporate copyright = 95 years (Sunny Bono Copyright Extension Act) Copyrights created automatically as long as what you are dealing with is original expression fixed in tangible form (don't have to post notice) Don't have to register with copyright office must be registered before filing a suit though Need to register before infringement occurs to get damages Is it original expression? Less valuable than patentable things Rights as copyright holder = right to reproduce work Right to create derivative work based on original (movie from book, translation) Right to public distribution, performance or display Attribution right = right to claim work as own and to prevent others from using your idea Integrity Right = right to prevent use of work Requirements/Prerequisites to get a copyright 1. Must be original work Case #16: Feist Publication, Inc. v. Rural Telephone Service Company, Inc. (1991) Rural is required by law to publish a directory Feist tried to buy license to print regional directory Feist did not get approval, but copied anyway Rural sues for copyright infringement Decided in favor of Rural Feist says info is not copyrighted Facts are NOT copyrightable Compilations/collections of facts ARE copyrightable Author chooses which facts and order, how arranged = is creative, original Arrangement gets protection Key is to understand WHY facts are not copyrightable Original means work independently created by maker Court says work may be original if similar to others Two poems = not novel, both original Authorship presupposed originality "Finder of fact is NOT creator" Encourage people to build on existing work "Sweat of the Brow Theory" (out-dated) Right to copyright book does not depend on whether materials are public by law or have originality = reward hard work This is a waste of time and effort. 3 elements of NEW theory 1. Collection of pre-existing material, facts, or data 2. Must be selection coordination or arrangement of works of authorship 3. Novelty is not requirement, must display minimal level of creativity International News Service v. Associated Press Literary aspects Feist conclusion: Only infringing if these are met: Someone must own copyright Has to be copy of constituent elements of work Did Feist take originality of Rural? NO, these are facts that Feist took!! Rural was not creative (alphabetical by surname, did not select names it was required) Copyright awards originality not hard work Fake names that don't exist are not facts = NO DAMAGES for copying them though Ideas are not copyrightable. It is the expression that is copyrightable. September 26 = Liability for Conduct of Others Fixed in a tangible form = fixed in tangible medium from which it can be conceived, reproduced, or otherwise communicated either directly or with the aid of a machine or device "transitory duration" = even in info resieds in a computer for milliseconds, it meets requirement Do you infringe copyright if you sell a book that you bought? NO = 1st Sale Doctrine you have right to transfer document Abbreviation/summary could be considered derivative work Case #17: Playboy Enterprises, Inc. v. Frena (1993) Copyright and trademark issues. Electronic bulletin board Users downloaded pictures to own discs Charged users to be members who could also upload to bulletin board. Frena lied Admitted photos were substantially similar to originals There has to be ownership of copyright Somebody infringing protected rights Did Frena have access to material? YES Playboy's right to exclusive public distribution and display has been violated. Frena supplied a product containing plaintiff's work. It doesn't matter whether HE made the copies. Bulletin board WAS a public display = group of people outside family Innocent infringer has still infringed (intent may get you off the hook for damages) Copying was so insignificant that it should be overlooked = problem is that each individual picture is individually copyrighted. Frena is full of shit. Court really understood he was lying. Who owns a copyright? - the author - an employer may own a copyright in a work if work was done by employee during employment unless there is an agreement in advance. Case #18: Community for Creative Non-Violence v. Reid (1989) Lengthy legislative history section "this reading finds support of acts legislative history (IIA)" Joint copyright CCNV wants to put up sculpture of homeless family during Christmas Reed is sculptor No-one mentions copyrighting Reid finished statue late CCNV wants to take statue on a tour to make $$ for homeless Reid refuses to return statue files for copyright CCNV files for copyright, sues to establish copyright This is a "work for hire" therefore ordered that statue be returned to CCNV, then court repeals statement Supreme Court takes case because they've seen disagreement in appellate courts Copyright Act 1776 = if work prepared by employee during employment, it's a "work for hire" - Work is commissioned as a contribution to a collective work - Commissioned as part of a motion picture, or part of video work - Commissioned s a translation - Commissioned as supplementary work - Commissioned as a compilation - Commissioned as an instructional text - Commissioned as a test, or answer material for a test - Commissioned as an atlas Work for hire only if the parties expressly agree (written) that the work is a work for hire Is Reid an employee or an independent contractor? Layout disagreements at appellate court level Copyright act focusses on relationship of parties In "work for hire" disputes, look at . . . Work prepared for employee or independent contractor? Does hiring party have right to control manner and means by which product created? Whose tools used? Where work being done? What is duration of relationship? Hiring party have right to assign additional projects? Extent of hired party's discretion over work hours? What role does hired party play in hiring assistants? Is this business of hiring party? Is hiring party in business? What is the benefit situation? Reid is determined an independent contractor CCNV is NOT author of work However, it's possible that CCNV may be a Joint Owner of copyright if district court finds that CCNV and Reid with intention that contributions be merged into a whole Joint Copyright = forces compromise, each has veto No written agreement September 29 = Copyrights (continued) Independent contractor owns copyright, but can assign it to you. Remedies for Copyright Infringement: Civil Remedies (most common) 1. Party who owns copyright ________ - tells infringer to stop posting pictures 2. Impoundment of allegedly infringement copies 3. Destruction of infringing copies 4. Damages a. Actual damages = plaintiff's losses as result of infringement +defendant's profits b. Statutory damages = defined by copyright can be chosen at option of copyright owner at any time during suit. Advantage is you don't have to prove losses ($500 $20,000). If establish infringement was willful, can be up to $100,000 Unless copyright registered before infringement, it is useless. There is a three month window of the publication of the work in which infringement is illegal. Criminal Remedies 1. Infringement must be willful = intentional violation of the known legal duty a. must prove intent and knowledge b. up to 5 years jail c. $250,000 fine d. if 10+ copies made of one or more works, in a 180 day period, with a retail value of over $2,500, and there was a requirement that criminal had to be for commercial gain (no longer) Most people pursue the civil side because it's easier. Copyright Act Defenses 1. Implied License = implied from conduct of owner of copyright a. Can arise by necessity (ie passing e-mail through network, photo on a website copies onto screen to view b. Custom and usage (customary for forward of e-mail) c. Sony v. Universal Studios = Sony provided equipment d. Assume that license is limited to what must be done 2. Fair Use a. Academics use this b. 4 factors 1. purpose and character of use (commercial not usually fair use, non-profit/educational) 2. nature of the work factual vs. fictional 3. amount and substantiality of the portion used 4. effect on potential market for the work Get permission to minimize your risk c. Parity = when court thinks it's funny 3. De minimus 4. Public Domain 5. First Sale Doctrine 6. Not Copyrightable Material October 1 = Copyrights (continued) Defenses against copyright infringement Fair Use - always analyzed on a case by case basis (see last class notes) - parody can be a form of fair use, where the focus is on the substantiality of the copying; the key is how much the defendant took in order to achieve the parody Case #19: Walt Disney Productions v. The Air Pirates (1978) - Disney alleges infringement of copyrights and a whole bunch of other stuff - they want injunctive relief (make them stop), destruction of infringing materials, damages, and attorneys fees - defendants say that this is a fair use - the defendants publish the AIR Pirates comic books using disney characters as members of a freethinking, drug taking counterculture - lower court ruled entirely on the side of disney - is it a fair use because its a parody - court affirms on infringement but reversed on everything else - Disney's characters are not formally copyrighted - air pirates say that characters are never copyrightable in and of themselves - court says yes they are, cites humphrey bogart case... - the characters are merely the vehicles for telling the story, not the story itself - but the court says that visual depicitons of characters are different, because they are easily differentiable - a comic book character is likely to contain some unique features - thus the warner bros humphrey bogart case is different, b/c youre just picturing characters in your head - benny case says that near copying can't be fair use - the real test for parody is whether the parodist has taken more of the original than necessary - disney says that a verbatim copying of the depictions alone satisfys requirement - defendants say that you must look at character as a whole - court says both positions have some merit, but they see no need to decide which of these views is right, because the defendants failed the berlin test (took more than needed) - court says that if they behaved like disney characters then that would be ok, but that wouldnt be a parody - "the copy of the graphic image seems to have no other purpose than to make the characters look as close to disney as possible" parodists don't get what they want, they get what they need, therefore there is no fair use - they took too much of the visual representation the court says that they don't think that the parody is funny, they're offended Fair Use Analysis Online - very similar to hard copy - Frena case had a fair use analysis in it Effect on the Market (component of fair use) - this is considered to be the most important factor by many courts - everyone is very concerned with money - how does court make it look like frena has an effect on the market - court says that if this goes unchecked, thousands and thousands of frenas could make an impact Case #20: Sega Enterprises, Ltd. v. Accolade, Inc. (1993) - source code vs. object code - source code of a computer program is the code that the programmer actually writes - that source code is then put through a compiler, and the compiler turns it into object code, which is what the computer reads (all the 1's and 0's) - it's not easy to go from the object code back to the source code, not impossible but far from easy - whenever software is distributed it is always in object code to prevent reverse engineering - what happened here is that Accolade decompiled the code for a bunch of Sega games - remember that 2 different source codes can produce the same object code (3+1=4, so does 2+2) - they figured out how to make games that would be compatible with genesis 3 system - so they created them - none of the code in the accolade games is derived directly from the Sega source code - thus their source code was not the same as sega's source code, but it had the same functionality - sega sues alleging trademark and copyright infringement - accolade - intermediate copying is not infringement, so if the result isnt infringement neither is copying to get there - accolade - copying and disassembly of object code is not infringement since it is the only way to get to the not-copyrighted ideas and functionalities - accolade - copyright act permits owners of software to make copies when it is essential to use the software - finally, accolade says it is a fair use - court shoots down first 3 arguments - intermediate copying is infringement, object code is protected, accolade went far beyond necessary use - however, court likes fair use argument - lower court had found for sega - court says no, we dont agree - purpose and character of the use - ultimate goal was commercial, but this was only an indirect effect of the copying, the purpose of the copying was only to determine how to make products compatible - the effect on the market really doesn't weigh agaist accolade, since they weren't copying specific games of sega's - accolade was adding new games to the videogame market - nature of the work - to the extent that a work is factual or functional, it may be copied; accolade copied the functional pieces of sega's program, so this factor weighs in accolade's favor - factor 3 does weigh against accolade (amount and substantiality) accolade copied the entire object code in order to disassemble but court says that where the ultimate goal of the copying is limited, this does not carry much weight court admits that decision sounds strange, but says it's because computer software is an unexplored field courts must keep in mind the public policy - to stimulate progress as this regards computer code - this means permitting copying of object code in order to get at source code Digital Millenium Copyright Act - it is illegal to circumvent any technological measure that a copyright holder has taken to protect copyrighted portions - people circumvent protections - e.g. software that can copy CD's - fair use is not a defense against violation of the DMCA October 3 = Copyrights (cont.) Copyrights - Defenses to Copyrights De minimus Copying - similar to 3rd element of fair use (amount and substantiality) - claim is that there was such a small and insignificant portion of the original that was copied that it should be overlooked - sometimes, not