Fall 2005 Cyberlaw Syllabus

It’s hard to believe that this is going to be my 11th year teaching Cyberlaw. I’ve posted my newest syllabus for Fall 2005. The material I’ve assigned for the first time this year:

Copyright

* BMG v. Gonzalez (confirming direct liability for file sharers)

* Grokster Supreme Court ruling

* 17 USC 506(a) (showing the additions from the ART Act)

* Corbis v. Amazon (an extremely lucid opinion applying the 512 safe harbors–this is an overlooked gem of a case from a pedagogical standpoint)

Trademark

* Bosley v. Kremer (the case nicely encapsulates several facets of a gripe site lawsuit, including infringement, ACPA and SLAPP)

Spam

* My article on the harms caused by spam

* 16 CFR 316 (the various regulations promulgated under CAN-SPAM)

* FTC v. Phoenix Avatar (the case describes in accessible terms the complex evidentiary and financial trail that anti-spam enforcers must unravel)

Adware/Spyware

* The Congressional Research Service report

* 1-800 Contacts v. WhenU 2nd Circuit ruling

* Utah Spyware Control Act (amended)

* My CNET editorial on adware advertiser liability

ALthough this may seem like a lot of changes, it’s noticeably less than I’ve historically made. I think this lower rate-of-change reflects that we are slowly but undeniably developing a body of “classic” cyberlaw cases that are both important precedent and good teaching cases, such as Specht, Hamidi, Reno v. ACLU and Zeran. I also have my “hidden favorites” that aren’t especially important cases but still fun to teach, like the Noah, Promatek and Pharmatrak cases.

I did struggle a little with organizing the trademark cases. I don’t think there’s a single definitive teaching case for trademarks yet that nicely illustrates infringement (and applicable defenses), dilution and ACPA. Instead, I have five trademark cases that each make important but limited points:

* Bosley–good illustration of a gripe site lawsuit, but holding is fairly limited (narrow illustration of what constitutes use in commerce)

* Promatek–great illustration of initial interest confusion (especially with the bell-ringing line), metatags, how the parties can lose sight of the big picture and how judges cut corners, but hardly a traditional trademark infringement analysis

* Lockheed v. NSI–best teaching case for contributory infringement, but effectively mooted by ACPA’s safe harbor for registrars

* Playboy v. Netscape–important case on keyword usage and search engines, but the case is extremely disorganized and error-filled

* 1-800 Contacts–important discussion on use in commerce and user control over their software, but very fact-specific

Worse, these five cases are spread out over the sections on trademarks, search engines and adware/spyware. I’d welcome any suggestions on other ways to think about and organize the trademark materials.

Meanwhile, if you want a blast from the past, consider my syllabus from Spring 1996. I taught this course shortly following Netscape going public, before the Communications Decency Act (it passed during the semester) and the resulting litigation, before the Zs (Zippo, Zeran and Zuccarini), and before the DMCA. Back then, “spam” meant Canter & Siegel’s inappropriate postings in USENET, “crypto” was one of the top items on EFF’s agenda, and the words “adware” and “spyware” had not yet been coined.

As a sign of the changes since then, I continue to teach precisely ZERO of the materials I assigned. However, a small number of the materials would still be useful today; for example, I do still teach John Perry Barlow’s essay in my copyright seminar. Of course, some things never change. I taught a Playboy case in 1996, and I teach a Playboy case today (surprisingly, only 1). I suspect some Playboy case will be part of every Cyberlaw packet forevermore.

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