2007 Cyberspace Law Syllabus

By Eric Goldman

I’ve posted my 2007 Cyberlaw syllabus. Unlike the past few years, which were a little slow cyberlaw-wise, the past 12 months saw a lot of important developments. Let me recap some of changes I made to my reader reflecting these developments:

Additions

Copyright: I added the Cablevision case (after editing out some of the mind-numbing description of cable technology), which provides an interesting exposition on how the source of bits matters in copyright law (we’ll reinforce that message with the Amazon.com “server test”). I companioned the Cablevision with the Field case to show a very different philosophy about “volitional” server activity, so I’ll ask the students to see if they can reconcile the two cases.

I struggled with how to handle the Ninth Circuit’s troika of Perfect 10 opinions. The opinions are long, complicated and irresolute, but it’s hard to discuss one without discussing the other two. I decided to include all three but I don’t feel great about that decision, given that it takes 115 pages (about 1/6 of my total reader) to work through the three cases, and I’m not sure students will come away any smarter about Ninth Circuit online copyright law after reading all three.

Trademark. I substituted the FragranceNet case for the 1-800 Contacts v. WhenU case. The 1-800 Contacts case remains a very important keyword law precedent, but as a teaching case it was just so-so. The adware subject matter increased the complexity, and it punted on the most interesting question of search engine liability. However, most of the other recent keyword law cases have been even less teachable. Fortunately, the FragranceNet case does a pretty job of recapping the 1-800 Contacts case as well as other recent decisions, and it frames the policy issues nicely. I’ve paired it with the Playboy v. Netscape case, which will make a good compare/contrast. However, if the Second Circuit gets off its duff, I’d be thrilled to substitute in the court’s opinion in the Rescuecom appeal. (I’d be even more thrilled if the court reaches the “right” result!).

I also updated my materials to reflect the Trademark Dilution Revision Act.

230. I continue to stick by the seminal Zeran case, which remains both powerful precedent and a colorful teaching case. However, this year I added the Ninth Circuit hairball Roommates.com opinion. I really didn’t want to–it’s such a messy opinion–but I think for now the case represents a vitally important incursion into 230 law that any good Cyberlawyer needs to know about it (even if they don’t know what to do about it). If we’re lucky, perhaps the Ninth Circuit will rehear the case en banc and issue a new and more lucid opinion before I have to teach the existing opinion.

In addition, I created a new module on “blogs and social networking sites” and added the Doe v. MySpace case, a great opinion for exploring the differences between online and offline “premises.”

Spam. I teach spam at the semester’s end, when time is running out, so we’ll see what I’m actually able to cover this year. I’ve added two recent cases: the Mummagraphics case, which wiped out a lot of state anti-spam laws and has a nice interplay with trespass to chattels, and the MySpace v. theglobe.com case, which has an odd contrast with Mummagraphics on the state anti-spam statutory analysis; plus it shows how online contracts can substitute for legislative rights.

Other. I added some explanatory material, including my standard dog-and-pony CLE presentations on keyword law and blog law and my brief distillation of social networking site law. I also updated the CRS on Spyware.

Other Changes

* I eliminated my standalone section on “search engines” and folded the material into the rest of the reader. I think there’s pedagogical value to isolating and deeply exploring search engine issues, which is why I initially segregated the material. However, search engine issues crop up throughout the foundational material, so I’m not sure that segregation worked.

* I deleted the following material:

- Corbis v. Amazon. This was an excellent case to teach 512, but I think the ccBill case superseded it in a number of respects.

- the district court opinion in Perfect 10 v. Google, which was superseded by the Perfect 10 v. Amazon Ninth Circuit opinion.

- 1-800 Contacts v. WhenU (as discussed above)

- Alaska SB 140, which I ran out of time to discuss last year.

Deliberately Excluded

* The Utah anti-keyword advertising law represents one of the most important statutory changes of the year, but I omitted it because I anticipate Utah will modify it, and there’s no point teaching a moot law.

* I skipped the Unlawful Internet Gambling Enforcement Act. I’ve generally shied away from teaching online gambling in Cyberlaw; the topic requires a lot of time to teach, making it hard to squeeze into a semester-long survey course. Plus, the new law is an analytical mess, so I’m not sure what the students would get out of the discussion.

* We were so excited to get the California Supreme Court’s Barrett v. Rosenthal ruling, but the actual opinion doesn’t add much to Zeran, so I thought it wasn’t worth the time.