very much is needed to constitute substantiality Material was in the Public Domain - something is in the public domain when the copyright has expired - in the public domain if it has been abandoned - works that were created before 1978 that did not have a copyright notice affixed to them used to be in public domain, but not anymore - just because something doesnt say its copyrighted doesnt mean that it's up for grabs - you should assume when you look at some work that it's copyrighted unless you have some reason to believe it's not - copyrights are not abandoned unless the facts tell you that the owner has explicitly abandoned the copyright - in the public domain if it is work that was created by the federal government - also applies to work for hire for the federal government - by the law, the federal government holds no copyrights on any of its work or work for hire - the federal government may hold copyrights which have been assigned to it or left to it in bequest - publication by the government does not necessarily mean that it's not copyrighted - work paid for by government grants - copyright is specified in contract, may be property of gov't in which case public domain, or it may be property of the contractor - work created by a gov't employee in the course of employment or created by an independent contractor with whom there was a contract specifically stating that the copyright has been turned over to the government are the only works you can be sure are in the public domain - be careful because copyrights can be overlapping Case #21: Lone Ranger Television v. Program Radio Corporation (1984) - Lone Ranger corp owns several original scripts for radio shows of the lone ranger - by 1954 the lone ranger corp owned copyrights on all 15 scripts - lone ranger transferred all copyrgihts to a california company with the same name - in 1962 the lone ranger corp of california merged with the rather corporation and the copyrights were transferred - later, rather corporation spins off Lone Ranger Tv. Corp of America and passes copyrights to them - at this point all copyrights are valid - in 1979, Jim Lewis began the unlicensed leasing of lone ranger episodes to radio stations - the originals had a copyright notice at the end of them, lewis' copies also had the notice at the end - in 1982, Lone Ranger TV sued lewis and his distribution company - lower court awarded all kinds of damages to LRT - lewis appealed, saying that 1909 copyright act did not permit separate copyrights on sound recordings produced from scripts - when copyright act of 1976 passed, did not extend to sound recordings made before it was passed - therefore program TV never registered copyrights on the tapes, and therefore there are no copyrights - court says yes, the tapes are not copyrighted, but the underlying scripts are, and that the copyright holder's underlying right to produce derivative works is what has been infringed here First Sale Doctrine - when the copyright owner transfers a particular copy, the copyright owner's right to transfer that copy ends - online this is a problem, since transferring a copy of something usually means transferring a copy, not a discreet, specific copy - there was a proposal at one time that the first sale doctrine should not apply in cyberspace - never made it through congress Non-Copyrightable Nature of the work - facts are not copyrightable - ideas are not copyrightable - individual words, short phrases, titles, slogans, IP addresses, URL's, are all not copyrightable - the fact that these things are not copyrightable does not mean that they are not protected intellectual property - for example, they may be trademarks - there's more than one way to protect intellectual property - compilations of non-copyrightable facts may be copyrightable if there is some sort of unique organizational method used Case #22: RealNetworks v. Streambox (2000) - Real alleges that streambox has violated the DMCA by distributing the Streambox VCR and the Ripper - another product, the ferret, is designed to help consumers rip off a piece of Real Networks' software - Real Networks makes streaming software (realplayer) - streaming differs from downloading in that streamed data is recieved by the user but no copy is made on the user's system - real permits the content owners to make the content available to users while protecting the content - 2 protection methods - first is the secret handshake, that says that only people using RealNetworks RealPlayer can stream data from Real Servers second, content owner has the option to make it so that downloader to either keep a copy of the content or not the Streambox VCR mimics a realplayer so that the secret handshake and content switch don't work, so that you can actually copy the content onto your own computer the Streambox Ripper is a file-conversion application that allows conversion from Real Media format into MP3 format the Ripper operates on files that are already on the user's hard drive, so you download using vcr and then modify file format the Ferret is a plug-in that adds a button to the RealPlayer interface that allows users to search the streambox and real search engines are the same time real player's allegations are not copyright violations, they are allegations of a DMCA copyright violation the secret handshake and the copy switch are technological measures that allow the copyright owner to control access to its work, so circumventing DMCV VCR is primarily designed to circumvent Real Networks' protections, and this is its primary purpose, so it's in violation streambox tries to argue that it has legitimate uses, copying non-copyrighted materials streambox cites sony case court says no, because the sony decision did not involve an interpretation of the DMCA because it was not around streambox also argues that there is no violation because the copy switch did not effectively protect the data court says that this won't work because the copy switch is designed to prevent people from making perfect digital copyrights regarding the ripper, the court says that it has legitimate uses because it converts files from one format to another users who use the ferret plug-in are altering the Graphics User Interface real networks has enough for an injunction in this case, since without injunction real networks will lose advertising royalties every time users use streambox search engines Case #23: New York Times v. Tasini (2001) - decision from US Supreme Court - these are freelance writers - between 1990 and 1993 these people wrote a bunch of articles, registered copyrights - publishers registered a copyright in each periodical edition - the publishers engaged the authors as independent contractors but there is no written agreement saying anything about work for hire - publishers did not secure consent to place text of articles in online databases - users of the database can view, print, or download any article in the database - NYTimes gives the articles to other database sources as well - in December of 1993 the authors filed a copyright suit against NYTimes, all databases - court says that databases were shielded because they were publishing a revision of the collective work - second circuit court reversed, saying that the database things were not revisions - court says that copyright can be dueled (see above) - the 1976 copyright act said that the owner of a copyright in a collective work has only the privilege of distributing the work as a part of the collective work - here, the authors wrote articles for the publishers to print in certian periodicals, but they held the copyrights on each individual article lexis nexis, databases took some form of the authors' rights court must decide whether or not databases are a revision of the original work court notes that the articles are presented clear of any context that the original may have had court says that database is no more a revision of the original work than would be quoting a sonnet in a 400 page book alternatively, the articles could be thought of as individual articles the source tags suggest that the article was previously a part of the periodical, but not currently court says not comparable to microfilm, because in microfilm there is context unlike conversion from newsprint to microfilm, you are not transferring periodical intact the database owners say that, in theory, you could use the database to create the entire original collective work publishers claim that holding for the authors will be devastating because it will screw up historical research in the future Case #24: Greenberg v. National Geographic Society (2001) Work had not been registered recently Greenberg sues Intent was to permit republication Rules that it is a new product, not a revision Involvement of computer to deal with information changes things Society's statement itself says geographic is new work Society argues fair use Court says NO Use of photo is infringement Must have an index to make articles useful October 6 = Trade Secrets Trade Secrets Information that is secret and has economic value by virtue that it is kept secret (formulas, software, databases) Great advantage of trade secret = LAST FOREVER Contract/promise that is binding to secrecy In order to keep secret, must take certain steps If you are careless or don't take clear precautions, you may lose protection of trade secret Case #25: Coca-Cola Bottling Co., Ltd vs. Coca-Cola Company (1985) Same arrangements for coke extended to diet coke Changes in sweetener doesn't change contract Bottlers want discovery of formulas Coke says they are resisting discovery Bottlers file motion to compel "Does plaintiff's need for formulas outweigh defendant's need for trade secrets?" 1982 Coke introduced Diet Coke = adds for similarity of taste 1985 = Diet coke is 3rd selling soda Secret formula for new coke is 7x100 v. old 7x Coca-Cola Classic Resist discovery of trade secret, disclosure must be harmful, then burden shifts to party seeking discovery "Are formulas trade secrets?" Kept in security vault only 2 people in company shall know identity not disclosed Company elected to forgo producing in India because required disclosure of formula Formulas relevant and necessary for suit The secret ingredients may be most important Plaintiffs could use secret formulas Syrup for old and new coke Secret formulas necessary for cross examination Plaintiff's need outweighs defendant's need Court orders disclosure which Coke will never do Non-disclosure agreement If everyone knows secret is it still a trade secret Protects economic value as long as no one can USE secret, it is valuable Trade secrets can be lost through: 1. Independent discovery 2. Reverse engineering Don't buy software, you license it part of the agreement to not reverse engineer 3. Unrestricted disclosure of secret to people not bound to secrecy Posting a trade secret on web will destroy trade secret as long as people reading it are not aware that it is a trade secret Everybody who sees it is under obligation not to use it Problem is that it's easy to do this in cyberspace It is a gamble to use trade secrets because once trade secret is lost, you can't get a patent. Courts held that this would be unfairly extending protection Patents have to be applied for within one year anyway. Given life span of patent, why would you choose trade secrecy? With patented products, improvements on patents are separate patents Trade secret info can't have improvements made on it because the method is NOT discosed. Misappropriation = improper use of trade secret Damages = losses + profits by defendant Willful, liability can be twice damages Courts will try to protect Case #26: MAI Systems Corp. v. Peak Computer, Inc. (1993) Manufactures computers and designs software to run on computers Peak maintains computer systems for their clients (basic services/emergency maintenance) May be necessary for Peak technician to use it to service it Peak services computer must turn it on, infringing MAI's copyright because Peak is not customer Trade Secrecy 1. 2. 3. Is database a trade secret? YES They take steps to keep is a secret employees sign non-disclosure agreements It has commercial value competition could target sales efforts Did Peak misappropriate trade secret? No theft from database Former MAI employee used his knowledge of MAI database to solicit customers for Peak Misappropriation Announcing an employee joining is not solicitation Field info bulletins ARE trade secrets Was there misappropriation? (question of fact jury decides) Is software a trade secret? It CAN be, but plaintiff must prove existence of trade secret MAI says software CONTAINS trade secrets If software itself is NOT the trade secret, they must say what the trade secret is MAI messed up Reversed summary judgement ruling License forgot to say NOT disclose Peak won Case #27: DVD Copy Control Association v. Bunner (2001) Decryption DVD stuff exploded all over internet DVD brought action against Bunner Bunner had put a link on his website, not the actual code Licensed CSS code to people licensed not to do anything bad DCSS had been obtained by reverse engineering Person who decrypted MUST have reverse engineered properly Bunner should have known that posting links meant he was misusing Had to have understood it was a trade secret Cease and desist letter Bunner replied by phone indicating he would take down website We have to show that defendants had reason to know about wrongful origins of DCSS code Trade secret acquired by improper means Under obligation NOT to disclose trade secret California has adopted Uniform Trade Secrets Act Trade secret is misappropriated if acquired by improper means Or uses trade secret Violated trade secrets act because defendants knew Defendant has NO 1st amendment right to disclose trade secret Source code is protected Object code is not protected speech Copyright law has sources in constitution Person that exposes is liable for damages Bunner has 1st amendment right to say stuff Trade secret owner has right to go after for misappropriation October 8 = Trademarks Products have trademarks Services have servicemarks Trademarks can be: Words, phrases, pictures, symbols, numerals, letters, abbreviations, nicknames, colors, sounds, music, domain names, smells, buildings Go about getting a trademark 1. Select a mark 2. Ownership of mark begins when it is used (permitted to register under intent to use for 36 month interval) 3. Go to office of trademark to prove it is in use 4. Federal trademarks must be used in interstate commerce What rights does a trademark owner have? Right to use mark in particular market in particular times Gives customers a reliable source of information Gives owner a reputation Online advertising, product identification, services Pick a STRONG mark = hierarchy Fanciful marks = made up (Xerox) Arbitrary marks = word with meaning, not obviously related to product (Apple, Saturn) Suggestive mark = suggest feature of product (L'eggs) Descriptive marks = describe service (One-Hour Photo) it doesn't have to be correct Must acquire secondary meaning to be strong Generic words = not protected (soap, cellophane) For tangible goods = required to place mark directly on goods Digital goods = purely online use Important to present mark at time of purchase Use mark on name of file that is being downloaded Encode trademark in file name Registering a mark don't have to Cheap, easy Getting presumption of nationwide priority of mark US = first to use Europe = first to file Can sue in federal court for trademark infringement can get triple damages, attorney's fees, stop import of things Copyright law does not require notice, neither does trademark If you don't, you may not get any damages (innocent infringement case) = registered trademark McDonalds McSleep (win), McLube (loss) Only have to display mark first time user sees it Trademark lost when it becomes generic (ie, thermos, cellophane, aspirin, rollerblades, kleenex?) Worry when trademark is used as a verb xerox, rollerblade If you lose the mark, you can get it back I.e. Singer reclaimed mark when sewing machines stopped being associated with only that brand Fine line between popular use of mark and losing trademark Abandonment = discontinuation of use with intent not to resume use, also lost by uncontrolled licensing Renewal = must be done every 10 years Infringement of marks Is there a likelihood that consumers will be confused? If yes, then infringement. 