An Open Internet Law Casebook | mrisch | June 03, 2014

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An Open Internet Law Casebook

by mrisch Show/Hide
This casebook tracks a broad survey of internet law topics. The approach is to silo by subject matter rather than take an exceptionalist view, though all of the material focuses on the internet and cyberlaw generally. But make no mistake that Easterbrook's view is winning here. EDIT PLAYLIST INFORMATION DELETE PLAYLIST

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  1. 1 Show/Hide More OIL Casebook Topic I: Power
    Original Creator: mrisch

    This section introduces internet law. It examines different perspectives about the regulation of internet law, as well as approaches to cross-national and state regulation

    1. 1.3 Show/Hide More Against Cyberanarchy- 65 U. Chi. L. Rev. 1199 (1998) - Jack L. Goldsmith
      Original Creator: mrisch

      This article responds to the Johnson & Post article along with other cyberexceptionalist articles? Who has the better argument? Note that Post wrote a followup called “Against ‘Against Cyberanarchy.'”

    2. 1.4 Show/Hide More Yahoo! Inc. v. La Ligue Contre Le Racisme et L'antisemitisme
      Original Creator: mrisch

      This short case note illustrates some of the issues associated with cross-border disputes

    3. 1.5 Show/Hide More American Libraries Ass'n v. Pataki
      Original Creator: mrisch

      Pataki is a useful introductory case, not only because of the regulatory issues, but also because it provides a basic description of how the internet is used. While the internet is used much more broadly than at the time of Pataki, the basic description here provides a simple technical foundation for internet law.

    4. 1.6 Show/Hide More State v. Heckel
      Original Creator: mrisch

      Heckel rules on dormant commerce clause issues as well, but comes out differently than Pataki. Why?

  2. 2 Show/Hide More OIL Casebook Topic: II. Jurisdiction
    Original Creator: mrisch

    This topic discusses personal jurisdiction in a networked world. Determining when it is fair to haul someone into court in one state when all of their actions were undertaken in another state is much harder than it looks, and can often be fact specific.

    This section considers general and specific jurisdiction, and discusses various tests courts have used to determine whether the constitutional mandates have been met.

    1. 2.1 Show/Hide More Daimler AG v. Bauman
      Original Creator: mrisch
      Daimler AG v. Bauman provides a nice summary of the different types of personal jurisdiction — and makes clear why general jurisdiction won't apply to most internet disputes.
    2. 2.4 Show/Hide More Calder v. Jones
      Original Creator: mrisch
    3. 2.5 Show/Hide More Cybersell Inc. v. Cybersell Inc. - Calder section
      Original Creator: mrisch

      This case segment discusses how Calder might apply to Cybersell.

    4. 2.7 Show/Hide More Revell v. Lidov
      Original Creator: mrisch
    5. 2.8 Show/Hide More Putting it together: ALS Scan Inc. v. Digital Service Consultants
      Original Creator: I. Glenn Cohen Current Version: mrisch

      ALS Scan relies on both Zippo and Calder. Does this case present a combination rule, or does one precedent dominate the other?

  3. 3 Show/Hide More OIL Casebook Topic III: Trademarks
    Original Creator: mrisch

    Trademarks are an important aspect of Internet Law. This section introduces trademarks and explores the ways they impact business and discourse on the internet.

      1. 3.1.3 Show/Hide More Playboy Enterprises, Inc. v. Universal Tel-A-Talk, Inc.
        Original Creator: mrisch

        This case illustrates the application of basic trademark principles on the internet

      2. 3.1.4 Show/Hide More Albert v. Spencer
        Original Creator: mrisch

        This case also involves the identical use of a trademark, but comes out differently. Why? Is this the right conclusion? Could the plaintiff have made better arguments?


        Note that trademarks may infringe even if they are not identical. These examples are merely used to show the analysis of factors

      3. 3.1.5 Show/Hide More John Facenda - The Voice of God

        This short video is an example of John Facenda's famous voice. Most people didn't know his name, but anyone who watched an NFL Film in the 1970's, 80's and 90's would recognize it.

      4. 3.1.6 Show/Hide More Facenda v. NFL Films Inc.
        Original Creator: mrisch

        This case illustrates the breadth of the Lanham Act's trademark policies: to a voice used in connection with advertising. Trademark law is not just about using some one else's identical name or logo on a product or service/website. Did the court reach the right decision?

    1. 3.2 Show/Hide More OIL Casebook: Domain Names
      Original Creator: mrisch

      This section considers some of the earliest trademark disputes: domain name overlaps.

      1. 3.2.1 Show/Hide More Planned Parenthood Federation of America, Inc. v. Bucci
        Original Creator: mrisch

        This was a very early domain name/trademark case that became a cornerstone for future cases- it applies traditional trademark rules to the dispute

      2. 3.2.2 Show/Hide More Cardservice Int'l, Inc. v. McGee
        Original Creator: mrisch

        This case considers how a nominally descriptive term might be protected as a trademark — and domain name

      3. 3.2.3 Show/Hide More Green Products Co. v. Independence Corn By-Products Co.
        Original Creator: mrisch

        This case tests the limits of infringement by using a domain name

      4. 3.2.4 Show/Hide More Brookfield Communications v. West Coast Entertainment - Domain Name
        Original Creator: mrisch

        This case examines use of a domain name by a competitor. A wrinkle is that the competitor is much larger, and had used a similar mark for many years.

    2. 3.3 Show/Hide More OIL Casebook: Keyword Advertising
      Original Creator: mrisch

      This section considers a more modern trademark dispute: when search terms include trademarks and point consumers away from the trademark owner's site.

      1. 3.3.1 Show/Hide More Brookfield Communications v. West Coast Entertainment - Initial Interest Confusion
        Original Creator: mrisch

        This case is widely considered the birth of the initial interest confusion doctrine as applied to the internet. We will see how application of this case evolves. For example, are metatags important anymore?

        This case also includes a first introduction to fair use – the ability to use trademarked terms in a descriptive way. This will be revisited in other cases.

        Recall the basic facts: West Coast used moviebuff.com, though Brookfield had registered MOVIEBUFF (one word) as a trademark. Earlier in the opinion, the court determined that West Coast would be enjoined from using moviebuff.com. This section considers the use of “moviebuff” on the website in a way that brought search engines to West Coast's web site, rather than Brookfield's.

      2. 3.3.2 Show/Hide More Rescuecom Corp. v. Google Inc.
        Original Creator: mrisch

        This case introduces initial interest confusion at a basic level: is using a search term even the use of a trademark?

      3. 3.3.3 Show/Hide More Playboy Enterprises v. Netscape Communications
        Original Creator: mrisch

        This case is a straightforward application of initial interest confusion, but with keywords rather than metatags.

        The case also introduces a new defense: nominative use. Like fair use in Brookfield, this will be explored in later cases.

        Perhaps most important, the concurrence in this case shows a beginning challenge to initial interest confusion that continues in future cases.

    3. 3.4 Show/Hide More OIL Casebook: Trademark Defenses
      Original Creator: mrisch

      This section examines some of the primary defenses used to justify the use of another's trademark – or ordinary words that are similar to a trademark – on the internet. Consider how interrelated they all are, and whether each should be considered separate.

      1. 3.4.1 Show/Hide More Bihari v. Gross
        Original Creator: mrisch

        This case considers applies the fair use defense. What are the requirements?

      2. 3.4.2 Show/Hide More Taubman Co. v. Webfeats
        Original Creator: mrisch

        This case explores the interrelationship of the First Amendment and trademark infringement