Chapter 48

Cyberlaw

 

Objectives

1. Effect of internet on intellectual property law

2. Online contracting (skip this, we'll cover in contract chapters)

3. Laws regarding personal information, government intrusion on internet

4. Securities transactions over internet (skip this)

5. Examples of cybercrime

 

I. Defamation

          a. False and defamatory statement, published to third party

          Truth is a defense. Public figure must prove malice.

          b. Libel. Written defamation.

          c. Slander. Spoken defamation.

          d. Communications Decency Act (1996) Protects ISPs from statement

          by others on bulletin board.

          Zeran v. AOL, p. 1012.  Facts: Hoaxer posted plaintiff's name and phone number on AOL board, saying he was selling offensive Oklahoma bombing shirts. He gets a flood of harassing and threatening phone calls. AOL agrees to take down the statement, but refuses to issue a retraction.

          CDA provides that ISP is not a publisher for defamation purposes.

          P argues AOL is a distributor, not a publisher. Law does not apply.

          Holding: No, Congress meant to shield ISPs entirely. Distributor is

          A kind of publisher, and is therefore protected.

 

II. Intellectual Property

          A. Copyrights

          B. No Electronic Theft Act. Extends copyright to situations where there is no financial gain.

          C. Digital Millennium Copyright Act.

          No descrambling, no descramblers, no copy protection defeaters

          D. Hyperlink may violate copyright law

          Universal City, p. 1016. Facts: DVD movies protected by CSS. Hackers created a program called DeCSS, to defeat encryption. Creator posted it on his website, making it freely available. Movie companies brought suit, and hackers tried to spread the program even more.  Companies sought an injunction to shut them down.

          Court granted injunction. Law was intended to stop just this sort of thing.

          E. Framing. Link to another site, but making it look like your site.

          F. Fair use doctrine. Criticism, comment, teaching, etc.

          A&M v. Napster, p. 1018. Facts: Napster provided a forum for sharing music computer files. Files were on the users computers, and then other users could come in and copy them.

          Court found a direct copyright violation. Court rejected a fair use argument. The use is too pervasive, does not fall within the exception.

          Napster is liable as contributing to infringement.

          G. Trademarks.

                   1. Cybersquatting. Reserving a domain name with a trade name.

                   Now forbidden by Anticybersquatting Consumer Protection Act

                   2. Metatags. What if you use trademark name as metatag?

 

III. Privacy and the Internet

          A. Protection of personal information

          B. FTC Proposal

                   1. Notice of use

                   2. Choice of whether to participate

                   3. Access to change info

                   4. Security of information

          C. Protection of children

                   1. COPPA. Notice info is collected from kids, and requires verifiable parental consent.

                   2. CIPA. Requires libraries to block pornography from their internet connections or lose federal funding.

                   U.S. v. ALA, p. 1027

                   District Court: Filters are too broad, therefore the law violates the First Amendment.

                   Supreme Court: Reverses. Government has broad authority to put conditions on receipt of federal funds. Librarians have broad discretion in determining collection decisions. Congress may put strings on its money.

          D. Freedom from Unwanted Government Intrusion

                   1. Carnivore. FBI's program for reviewing emails off ISPs.

          E. Employee Privacy Intrusions by Employers

                   1. Smyth v. Pillsbury. P. 1030

                   Facts: Pillsbury had an email server. They told employees it would be private and confidential. Pillsbury promised not to use email for grounds for reprimand or termination.  He says a bunch of offensive things about the company in emails to his supervisor.  Pillsbury fired him.  He sues.

                   Holding: Communication over email to supervisor carries no reasonable expectation of privacy.  Plaintiff loses.

 

IV. Cybercrime

          A. Half of corporations reported cybercrime. 2/3 over $50k.

          18% over $1m

          B. Computer as instrument: Child porn, money laundering, gambling, theft of trade secrets, copyright violations, fraud

          C. Computer as target: Confidentiality violations, theft or destruction of info., website defacing, denial of service

          D. Viruses. I love you caused $2.6b in damages

          E. Computer Fraud and Abuse Act makes much of this illegal