1. Strength of mark 2. Similarity of infringing mark 3. Proximity of goods and services 4. Evidence of actual consumer confusion 5. Defendant's good or bad faith in using mark (take advantage of good reputation of copied mark) 6. Quality of product 7. Sophistication of buyers October 10 = Trademarks (continued) Case #28: Jordache Enterprises v. Hogg Wyld (1987) Jordache brings suit for jeans for larger women Jordache licensed a company to make jeans for larger women Which sold 33,000-60,000 pairs of jeans Defendant Hogg Wyld, now Oink Inc. No advertising Sold 1,000 pairs of jeans Lardache jeans made by Hogg Wyld Infringing trademark Names similar but not design Test: 1. Similarity of mark verbal translation, appearance 2. Intent in design 3. Relation in use 4. Degree of care to be exercised by consumers Court finds similarity cute but not similar Intent of defendant was parody, not an intent to pass of jeans as made by Jordache Amuse not confuse Benefit arises from association not confusion Court says no wrongful intent Defendant claims unknown usage People spending $50-60 for jeans will be taking a look at who made jeans No dilution because no evidence of confusion Parody rules out dilution No likelihood of injury to appelate Defendants don't raise parody defense You have a parody ONLY when court thinks it is funny!! October 13 = Trademarks (continued) Case #29: Lucas Film v. High Frontier (1985) Makers of Star Wars seeking to use phrase as strategic defense initiative Lucas Film does not like this use of "Star Wars" Court has no authority to provide relief Defendants have not affixed mark to goods or services, and they don't compete for services, therefore they are just communicating ideas and points of view and they are not infringing Not used as a trademark, so not trademark infringement Case #30: Playboy Enterprises, Inc. v. Netscape Communications Corp. (1999) Search engines charge Adds come up related to what searching for Keywords for adult entertainment adds Playboy is a key word Playboy says use as a key word violates trademark Defendant intend to divert users from Playboy sites to other adult entertainment sites Defendants say they are not using trademarks as trademark Plaintiff have to show used in commerce Playboy can't do this Don't know if people typing in playboy are looking for Playboy Enterprises Infringement requires likelihood of confusion "Initial interest confusion" This case not like Brookfield Billboard case Junior mark sufficiently like famous mark makes a mental association that has caused harm Playboy has not presented any evidence that there is tarnishment (improper association of marks) Playboy loses Case #31: Panavision International, L.P. v. Toeppen (1998) Illegal to be a cybersquat Toeppen famous for cybersquating Domain names must be registered Required applicant to warrant applicant not seeking to use mark in unlawful purpose Toeppen uses Panavision.com as his domain name Panavision refused to pay Toeppen $13,000 that he suggests Toeppen registers Panaflex.com Jurisdiction over Toeppen Did Toeppen make commercial use of the mark? Dilution is the lessening of the capacity of the A significant purpose of domain name is to represent what is on the site Therefore Toeppen does dilute meaning of trademark Toeppen loses October 15 = Legal Primer IV: The "Right of Privacy" Privacy She receives threatening letter of details of her life Consumers filled out forms Beverly Dennis begins class action suit Claim they are tricked by free coupons Junk mail targeted by interests (efficient) What does the existing law (privacy law) in he US have to say about this? Can she do anything? Privacy is the right to be free from government intrusion in certain areas of our lives. Protected by constitutional interpretation. Also the right to be free from intrusion of other individuals in our private lives. Protected primarily by common law series of torts (civil wrong other than breach of contract), judge made law Before 1890, no claims were made based on invasion of privacy Growing problem of excesses of press Court of Appeals is what most states consider highest court A case where woman's photo was used for advertisement, and she sued (Box Co. Case): No such thing as a right of privacy precedent doesn't exist legally Injury of a purely mental character Vast amount of litigation if there was such a right Hard to distinguish between public and private Fear of undue restriction of freedom of press Caused public outcry Next New York legislature banned use of photo as advertisement without written consent Legislature changes common law What is common law right of privacy? 4 torts relate to this question 1. Misappropriation of name or person's likeness for a defendant's benefit plaintiff's identity must be used use of name for a company no liability news use is ok (ie rob a bank) publication doesn't infringe your right of privacy have to get something out of using your identity 2. Unreasonable intrusion Intentional interference with another person's interest in solitude and seclusion either as to his or her person or private affairs. Can be physical (illegally searching shopping bags Persistent unwanted telephone calls Prying into bank account Illegal blood tests Has to have element of prying or intrusion Standard = intrusion has to be offensive to the reasonable person Intrusion must be into something that is private Surveillance cameras are in public not intruding private space Ex. At amusement park in 1964: grates cause skirts to fly up This is offensive to the reasonable person unreasonable intrusion Must analyze defendant's purpose 3. Public disclosure of private facts Differs from defamation what is said may be true, but can still be brought under this tort Disclosure must be shocking (question for the court) Matter that is made public must be highly offensive to reasonable person (not excessively sensitive) Not ok to reveal details of sexual relations nor to give a highly personal portrayal of someone's personal characteristics Liability deals with how society views things (updating life of mathematician vs. prostitute) Communicating private facts to newspaper makes communicator liable even if newspaper never published it EXCEPTIONS = news use, info regards "public figure" A person who by accomplishments, fame, or mode of living gives public a legitimate interest in his/her doings, affairs, characters has become a public person = a famous person Public people have much more limited right of privacy they have sought and consented to publicity can't complain when they get attention Press has a right to inform public about people who have become matters of public interest Reason common law feels it is fair to limit right of privacy of public people they are presumed to have access to the media to respond effectively There are instances where people become celebrities without wanting to Bombing at Olympics accused but not associated Thrust in spotlight 4. False light in the public eye First arose in 1916 (Byron) Someone uses your name without consent File a suit in plaintiff's name who hasn't warranted it Standard = would a reasonable person find this as placing a person in false light? *Privacy protects right to be left alone *Defamation protects reputation Word "privacy" does not appear in constitution created through Supreme Court rulings ECPA (electronic communications privacy act) extends 4th amendment rights to private sector Privacy act of 1974 Most laws are there to limit the powers of the government, more so than privacy of individuals ________ = Permits students and parents to challenge and examine school grades Schools receiving public funds can only disclose grades with permission Fair Credit Reporting Act Equal Credit Opportunity Act = info about gender, race religion, child bearing and birth control preferences Federal Right to Financial Privacy Act of 1978 Federal Cable Communications Policy Act = prohibits TV from tracking what people want Video Privacy Protection Act = prohibits videotape sales and disclosing info about customers Great difference between US and Europe Europe more strict with right to privacy Medical/Insurance Records No laws that actually protect this information it is owned by physician Some states protect Insurance records Employment records employer use not regulated by statutes October 17 = Legal Primer IV: The "Right of Privacy" (continued) Right of Privacy protected by 4th Amendment Case #32: Katz v. US (1976) Privacy of intangible property (information) Defendant transmitted wagering info by telephone from LA to Miami and Boston An electronic listening and recording device was attached to the outside of the public phone booth that the suspect made the calls from. "The right to privacy is the right to be let alone by other people." 4th amendment protects home Court of Appeals finds no protection because recorder did not physically enter space occupied The 4th amendment protects people, not places His right of privacy was violated by 4th Amendment Need for info outweighs need for privacy They didn't get a warrant Katz walks info US got was illegal Closed phone booth makes reasonable expectation of privacy Justice Black dissents Case #33: California v. Greenwood (1988) Decision: 4th Amendment not to prohibit warrantless search and seizure of garbage bags left for collection on curb outside home. Police get tip on drug trafficking Police investigator ordered search of bags picked up by trash collector to verify drug trafficking Get warrant Find cocaine Searched garbage again Found narcotics use Got warrant and arrested again Warrantless trash searches violate California law Supreme Court reverses this When do you have reasonable expectation of privacy? Show subjective expectation Court agrees subjective expectation is objectively reasonable Respondents may have had a subjective expectation, but it is not one that society is willing to accept as objectively reasonable Left garbage at curb for third party anytime conveyed to third party, you lose objective expectation of privacy Police did NOT need search warrant Cases are very fact dependent US v. Scott Court extended this holding to a case where people committing tax evasion had shredded documents IRS pasted them back together IRS was ok Case #34: Kyllo v. US (2001) Decision: Warrantless use of thermal imaging device aimed at private home from public street to detect relative amounts of heat within home held to constitute unlawful search within meaning of Federal Constitution's 4th Amendment US Dept of Interior suspected that a person was growing marijuana in their house so he had the house scanned with a thermal imaging device to see if there were high-intensity lamps inside that are used for growing weed. Agent found halide lamps and the suspect was indicted District court upheld validity of warrant Supreme Court said such search is protected by 4th Amendment The Katz Test: Whether the individual has an expectation of privacy that society is prepared to recognize as reasonable Tried for manufacturing marijuana Made no attempt to conceal heat no subjective expectation of privacy Heat imager did not show details of his life Supreme Court reverses visual surveillance was lawful What limits are there? Do changes in technology shrink your reasonable expectation of privacy? Technology in question is NOT in general public use Not looking into the house Court rejects off the wall v. through the wall Surveillance IS a search and is therefore not allowed without a warrant Dissent: an inference, not a search October 20 = Legal Primer IV: The "Right of Privacy" (continued) Copyrights, defamation, negligence, trade secrets, trademarks = possible fact pattern topics Case #35: Smith v. Maryland (1979) Constitute a search have to have a warrant McDunna is robbed in Baltimore Began receiving threatening phone calls from robber Phone company installed register at central office to track Smith's calls Smith calls McDunna Search warrant issued, he is arrested and indicted Police did not have warrant to install pen register He appeals Court of Appeals said there is no search, so no need for a warrant Supreme Court = it is a search Reasonable expectation of privacy Not a trespass on property Court says a pen register differs because it does not record the CONTENTS of the conversation Therefore no subjective right of privacy It is not private what numbers you dial No legitimate right of privacy to stuff voluntarily given to third parties Showed expectation by only using his home phone not believable Society does not recognize this as subjectively reasonable expectation Therefore no search Appeal = Katz extended 4th amendment to phone calls No legitimate expectation of privacy of phone numbers called Smith loses Can government w/o warrant record e-mails, hits on webpages? We''ll see. If police has a warrant, expectation doesn't matter. Case #36: US v. Poulsen (1994) District court says Poulsen had a reasonable expectation of privacy in locker Appeals reverse Poulsen rents storage unit Rent overdue, Menlo (owner) sends notice Manager entered unit and finds stolen goods Tapes contained air tasking orders where US will strike Charged with espionage Tyson is NOT a state actor, so constitutional right of 4th amendment does not apply Second preliminary lein notice Poulsen lost expectation of privacy when lein was placed on unit Poulsen loses Case #37: Parnell v. Booth Newspapers, Inc. (1983) Tort protection False light in public eye Parnell alleges torts (defamation, invasion of privacy, etc.) Publiched two articles on prostitution in MI One photo of Parnell falsely imputed as a prostitute Defense: Plaintiff is NOT recognizable, in public, so people can take pictures, protection of press Issue of fact must be decided by jury Matter in which photo was used placed her in a false light Identity is important Being in the public eye is not only matters how photo is used __________ won Case #38: McIntyre v. Ohio Elections Commission (1995) About right to be anonymous Whether an Ohio statute that prohibits distribution of anonymous campaign literature Law abridges freedom of speech? McIntyre hands out flyers about new school tax No false, misleading info in text Principle files claim against woman She sues Lower Court reversed commission because McIntyre did not mislead public Court of Appeals reinstates fine Goes to Supreme Court Court sites anonymous literary works Permissible to distribute hand bills Ohio statute is a limitation on free speech Anonymity is a shield from the tyranny of the majority Court: right may be abused when it reveals false info In general society gives more weight to free speech than prevention of giving out info McIntyre wins Anonymity in cyberspace Infringement of intellectual property rights Fraud Potential abuse Beverly Dennis = threatening letters from a guy in prison (got from info on coupons) She wants redress Class action suit filed Misappropriation, False Light Government not involved can't bring constitutional claim She GAVE info to third party, so she loses control over it Tried to make a new 5th tort of privacy Moral = don't give out private info October 24 = E-mail Case #39: O'Connor v. Ortega (1987) Search violated 4th amendment District Court granted O'Connor summary judgement Ortega DID have a reasonable expectation of privacy in his office (desk and file cabinets) Not shared, was his personal space for a long time No statements about keeping personal stuff out of office Government employees are protected by 4th amendment Court tries to define workplace (for analysis of expectation of privacy) Places within employer's control Not everything IN an office Operational realities of workplace may make expectation of privacy unreasonable A search is unreasonable without a warrant, but work-related searches by an employer are reasonable No evidentiary hearing Supreme Court cannot determine Goes back to District Court to evaluate reasonableness of inception and search Intrusion was by an employee still right of privacy protected Dissent Ortega HAD a reasonable expectation of privacy; plenty of time to get a warrant Not an inventory search Ortega not a fired employee Don't need a warrant when it is impractical (ie alcohol test) What expectations of privacy does an employee have? ortega was a chief of education at a hospital - dismissed in 1981 - in charge of training resident physicians - suspected of improprieties - specifically buying a computer with funds coerced from students - sexual harassment to employees - inappropriate disciplinary actions against a resident july 30, ortega takes a 2 week leave w/out pay, then placed on administrative leave, then they notify him that he's been dismissed team entered ortega's office during the investigation originally entered persuant to inventory of an office due to a terminated employee, only he hadn't been terminated yet items were taken to hurt the testimony of a female resident when she later testified on ortega's behalf also took billing documentation relating to ortega's private patients no formal inventory of the office's contents ever made ortega says that the search violated the 4th amendment case ultimately makes its way to the supreme court SC says government employees are protected by the 4th amendment, but remember only to the extent that they have an expectation of privacy that is considered reasonable by society since the expectation of privacy depends on the context, the court tries to define the workplace court says that the workpalace is those areas and items that are related to work and within the employer's control for example, hallways, cafeteria, desks, file cabients not necessarily luggage, briefcase, handbag intrusion not necessarily unreasonable if it's by a supervisor court says that distinciton may be necessary due to the great variety in work environments for example, some offices are shared, some are accessible to all employees here, court says ortega did have a reasonable expectation of privacy in his office no doubt that he had expectaiton of privacy in his desk and file cabinets however, the question remains as to whehter the search was reasonable balancing tests - government interests vs. 4th amendment rights of the individual generally a search conducted without consent is unreasonable if it is done without a warrant work-related searches without a warrant are often reasonable requiring a warrant would be unworkable in these instances public employers must get wide latitude to enter employees' offices government offices are provided to employees to facilitate the work of the agency court holds that public employer intrusions on the privacy interests of government employees should be judged on the standard of reasonable circumstances the search must be reasonable normally this is automatically assumed because the employer is only searching because he thinks the employee is bad therefore the SC cannot decide whehther the search satisfied the standad of reasonableness just defined, so case is remanded to determine justification for search and seizure Privacy in Email email is protected from unauthorized interception by the Communications Privacy Act what is interception Case #40: Steve Jackson Games, Inc. v. US Secret Services (1994) Secret Service thought legion of doom Secret Service ceased everything company had - including 162 unread e-mail This was a violation of disclosure of private electronic communications SS raided SJG thought they were on the case of the Legion of Doom, a notorious ring of hackers one of SJG employees was also operating a bulletin board on which some illicit thing was available SS seized all hardware - on hardware were 162 items of unread email - SS read all email and deleted it employee sues SS for being stupid seizing the bulletin board and accessing the employee email was a violaton of the ECPA prohibition of intercepting private communication dist court says that the SS's reading of the email was violation of the ECPA however, seizure of the email was not an interception because the SS's seizure of the contents were not congruent with the means of transport i.e. they didn't intercept the email, they took the emails after they had been recieved is the seizure of a computer on which there is email that has been sent to a private bulletin board but has not yet been read an interception? in this case the email was in electronic storage, and that was when congress wrote the ecpa they did not intend for it to apply to electronic storage therefore the email was not intercepted, it was being stored and so taking it was ok the court notes the different treatment given to congress by interceptions as opposed to disclosures 5th circuit affirms the lower court, the viewing was unauthorized seizure but not an interception of the email this is important because they had a warrant, which was enough to get the stored emails but not to intercept new ones Case #41: Konop v. Hawaiian Airlines, Inc. (2002) ECPA (one person's consent is enough) Implied consent = narrowly construed by judiciary No such thing as constructive implied consent Business Use exception = authorized to intercept messages Does not require notice States have laws addressing CA Right to public and private employees Employers usually liable for action of employees during employment Employer must act quickly when notified of sexual harassment E-mail can be used as evidence Other side can ask for e-mail Can't destroy it E-mail is NOT transitory like telephone conversation K felt that union was making too many concessions about something ran private bulletin board for HA employees you had to have a password to sign in to get access, as well as a non-disclosure agreement VP tries to sign up using an employee's name, discloses contents of the board to the union Knopf sued on all kinds of stuff, including violations of wiretap act (ECPA) court says that title 1 of the ECPA amended the wiretap act to prohibit the unauthorized access to electronic communications title 2 deals with stored communications civil damages are greater under the wiretap act than under the stored communications act court says that ECPA made some significant changes in the Wiretap act and its definitions, court says that intent of congress in ECPA was to elimiate distinctions between different electronic communications if anyone can look at something, it is not illegal to access it, but the website was def not in the public domain HA did not have consent to access the website electronic items on a bulletin board are in intermediate storage - still in transit until it is recieved and read by the recipient More ECPA Notes says that systems operators can access something if the systems operator is authorized to do so if the systems operator has the consent of the addressee if divulging is necessary to forward it if it has to do with a crime theoretically the ECPA applies to private employers 2 exceptions in the ECPA apparently authorize employer monitoring of email - prior consent exception - if one of the parties to the communication has consented to the monitoring then it's ok - consent can be explicit, or implied from circumstances (like a message that appears on screen when employees log into the network) - implied conesnt has been pretty narrowly viewed by the judiciary - there is no way to argue that employees should have known that monitoring was possible - business use exception - the entity that provides the e-communication service is authorized to intercept message - scope of business, and the subject must be of legal value to the business - ordinary course of business does not mean that employer can monitor anything that employee is curious about - how does the employer know the content of the message? ECPA has even broader exceptions for looking at stored information most states also have laws addressing unauthorized access to stored messages courts give employers great latitude California has explicitly recognized the right to privacy for private employees, but the courts have not really enforced this protection people tend to think that email is transitory but it's not having a proper email policy is very important for businesses October 27 = The "Right of Publicity" Right protected by common law Lanham Act = Federal Law Only recognized in 24 states (with common law statutes) 1st Amendment exception = news, political comedy, satire, in public interest Right of Publicity v. Free Expression What is the work's primary message? Can be permissible to use a person's identity if it is in the public interest Ex. Ad with photo of naked Stern Stern sues and loses because his candidacy for governor was newsworthy Person's estate can claim violation of right of publicity even after death Buyright Enterprises . Buttonmaster Plaintiffs = rock groups whose right of publicity is being infringed (photos copied) Right of Publicity gives person control of how to use name Test for violation: 1. Plaintiff's name or likeness has publicity value 2. Plaintiff has exploited that value 3. Defendant has exploited the value Rock stars win because their names have publicity value and defendant's selling of buttons is exploitation of value Carson v. Johnny Carson Defendant not using Carson or picture (likeness) Right of publicity protects a person's identity. Therefore, using a phrase that is associated with a person is violation Woody Allen v. National Video Inc. (1985) Commercial = Woody appears as a satisfied customer renting tapes Really wasn't him Woody makes claim under Lanham Act Lanham Act has avenue for broader claims than specifically Right of Publicity Likelihood of confusion for consumers? Will people be misled by what is "endorsed" by woody allen? He has built up a positive image, so his name has value No need for actual evidence of consumer confusion Even a sophisticated consumer can be fooled by ad Ad admits that they purposely made the person a look-a-like Court finds for Woody because commercial people purposely wanted to confuse Lanham Act available to people in every state, even those that don't protect right of publicity People are going to think that Woody is endorsing the Bette Midler v. Ford Motor Co. (1988) Ford wants to use 19 hit songs from the 70s because the audience is the audience that will buy the cars Can't get original stars to agree to let them use the songs to promote the cars Ford gets sound-a-likes for 10 songs Bette's hit song "Do you want to Dance?" was copied by Ford and recorded by someone else Defendant has NOT used name or likeness Protects against identity even voice Midler's song was a cover from hit in 50s Case more like Woody Allen than Carson? Midler probably would NOT have won using Lanham Act Doesn't think Midler is falsly endorsing Midler sued under right of publicity and won due to risk of confusion Nancy Sinatra v. Goodyear Goodyear used "These boots are made for walking" (her famous song) Not a sound-a-like case She didn't right the song and Goodyear had a license, so she had no case Case 42: Vanna White v. Samsung Electronics (1993) 9th Circuit Ad showed a robot dressed in a wig, gown and jewelry that resembled Vanna White and had her stand next to a wheel that looked like Wheel of Fortune She never gave permission or was paid She sues under both Lanham Act and Right of Publicity Parody defense will not work because main purpose is defendant's own commercial gain rather than humor Site Hustler Magazine where aim was to poke fun at LL Bean There is a difference between fun and making money though there are cases that oppose this District Court was wrong in dismissing her claim robot is NOT her likeness But Right of Publicity protects identity (Carson, Midler) Samsung calls it Vanna White ad Therefore Samsung infringed her right of publicity Set is not part of Vanna's identity even though it is what puts robot in context Lanham Act claim requires deception and there is none Forsee cataclysm right is being extended to EXTREMES (just dissent) Court ruled for Vanna White Comedy Free Productions v. Gary Satra CA statute grants right of publicity to dead people t-shirts with stooges on them without permission He made $75,000 off these shirts Lower court found for Stooges Enjoined Satra from further use of Stooges Supreme Court = only has to do with endorsement, not 1st Amendment does not protect false speech Done for financial gain, but not advertised Does not automatically lose protection by being done for profit Stooges developed public identities Court finds for 3 stooges October 29 = Legal Primer V: Constitutional Law Right of publicity may continue after death time varies by state 24 states recognize right To prove infringement 1. Plaintiff has to prove that name or likeness has publicity value 2. Plaintiff has exploited value 3. Defendant has exploited value Began to be interpreted as protecting a celebrity's identity Carson = phrase was enough to trigger claim Midler = sound-a-like claim Vanna White = robot on set, Court agreed with Vanna (heated dissent) 3 stooges v. artist selling t-shirts with drawings = tension, but if artist brings to depiction some creativity of expression, then first amendment trumps right of publicity??? Constitutional Law Refers to GOVERNMENT actions not employers, service providers, sports leagues Have to have state action Freedom of Speech = fundamental right gets strict scrutiny standard of review Standards of review: Strict scrutiny = law necessary for a compelling state interest. Gov has burden for determining if there is compelling interest. Must have discriminatory purpose and result Ie. Affirmative Action, requirements of citizenship Due process and equal protection Law that denies fundamental right to some people is equal protection Intermediate Scrutiny = Is the law substantially related to an important gov. interest? Burden of proof on gov. All gender-based employment benefits have been struck down Rational relationship review Challenger must prove law is not rationally related Fundamental Rights related to Privacy Marriage Buying contraceptives, using may not be fundamental right Abortion Procedural Laws ok unless affect pregnancy Laws that require parental/spousal notification, not consent Read/Enjoy obscenity in your home (not child pornography) Not to transport, import, or sell Raising children Live with close relatives No right to be free from investigation Vote one person, one vote No gerrymandering against minorities drawing boundaries Gerrymandering in favor of minorities is favored Political gerrymandering can violate constitution No cases in this Interstate travel = movement among states (living) Residency requirements for school, welfare benefits, voting Usually less than a year Important Terms when dealing with Constitution Vagueness = a law that gives no clear notice of what is prohibited is vague and therefore unconstitutional Overbreadth = A law that burdens substantially more speech that what is necessary to achieve interest is unconstitutional Freedom not to speak Subcategory of first amendment law: Regulating speech = depends on nature of regulation 1. Content-neutral Regulation = not based on what is being said (Gov can regulate time, place or manner of the speech) Laws are common and upheld (found constitutional) Must be neutral and applied even-handedly Must allow substantial opportunities for expression to take place at other times Drawings, music can be speech (expressions) Must be narrowly tailored to serve a significant (not as hard as compelling) state interest 2. Content-based Regulation = laws regulating speech based on what is being said Laws are usually unconstitutional Compelling gov interest Speech that is incitement not protected and can be regulated Intended to incite immediate violence is not constitutional Fighting Words = Hate Speech must be language that it is so assaultive that it triggers violent action Never been a statute that covers fighting words Therefore it is theoretically a kind of speech that can be regulated without violation Obscenity = if expression is patently offensive to average person in community Child Pornography = can be regulated Defamation = generally a tort issue, not statutory Commercial Speech = advertising must be permitted as long as it is truthful or informative (protected only to a limited degree) Pertains to illegal product Substantial (lower than significant) state interest (cigarettes, alcohol) Doctorate of public forum (place traditionally used for free speech ie. public sidewalks, parks) Only content-neutral regulation is allowed in a public forum Non-public forum = speech can be regulated in many ways Sometimes ok to use content-based regulatioin that is usually not allowed Limited Public Forum = cases almost always lose (ex. Railroad station between public and non-public is very hard to get across) Must have state action Government employees' free speech rights = same as rest of us Can't be hired/fire based on political party or philosophy or expression (Do not apply in high-ranking positions) Can be fired for incompetence Free speech is an analogy game when looking at internet Broadcasters for example are more regulated than publishers Is the Internet publishing or broadcasting? Broadcasters must air replies to editorials, not required for publishers Certain advertising is limited (tobacco, gambling) for broadcasters, not applicable to publishers Broadcasters are licensed by Federal Government through FCC licenses come with string attached Broadcasting is more of a problem uniquely accessible to children Reading requires a more affirmative act to watching TV Adult bookstores are regulated but they are less regulated than broadcasting Less regulated because you don't have to go there if you think it is offensive TV can be presented without ability to avoid Direct mail is less regulated than broadcasting You can throw it away You can ask to be removed from mailing lists Regarding children, parents usually control mail (nowadays not so true) Telephones less regulated than broadcasting Internet capable of voice transmission, so it should be regulated at least as much as telephone companies Telephones are less intrusive Don't have to answer the phone Dial-up porn can require payment and identification system that limits child access How regulate speech activity on internet?? Which medium relates to Internet??? Not licensed Not scarce commodity Spam can be ignored, deleted more intrusive though than direct mail WE DON'T KNOW! October 31 = The First Amendment in Cyberspace Case #43: Ward v. Rock Against Racism (1989) Assuming we have a right of free speech, how loudly may we speak? Sheep meadow designated as a quiet area Performances at Bandshell should be satisfactory but not too loud for neighbors "Rock Against Racism" refused to turn down volume at concert City refused to give them permission to use Bandshell because they wouldn't abide by sound limitations This is content-neutral regulation Court of Appeals says you can lower volume, pull plug Supreme Court says music is protected speech/expression under first amendment Bandshell is open to everybody so it is a public forum Time, place, and manner may be regulated only if minor regulation Must respect rights of neighbors Is it narrowly tailored to serve government interest? YES This is a significant but not compelling interest Supreme Court says Court of Appeals is wrong The city's guideline allows them to regulate content-neutral things like music volume City is allowed to achieve legitimate ends No restriction on any speech at a particular time no effect on quantity or content of music Guideline IS a valid, reasonable, and content-neutral regulation! Dissent says government gets too much control through result of this case It IS content regulation if it is ok for Simon and Garkfunkel and not for minor singers, isn't it? Case #44: FCC v. Pacifica Foundation (1978) Supreme Court decision Does FCC have power to regulate indecent but not obscene broadcast? WBAI = counter-culture alternative radio (anti-war, extreme leftist); completely funded by listeners Played "God Bless America" non-stop until they got enough money from listeners to play good stuff A man driving hears monologue and complains to FCC WBAI had a warning before broadcast that it may be inappropriate to some listeners FCC can revoke licenses power comes from 2 laws 1. Prohibits use of obscene use by radio program 2. Broadcasting IS regulated because children have unrestricted access to radio Scarcity of space that FCC licenses in public interest Term of indecent = patently offensive at times of the day when it is reasonable to assume children will be listening Decide scope of judicial review Discuss whether broadcast was indecent Does order violate first amendment? Is the order censorship? FCC cannot edit in advance, but it can review completed broadcast and take note of past braodcasts when it is time for license renewal Pacifica admits it was offensive but not indecent Does order violate first amendment? No the scope of our review does not make them answer this question Content-based is permitted if warranted The content here is not political and are of slight social value Dissent: everyone agrees material is not obscene so it is protected Indecent = obscene, so FCC had no power to act on them "In Pacifica, we upheld a declaratory order of the FCC, holding that the broadcast of a recording of a 12-minute monologue entitled "Filthy Words" that had previously been delivered to a live audience could have been subject to administrative sanctions." The monologue was considered indecent as a broadcast November 3 = The First Amendment in Cyberspace (continued) Case #45: Reno v. American Civil Liberties Union, et.al (1997) Decision: Communications Decency Act provisions which prohibit knowing transmission to minors of "indecent" or certain "patently offensive" communications held to abridge free speech protected by the First Amendment. CDA was one of 7 titles under Telecommunications Act Shortly after the President signed the Telecommunications Act into law, two separate actions with multiple plaintiffs challenged the constitutionality of the CDA First, 223(a) = the knowing transmission, by means of a telecommunications device, of "obscene or indecent" communications to any recipient under 18 years of age Second 223(d) = the knowing use of an interactive computer service to send to a specific person or persons under 18 years of age, or to display in a manner available to those under 18 communications that depict or describe, in terms "patently offensive" as measured by contemporary community standards, sexual or excretory activities or organs. In sum, it prohibits knowingly sending obscene material to person underage District Court ruled both unconstitutional Appeal and Supreme Court affirmed Both parts of act blatantly abridged freedom of speech because they were content-based restrictions It violated the Fifth Amendment because both acts are too vague No definitions of "indecent" and "patently offensive" in Communications Decency Act Tools (e-mail, chat rooms, mailing list services, etc.) constitute a unique medium known to its users as "cyberspace" There is no particular geographic location of this cyberspace, which is available to anyone, anywhere in the world with access to the Internet. This can cause certain problems. WWW is best-known category of communication on internet Navigating the web is relatively straight forward The web is thus comparable, from the reader's point of view, to both a vast library and a mall Much less like a library than it was Sexually-explicit material on the web is defined as texts, pictures and chat and "extends from the modestly titillating to the hardest-core" Some sexually explicit material originates in foreign countries Makes attempts to control behavior difficult Question of international use will drive one crazy (ie gambling from anywhere on a website in a legal country) There are filters that can block certain sites still not very good Evidence that a reasonable method will soon be available Advertising is based on the number of hits Why is congress so intent on preventing children from seeing this material? Don't want children becoming porn-addicts! Court addresses problem of age verification saying that there is no effective way to make age determination Can't use credit cards for noncommercial sites because not everyone has credit cards Pornography is protected speech just like music Obscenity is not protected speech If credit card or password were instated it still doesn't ensure that the viewer is a certain age 1996 act signed into law by Clinton = many suits brought 2 Sections of Communications Decency Act were taken out Unique nature of Internet aggravates vagueness of act (vagueness violates 5th Amendment because it wouldn't allow simple fairness in the law because it could be construed different ways.) As in Ginsberg case, there are significant differences that allow the FCC to regulate the broadcast, but not allow the CDA to exist in it's proposed form Ginsberg case recognized the governmental interest in protecting children from harmful materials. Because the availability of porn has not resticted the growth of the Internet, there is no need to restrict the indecent sites Dial-up Porn is more protected than broadcasting Internet is not an invasive media Government tries to say that CDA is not vague You can't know what is obscene until the court tells you Miller Test is much more narrowly defined Copa Case (?) Government may not limit discourse reaching a mailbox to what is allowed in a "sandbox" Case #46: Mainstream Loudoun v. Board of Trustees of the Loudoun County Library (1998) May a public library prohibit what people can look at on the Internet there? No email, no chat rooms, no pornography All computers put in view of library staff Library could call police on offenders Mainstream Loudoun says it is content-based regulation that infringes right to free expression The library blocked the Safer Sex Page, the Books for Gay and Lesbian Teens/Youth page, and the Renaissance Transgender Association page People wishing to view these sites can have a written request this is crap, not feasible and still restricts the viewer's rights Library claims immunity Not every library has every book based on budget and space. Must regulate what books they have in the library. This is not true on the Internet because budget and space is not a problem. Library admits to having a Policy that is content-based regulation of speech Plaintiff says library is limited public forum Court agrees Therefore it should be place and time regulated, not content Compelling state government interests: 1. Minimizing access to illegal pornography 2. Avoidance of creation of a sexually hostile environment Only proof that access to indecent material causes harm is Virginia library, which installed a privacy screens on its Internet terminals so that bystanders don't see material person is looking up By choosing to provide internet access, it must let people access the whole thing by first amendment Court says current system violates first amendment Loudoun pulled plug eventually came to a compromise about what can be accessed in the library Case #47: Ashcroft v. American Civil Liberties Union, et. al. (2002) (COPA Case) DECISION: Reliance of Child Online Protection Act (COPA) on community standards to identify material to be banned from World Wide Web as harmful to minors held not to make COPA facially overbroad for 1st Amendment purposes. COPA prohibits people from knowingly transferring potentially harmful information through the Web to minors. This includes any communication, picture, image, graphic image file, article, recording, writing, or other matter that is obscene. It said that the content must lack serious literary, artistic, political, or scientific value for minors. Before the Act went into effect, a group of people filed suit against Ashcroft under 1st Amendment. The Supreme Court ruled in favor of the Act saying that it did not restrict 1st Amendment rights. In concurrence, O'Connor noted that adoption of a national standard was necessary for reasonable regulation of Internet obscenity Awareness that pervasiveness of Internet has grown DISSENT: Because communities differ widely in their attitudes toward sex, the Court of Appeals was correct to conclude that applying community standards to the Internet would restrict a substantial amount of protected speech that would not be considered harmful to minors in many communities. Thomas Opinion: he compares COPA to CDA (Ashcroft Case to Reno Case) to show that COPA restricts much less and is better defined than the CDA. Referred to in COPA Case Miller Test for assessing whether material is obscene and thus unprotected by 1st Amendment (See Miller v. California) November 5 = Pornography Larry Peterman owed video rental store (Provo, Utah) Had thriving business until charged with selling obscene material People in Utah County were disproportionately large consumers of obscene material Therefore he was not violating community standards Business of selling sexual images is a $10 billion industry annually Biggest distributors of adult films with sexual content are famous (AT&T, Time Warner, etc) Half of all hotel guests buy adult videos Sex is one of main things on Internet that gets people to give up credit card numbers It is the biggest business on the Internet Think of the Internet as a small town where everything you do is known to everybody Why do we care what other people think of the videos we rent? Once people owned VCRs the barrier began to break down you could rent adult videos raising availability of anonymity There are nearly 10,000 adult movies made every year What are community standards? What is the test? Where do you draw the line? We have a right to look at porn. Case #48: Miller v. California (1973) Established threshold of pornography DECISION: 1. Obscene material is not protected by first amendment 2. Defined 4 parts of Miller Test a) Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appealed to a prurient interest b) Whether the work depicted or described, in a patently offensive way, sexual conduct specifically defined by the applicable state law c) Whether the work, taken as a whole, lacked serious literary, artistic, political or scientific value 3. Not need to be proven "utterly without redeeming value" 4. Must specifically define punishable social conduct 5. Obscenity was to be determined by applying "contemporary community standards" rather than "national standards" Apply contemporary community standards What is obscene? Miller had advertising campaign for adult books Accused of knowingly distributing obscene material Obscene material thrust on unwanting recipients Mode of dissemination Webster's definition of obscenity: Disgusting to senses Oxford Dictionary definition of obscenity: Offensive to senses; filthy; foul; loathsome Roth test Obscenity is not something with redeeming social importance The California statute approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts = 3 elements 1. Dominant theme of material taken as a whole appealed to a prurient interest in sex 2. Material was patently offensive because it affronted contemporary standards relating to the description or representation of sexual matters 3. Material was utterly without redeeming social value Supreme Court says Memoirs test was wrong Supreme Court says obscene material not protected by 1st Amendment Miller Test 1. Would the average person applying contemporary community standards find that the work taken as a whole appeals to the prurient (disagreeable) interest? 2. Does work depict or describe, in a patently offensive way, sexual conduct specifically defined by the applicable state law? 3. Does work taken as a whole lack serious literary, artistic, political, or scientific value? No need to prove that it is utterly without redeeming social value Court says sex and nudity may not be exhibited or sold without limit At a minimum, must have some value to warrant first amendment protection Example = medical texts Only those in hard-core pornography will be prosecuted "It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City." Court makes interesting point about national standards "The use of "national" standards, however, necessarily implies that materials found tolerable in some places, but not under the "national" criteria, will nevertheless be unavailable where they are acceptable. Thus, in terms of danger to free expression, the potential for suppression seems at least as great in the application of a single nationwide standard as in allowing distribution in accordance with local tastes, a point which Mr. Justice Harlan often emphasized. See Roth v. United States," Idea of national community standard Cyberspace has no geographical location what are community standards? Ex. NYC standards more liberal than Tennessee Standards of 12 people on jury determine result of case Court says sexual revolution brought adult videos as byproducts Civilized people do not allow unregulated access of heroine Must draw line (Miller Test) Obscene material is not protected speech Obscenity can be regulated by states Obscenity is to be determined by applying contemporary community standards, not national standards DISSENT: Douglas says obscenity is protected speech Obscene does not occur in constitution He suggests that if constitutional regulation of obscenity is done, there should be a new amendment Believes that offenders had no warning November 7 = Pornography (continued) Case #49: United States v. Thomas (1996) Interesting application of Miller Test in context of cyberspace Thomas and wife began operating Amateur Action Computer Bulletin Board System (AABBS) from home in Milpitas, CA Thomas converted pictures from sexually-explicit magazines into computer files called Graphic Interchange Format (GIF) files 14,000 GIF files on bulletin board Access to files limited to members Members got password after paid fee Age, address of members known Inspector downloads files and has videos delivered to him in TN Criminal statutes with real penalties Thomas says what he transported are not on list (GIF files are just 1s and 0s) Dirmeyer is a Postal Inspector that receives complaints and tests website Thomas had no knowledge that members would download and print the files Court says they ran a business that advertised that Thomas argued that they were prosecuted under the wrong statute He contests that Section 1465 does not expressly prohibit such behavior Court's duty is to figure out the intent of Congress in making laws therefore Section 1465 applies to this case Files never actually transmitted to TN by Thomas Right to possess obscene material in your home Miller Test must be used to govern activities in cyberspace Court says files transferred to TN and local standards there are used Court affirms Thomas' convictions and sentences Case #50: New York v. Ferber (1982) Child pornography is not protected speech DECISION: New York criminal statute prohibiting knowing promotion of sexual performances by children under 16, by distribution of material depicting such performances, held constitutional New York Court of Appeals had reversed New York Supreme Court decision saying that statute violated first amendment. US Supreme Court then reversed as final decision Ferber wrong Statute says: a person is guilty if they knowingly promote a sexual performance by a child under the age of 16 by distributing material that depicts such a performance. A person is guilty of the use of a child in sexual performance if knowing the character and content thereof he employs, authorizes or induces a child less than 16 to engage in sexual performance This is a class C felony under Article 263 of the Penal Law Ferber owner of adult bookstore in Manhattan sold 2 films to undercover policemen Jury applied community standards and found content in NY not obscene He is convicted of child pornography (under 16 years of age) Still illegal even though not obscene Court of Appeals is highest court in NY Court found statute underinclusive and overbroad The Supreme Court then said that the statute was not overbroad as forbidding the distribution of material with serious literary, scientific, or educational value Must have compelling interest it is evident that there is a compelling state interest to safeguard the physical and mental well-being of a minor To prevent the abuse of children who are made to engage in sexual conduct for commercial purposes Court of Appeals: Non-obscene adolescent sex can not be singled out 1. Psychological being is clearly a compelling interest (Ginsburg case, Pacifica case) 2. Obscenity is not relevant standard 3. Production is illegal 4. Value of child pornography is minimal 5. Content-based regulation is legal for obscene material and things that invoke violence NY statute describes that child pornography is not protected by first amendment November 10 = Pornography (continued) Case #51: Ashcroft v. Free Speech Coalition (2002) A provision of Child Pornography Prevention Act of 1996 (CPPA) prohibited the possession or distribution of "child pornography," which section 2556(8)(B) defined as including any visual depiction that is, or appears to be, of a minor engaging in sexually explicit conduct. This is also referred to as "virtual child pornography." Various plaintiffs brought suit against Attorney General and Dept. of Justice After District Court said provision was constitutional, Supreme Court granted certiorari Supreme Court state that 2556(8)(B) was overbroad and violative of First Amendment The content does not involve direct sexual abuse of children Some works may have literary or artistic value Supreme Court says that there is not a compelling interest to prohibit simulated child pornography since no children were harmed in its making This case is unlike Ferber because Ferber dealt with speech that itself was a record of sexual abuse This principle remains: The Government cannot ban speech fit for adults simply because it mught fall in the hands of children. It could still be considered obscene Miller Test = apparent age of participants can certainly be considered a factor if it goes counter to community standards People don't want anyone to possess child pornography = it's illegal Obscenity is different = can possess in your home This is a continuing saga. Advertising What is advertising? = no specific legal definition (like for torts and contract) Any action designed to attract public attention to a product, service, organization A webpage that provides info about a business certainly counts as advertising One difference is that on the net ads can be narrowcast = targeted at individuals that enter certain search terms rather than the public at large Advertising is speech and thus protected by first amendment Commercial speech can be and is regulated, and can even be prohibited if it is misleading, pertains to an illegal product, or if the regulation directly advances a substantial state/government interest (ex. Tobacco, alcohol, gambling ads) Networks will screen ads for offensiveness We don't know whether or how they will apply in context of internet Case #52: Bates v. State Bar of Arizona (1977) The case that opened doors for advertising by attorneys Two attorneys were licensed to practice law in Arizona and opened a law office aiming to provide legal services at modest fees Concluded that they could not survive without advertising Issue is that state of AZ restricts advertising by attorneys Attorneys couldn't advertise at all, but this case turned that around Does Sherman Act forbid this type of regulation (because it limits competition)? Supreme Placed an ad in newspaper even though they knew this was a violation of the rule State bar committee recommended that they be suspended for 6 months Bates and Ostein appeal to Supreme Court of AZ = they are in charge of regulating the bar They claim that the rule violated the Sherman Act and the 1st Amendment right State Supreme Court rejects this reasoning Restrictions had survived constitutional challenges US Supreme Court likes dissenting opinion of AZ Supreme Court Sherman Act is not violated by advertising law Appellants claims are against bar itself (see Goldfarb case) Goldfarb case held that 1 of Sherman Act was violated by the publication of a minimum-fee schedule by a county bar association and by its enforcement by the State Bar State has interest to regulate market to protect consumers AZ Supreme Court was wrong about 1st Amendment ruling Arguments against attorney advertising only deciding whether you can advertise prices Court says bankers and engineers advertise, but not undignified Originally arose as a rule of etiquette for lawyers Absence of ads seen as failure to reach out to community No attorney can advertise a fixed price for complicated suits Allow advertising and litigation will increase who cares? If someone is entitled to a legal action then it doesn't matter Bankruptcy attorneys have a network November 12 = Advertising (cont.) Advertising False advertising not protected by 1st Amendment Lanham Act covers commercial dealings - misleading ads are prohibited Misleading political ads are not covered by Lanham Act Environmental Groups all send out junk mail All directed at commercial activity Misleading statements must be publicly disseminated to be contested E-mail is broadly re-posted not clear what effect that has on analysis Regulators FTC (Federal Trade Commission) Act = unlawful to disseminate false advertising by commerce; Rules: 1. There can't be deception 2. Advertising must be substantiated 3. Ads have to be fair public has to be made aware of any potential hazards that arise from use of product FTC also has policies regarding specific practices (i.e. Pricing, energy consumption of home appliances) FDA (Federal Drug Administration) = regulates promotional material ATF = Bureau of Alcohol, Tobacco, and _____ FCC (Federal Communications Commission) = Regulate interstate and foreign communication Unclear what their role on the net is Dept. of Transportation (DOT) = regulates ads by airline, bus companies Most states have their own regulatory agencies Advertiser can avoid problems with all agencies Advertiser should tell whole truth, nothing but the truth - Can't falsely advertise - Can't display false statistics - Can't make misleading comparisons they must be accurate and real - Can't disparage someone else's product (must have real test results to prove) - Can't have misleading visual images or representations, - Can't omit material information (ex. annual fee for credit card must be stated clearly) - Implied claims cannot be misleading Sealand.com Case #53: Coca-Cola v. Tropicana Products, Inc. (2002) Tropicana has a TV ad of decathlon champion squeezing orange directly into Tropicana carton saying that it's the only orange juice that is not from concentrate Coke owns Minute Maid Coke says commercial misrepresents because Tropicana orange juice is pasteurized Appellate court wants to review after ruling by lower court Plaintiff has to establish personal injury by defendant's commercial claim These are direct competitors and award conjunctive relief Point to a survey show a not insubstantial number of consumers are confused Pasteurized (heated to 200 degrees C to kill bacteria, etc) Final Decision = overturned lower court ruling; thus Coke won Problems with advertising related to today's marketplace rules different among nations For example, product could even be illegal in some places Advertisers have to be careful to obtain permission to use IP of other people Protect own intellectual property rights Copyright issues (text, music in commercial) Trademark issues = use in comparative way such that use is not misleading or disparaging False endorsement Right of Publicity continues after death November 14 = Spam Case #54: Cyber Promotions vs. AOL (1996) Easton, PA district court CP claims that aol's screening software that allows users decide whehter or not they want to recieve junk e-mail is a violation of the Sherman Act court had already denied CP 1st claim of 1st amendment right to spam, because in order to have a constitutional claim you must have government action CP is now asking permission to file an amended complaint based on the sherman act and ask for injunctive relief CP says that AOL has obtained a monopoly in the market for direct marketing advertising materials to AOL subscribers court calls Cyber's complaint equally untennable as their 1st amendment claim examples of the kinds of ads they put out there include get rich quick, weight loss, phone sex, same old shit CP sends between 1.5 and 1.9 million pieces of spam to AOL members per day CP says that AOL does not automatically block its own unsolicited ads that it sends to subscribers as pop-up messages users can block these by entering an aol area called marketing preferences CP objects to the fact that AOL subscribers must choose to recieve CP ads but they must affirmatively choose not to recieve ads that are authorized by aol court says that all four factors should favor a preliminary injunction before one can be granted CP fails on the first one - they are not likely to win and they won't be irreperably harmed without the restraining order CP says that advertising to AOL members is an essential facility CP would have to show that control of the essential facility is by a monopolist, that they have been denied use, and that providing access to a competitor is in fact feasible court says AOL is not a monopolist because CP defenition of the relevant market is too narrow AOL accepts ads for a fee, CP does not want to pay the fee...its basically that simple, so tough shit for CP you cant send junk mail for free through AOL thus the temporary restraining order is denied Case #55: Compuserve vs. Cyberpromotions (1997) Here is not the right of the spammer to send the junkmail, as above, but rather the right of the ISP to prevent it Compuserve seeks an injunction to prevent CP from spamming E-mails sent to compuserve users is stored on compuserve computer systems Compuserve has recieved lots of complaints about the junk email Compuserve says that mass email places a significant burden on its equipment Compuserve notified CP that it was prohibited from using Compuserve equipment in this way, CP ignores them and turn up the volume Compuserve used filter software to filter out mail from CP website, CP responded by modifying its equipment, basically its a software war CP says that it has a right to continue to send the messages to Compuserve subscribers Compuserve alleges trespass to chattels (brilliant) Means that someone is trespassing on your property in a way that is sufficient to cause a decrease in value to you Never been applied in this context Court first addresses whether to extend restraining order CP had a Compuserve account that it used to look official and spam Court says, in that case if you've given up the CS account, extending the restraining order won't be a burden Unfortunately, CP can make the messages look like you sent them from a Compuserve account, make false references to Compuserve Thus restraining order is extended Compuserve alleges that Cyberpromotions is trespassing to an extent that it can be prosecuted under this tort Court looks to the restatement of torts (summary of the state of the law at any given moment) Court says that trespass to chattels may be done by intentionally using or interfering with the personal property of another, court says that electronic signals are sufficient to be considered trespassing CP says that the restatement says that trespass to chattels requires the possession to be made totally useless, but court says no Liability can apply as long as the chattel is simply impaired The burden placed on the equipment impairs Compuserve's equipment It's true that the owner of personal property can create a privilege by permitting use But CS has said that CP cannot use the property to transmit junk mail CP argues that connecting to the internet invites users to spend time on CS property Court says that businesses can invite the public to enter but later revoke access to that property Besides, CS explicitly denies unauthorized access to non-users CP argues that it has a 1st amendment right to send the email because CS has assumed the role of postmaster and thus has become a state actor subject to the 1st amendment CP has shown no evidence to support this claim Court cites in fact the CP vs. AOL case saying that CS is entitled to restrict access to its own property CS has shown that it may win on the merits, that it will suffer irreparable harm if the restraining order is not given, that CP will not be irreparably harmed by restraining order, and that the public good will be advanced by granting the injunction Jurisdiction Two types of jurisdiction are required before a court can hear a case 1. subject matter jurisdiction subject matter jurisdiction is the power to decide the particular type of dispute 2. personal jurisdiction Only state courts have subject matter jurisdiction over civil suits between citizens of the same state That being the case, every single state has at least 1 court of what is called general jurisdiction That means that that court can hear any kind of claim between any parties, unless the court is specifically prohibited from hearing specific kinds of cases Federal courts are all courts of limited jurisdiction - in other words, federal courts can only hear cases as they are specifically authorized to do so by the statutes that created the court The outer bounds of federal court jurisdiction are set by the constitution Congress can limit federal courts to less subject matter jurisdiction but cannot grant more For our purposes, we are going to deal with cases where the fed courts have 2 types of subject matter jurisdiction 1. diversity jurisdiction 2. federal question jurisdiction What is diversity jurisdiction? When does a federal court have subject matter jurisdiction based on diversity jurisdiction? - Suit between citizens of different states - Suit between citizen of a state and a subject of a foreign country - In 1977 Ivana Trump sued Italian yacht manufacturers because she didn't like the yacht, that's federal court diversity jurisdiction - Suit between states - Diversity jurisdiction whenever the US is part of the suit - Amount in controversy must be greater than $75,000 - However, it does not matter what the recovery is - Exclusions include divorces, alimony, child custody, probates What is a state citizen for the purposes of determining diversity jurisdiction - Citizen is either a citizen or an alien permanent resident who is domiciled in a state Domicile is the place where a person has established a residence with no present intention of leaving for the foreseeable future Corporations, unlike you, can have multiple citizenships for determining diversity They can be citizens of multiple states, but they are citizens of the states in which they are incorporated and the state in which the company has its principle place of business Basically where are corporate headquarters Remember that you must have complete diversity - in other words in cases with multiple plaintiffs or defendants, and if any one plaintiff is citizen of the same state as any one defendant, you don't have complete diversity or federal subject matter jurisdiction November 17 = Legal Primer VI: Jurisdiction Before a court can hear a case Subject matter jurisdiction Power to decide particular type of dispute Only state courts have this when dealing with a civil suit of two people in same state Every state has at least one court of general jurisdiction between any kinds of parties Most states have specialized courts Federal courts = no general jurisdiction Only specialized jurisdiction federal courts Set by constitution (Article three Section 2 of constitution) Federal courts have subject matter jurisdiction 1. Diversity Jurisdiction One suit between two states State vs. foreign country Dispute between multiple states Anything involving the federal government (ie. Smith v. US) And amount has to be at least $75,000 (amount in controversy is what matters) no one bothers if less A citizen is a member of a state where they are domiciled (residency where no present intention of leaving in foreseeable future) Corporations have multiple citizenships for determining diversity Citizens in states where they are incorporated Every corporation has principle state (place of business = where corporate headquarters is) of corporation If all production done in one state, then that's where the principle corporation is Be sure you have COMPLETE diversity - If any one plaintiff is in same state as any one defendant, you don't have diversity The question is whether or not the plaintiff's claim depend on federal law? It does if federal law creates the cause of action (ex. Case brought under Lanham Act) Federal court has subject matter jurisdiction In a suit relying on diversity jurisdiction, the defendant can remove the case to federal court (ex. CT citizen sues MA citizen in CT for something the defendant can remove from the state court in CT to a federal court in CT whose district encompasses that of state court where suit was brought Federal court has jurisdiction) Historically federal courts were less biased, out-of-state defendant is more likely to get a fair shake in federal court than state (You would not want to be a NY defendant in a MA court) There are still tensions between states Sometimes rules favor being in federal court If there are multiple defendants, they have to agree to move to federal court 2. Personal Jurisdiction = power to enforce decision over defendant Resident is different than citizen (citizen for subject matter, residence for personal) Residents of a state are subject to suit in that state's court for any type of claim Corporations can be residents in states they are incorporated and where they have principle, and any state where they are doing business Non-residents of a state are subject to a state's jurisdiction if they have "submitted themselves to the state's jurisdiction by some act" Usually whether or not this happens is defined by state's Long-Arm Statute = says how far the state says it can reach what are types of things that they are going to assert personal jurisdiction? They are limited by constitutional due process clause Minimal Contacts Rule = In order to be consitutionally acceptabel, have to have minimum contacts with the state Application in cyberspace has been hotly litigated International Shoe Case = every lawyer knows this case Case #56: International Shoe v State of Washington. Appeal State Unemployment Compensation Activities . . . enforce obligations arising from activities One of the areas in which the principle question is Is it fair to tell someone that they have to come here to be sued? You can consider people present when they Shoe said that they are not present in state WA wanted statute enforced International Shoe says not bound because they have no offices and make no contracts, don't maintain any goods in WA, no intra-state shipping they do employ 13 salesmen who take orders within WA shoes still come from out-of-state Supreme Court of WA says that orders is sufficient to say that they are doing business in WA We are not residents in order to satisfy personal jurisdiction (says Shoe) Due process for personal jurisdiction must have limited contacts in state "traditional notions of fair play" = if reasonable, then due process has been achieved Criteria establishing due process cannot be mechanical It is not unreasonable for the company Plaintiff's activities in WA were systematic and continuous, that resulted in a large volume of business obligation sued upon has right to bring suit in state of WA State may maintain present suit in persona Justice Black concurs = business carried within boundaries applies to employees who sell First look at Long-Arm Statute What is activity going on is it reasonable to impose personal jurisdiction Jurisdiction is all about fairness it has evolved over time Inconvenience used to be a bigger factor not as much today due to technology/transportation First Scenario DE corporation, principle place of business in NY Doing business in NY Citizen for diversity purposes in DE and NY Resident for purposes of personal jurisdiction in DE and NY Plaintiff would like to sue in NY Will NY state court have subject matter jurisdiction? YES Does state court have personal jurisdiction? YES because defendant does business in state and is a resident Can defendant remove from NY? NO because they are both citizens of same state and only NY can hear case Second Scenario DE doing business in NY Sued by New Jersey resident NJ resident's first choice is NJ state court Does state court have subject matter jurisdiction? YES Does state court have personal jurisdiction? YES because company does business in NJ and therefore is a resident, however, defendant's principle place of business is NY Can move to federal court because they are not a citizen of NJ for purposes of diversity jurisdiction Third Scenario Defendant corporation does not do business in NJ and sued by resident of NJ Suit brought to NJ state court Does state court have subject matter jurisdiction? YES Does state court have personal jurisdiction? YES company does business in NJ and therefore is a resident, Defendant could remove to federal court Not a resident of NJ, so plaintiff can't make defendant go to NJ for court Plaintiff must sue some pace that has personal jurisdiction over defendant Plaintiff will probably sue in federal court in NY because as out-of-state party in NY, there is least bias November 19 = Jurisdiction in Cyberspace Plaintiff (Company A) Incorporated. MA PPB MA Alleges Breach of Contract Sues in MA State Court Defendant (Company B) Inc. DE PPB CT Does Business CT, VT, RI, MA, NH, ME What state will this case end up in (where is it most likely to be heard)? Subject Matter Jurisdiction yes, in MA court Personal Jurisdiction Defendant only does business in MA that is enough to make them a resident and MA State Court has personal jurisdiction Can out-of-state Company B move the case out of state court in MA? In order to remove from MA State Court, prove subject matter jurisdiction based on diversity Company A is incorporated and PPB in MA = citizen Company B, for purposes of citizenship, only where incorporated and PPB Not a citizen of MA, so defendant CAN remove to federal court in MA Federal Court will have subject matter jurisdiction and personal jurisdiction This case would most likely be heard in federal court in MA. If defendant does not do business in MA, there is no personal jurisdiction in MA (Company B not a resident) and Company A would not be able to bring suit in MA have to go to another state B is in Most likely federal court in CT or DE Long-Arm Statutes Case #57: Minnesota v. Granite Gates Resorts, Inc. (1997) Online Wagering Service = operating from Belize and legal to use service in US Website invited users to be on list Terms and Conditions presented by a link (not a good thing) Had to agree that any suit against Wagernet would be in Belize, but the company can come get users in their hometowns October 1995, investigator applies to Wagernet Can't sue in Minnesota Minnesota District Court denied Only placed info on the net, didn't send it to Minnesota Granite Gate argues non-resident defendant Court defines 5 factors to address: 1. Quantity of contracts 2. Nature and quality of contacts Granite Gate's website can be viewed as advertisement 3. Connection between cause of action and contacts 4. State's interest in providing a forum 5. Convenience Court agrees with Inset Systems Case = extreme outlier of satisfying minimal contacts By advertising on net, court holds that they have subjected themselves to personal jurisdiction in MN Commission of a tort act (ie. Negligence) Case #58: California Software Incorporated v. Reliability Research, Inc. (1986) Developer of software was using Reliability stuff California sues in federal court in CA They know that they will remove to Federal Court so they go straight there Subject Jurisdiction = there is diversity Personal Jurisdiction = sufficient contacts 1. Non-resident defendant must do some act or consummate some transaction within the form or perform some act by which a purposefully avails himself for the purpose of conducting activities 2. Claim must be one that arises out of or results from the contacts or else it is irrelevant 3. Must be reasonable Allegation is that defendants acted intentionally, not negligently Vastly broadens potential for personal jurisdiction Court points out there is no personal jurisdiction over Martin in CT (officer of company) White is potentially personally liable November 21 = Jurisdiction in Cyberspace (continued) Case #59: Compuserve v. Patterson (1996) Ohio Long-Arm Statute specifies doing business in Ohio Personal Jurisdiction in OH He entered into a written contract with Compuserve Is it fair to impose personal jurisdiction over Patterson? Yes Electronic contacts satisfy personal jurisdiction Case #60: Benususan Restaurant Corp. v. King (1997) Local entertainment available over net Bluenote club in Missouri confused with Bluenote in New York Benususan Even if a use is confused about relationship of Missouri club to New York club, that confusion would have occurred in Missouri (??) No personal jurisdiction Missouri has not done business in NY District Court Decision: Just having website that is accessible in NY is not enough Case #61: Cody v. Ward (1997) Cody invested $200,000 in a company m Long-Arm Statute same as in NY, but interpreted differently Case #62: Inset Systems, Inc. v. Instruction Set, Inc. (1996) Inset Systems Filed for registration of trademark "Inset" Instruction Set Case #63: Cybersell, Inc. (AZ) v. Cybersell, Inc. (FL) (1997) Web advertising (SPAM) Originators of SPAM AZ company applied for servicemark of Cybersell in August 1994, approved October 1995 Operated website Cybersell.com 1994-1995 Summer 1995 while website was down father and son started FL company, who changed name and logos 1996 Says they have to sue in FL, not AZ AZ has long-arm statute that follows constitution 1. 2. Exercise in jurisdiction must be reasonable 3. Internet should not be enough Court implies that there are 2 appellate court decision (Compuserve v. Patterson, Benususan this is not true) Patterson = if you enter into a contract with someone of another sate, you are going to be under personal jurisdiction in that foreign state Interactive website decisions FL activity of using website lack of personal jurisdiction in AZ The Court strongly implied that 2nd circuit endorsed this decision (from Benususan case), which it didn't December 3 = Legal Primer VII: Criminal Law and Procedure Question of jurisdiction The state must be Must be an act or an omission = a legal duty to act (can arise from a statute, contract, relationship) You have a duty to act if your own conduct put other person in danger Different Mental States: 1. specific intent applies to many different crimes (inchoate = incomplete) first degree murder felony against property (robbery, burglary) must have desire and awareness that result 2. malice only applies in a couple instances second-degree murder arson includes reckless conduct 3. general intent everything else except strict liability, which do not require intent (i.e. speeding) Accomplices are liable for a crime and all other foreseeable crimes that arise in performing the crime Just being present is not enough (must give advise, etc.) Popular Crimes: Common Law Elements uncompleted crimes 1. solicitation = asking someone to commit a crime (lasts until the point when they agree, then it's conspiracy) 2. conspiracy = must be agreement, intentional; intent to pursue unlawful objective; each conspirator is liable for each and all of co-conspirator's crimes (must be foreseeable); understanding can be enough; must be some overt act that can be pointed to in grounding the conspiracy (sitting around in a room and conspiring to rob a bank is not a criminal conspiracy); can withdraw from conspiracy still liable for being part of conspiracy, but not liable for crimes done while crime is committee 3. attempted crimes = not merely intending to break into someone's computer, but must use unauthorized password take a step to show intent property crimes 1. larceny = wrongful taking; must have intention under common law (i.e. picking a pocket) 2. embezzlement = embezzler always has lawful possession of the stuff, but wrongful conversion (stealing) 3. false pretenses = distinction is that the person engages false pretender gets title, not just false possession 4. robbery = larceny + assault (apprehension of immediate battery) must be a taking of something by force (yanking off someone's necklace) 5. extortion = blackmail taking of someone's property by threat of future harm 6. burglary = breaking and entering Defenses: 1. insanity = very popular; dangerous; various tests/definitions MacNaughton Test: someone is criminally insane if the person lacked the ability to know the wrongfulness of his or her actions, or understand the nature or quality of those actions (other tests include syndromes); Durum Test psychology based 2. intoxication voluntary = self-induced intoxication defense only to specific intent crimes involuntary = someone forces you or sneaks something into a drink this is a form of insanity and valid to all crimes, even strict liability 3. infancy = just a kid; children under the age of 7 not considered to be liable for their criminal conduct; under age of 14, there's a rebunnable presumption of no liability defendant not liable unless court establishes good reason 4. self-defense = he drew first; can use non-deadly force if you believe they are going to hurt you; deadly force is ok if you can prove you reasonably believed deadly forced was about to be used on you; retreat is preferred (don't have to run out of your house, if you are the police; no deadly-force solely to defend property 5. necessity = defense to all except homicides; threat from a physical situation (cannibalism in wilderness) duress = threat by a human being 6. consent = not applicable to homicide 7. entrapment = I was set up Two models people use for crime control: 1. Truth is primary criterion to assess if rules are doing job is the system working? How many guilty people are being convicted if guilty aren't convicted, there's something wrong with system 2. Rather let someone go free than restrict our own rights in the future i.e. police patrolling in upper Manhattan, pulled over a car, ruled there was no probable cause so they couldn't get car in trouble for having drugs blatantly clear they were guilty, but we are willing to insist that rules are followed to protect our own rights First thing is investigation. Then if there seems to be sufficient reason, there is an arrest. Using a warrant is preferable. Double jeopardy not supposed to be tried for the same crime twice. You can be tried by a different sovereign (US and state are different). December 5 = Criminal Law and Procedure in Cyberspace Warrants can only be issued if there is probable cause or particularity in the description of the place to be searched What are they looking for, what do they want to seize? Limits ability to search without restrictions. Exclusionary Rule = evidence that is obtained in violation of 4th amendment is excluded, not admissible in court. Limitations: doesn't apply to conduct of grand jury for indictment; only available in criminal proceedings; must be a major violation Good faith defense to exclusionary rule; exception also if police rely on statute that is later declared to be unconstitutional evidence won't be excluded Good faith exclusion if relying on defective warrant Good faith does not work if affidavit used to get warrant does not have probable cause Can't have a warrant that is not particular No good faith exception if magistrate has abandoned her judicial role (usually also the cherif) Doctrine of fruit of poisonous tree - all subsequent evidence is invalid Federal Computer Fraud and Abuse Act State laws cover personal computers Alteration or destruction of data is criminal Denial of someone else's access Case #64: State of Ohio v. Lebron (1994) Unauthorized access Brother of Lebron was a drug dealer Lebron Case #65: US v. Riggs (1990) Case #66: US v. Sablan (1995) ...
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This note was uploaded on 12/02/2007 for the course CPSC 180 taught by Professor Robertdunne during the Spring '06 term at Yale.

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