Requirements

A. Requirements

No prerequisites are required for this course. However, preference is given to those students enrolled in the High Technology Law Program. Additionally, this course is open to students with all levels of computer proficiency. If you do not have any prior background in using the Internet, you should sign up for a training session with Gina Doherty, Director of the Law School 's Computer Resource Center . If you need to brush up on your LEXIS or Westlaw skills, you are strongly encouraged to sign up for a refresher training session prior to the week of the course in which those aspects are studied.

B. Reading Assignments

You will have reading assignments for each class. Please read the assigned materials and be prepared to actively discuss them with the class. The reading assignments for each week are detailed in the course syllabus. Additionally, be sure to hand in the class assignments as detailed in the course syllabus.

C. Class Participation

Many of you have extensive computer backgrounds and knowledge. The instructors will be the discussion leaders, but all students are strongly encouraged to participate in the class discussions. As a seminar, this course is designed to be a collective learning experience.

D. Class Projects

Students will divide into groups of two or three and the groups will select a topic. (No two groups may select the same project, so select several topics as alternatives.) The group will decide which two students will participate in the panel discussion, which student will present a business plan and which student presents the group's web site.

Each project will consist of:

a) A website based on the group's primary topic. Some hypotheticals explore ancillary areas of law, but stick to the main topic. The website will have an explanation of the topic in layman's terms in addition to links to other online resources. The explanation should provide enough information for a reader to understand the background and potential legal hurdles of the topic. All three students will work on the project. One student from the group will present the web site to the class. Websites should be limited to no more than three pages. Websites should be limited to no more than three pages.

b) A panel discussion on the group's topic. Each member of the group will discuss their opposing views based on the paper topic selected. For example, if the group chose the 'Spam' paper topic, one student would be the sender and one would be the recipient. If the group chose the 'Professional Responsibility' paper topic, one student would be the attorney and the other student would represent the injured client. Each student in the panel discussion will present their views for ten minutes. Use of Powerpoint as a presentation tool is highly encouraged. The two students in the group should work together to provide an introduction and background to the topic so that their discussions are not redundant.

c) A business plan for an e-commerce start up. Both students are to work together devising a business plan. One student will assume the role of CEO of a dot-com and present the plan via the web and/or a Powerpoint presentation. The other student will walk thru the website and product offering(s). The presentation should address the questions raised below. Since some students may be representing e-commerce start ups, they should put themselves in the entrepreneur's shoes and create a business plan. The business plan should be two to three pages in length. Again, the group will submit written answers to the following questions and present for ten minutes each:

Key business strategy:

1) Product(s) and or Service(s);

2) Target market - demographics;

3) Geographic focus;

4) Start-up capital / resource requirements;

5) Potential sources of start-up capital?

6) Source(s) of revenue / profit (i.e. - actual product sales, advertising);

7) Marketing strategy - how will you generate awareness of your site / product?

8) Current and potential competition;

9) What sets your site / products apart from the competition;

10) Long term revenue, growth, and product plan - i.e. - 6 months, 1 year, 5 years.

E. Research Paper

1. Overview of Research Paper Guidelines

Although this course does not fulfill the law school's writing requirement, the substantive paper counts for a significant portion of your grade. The goal of your research paper is to state and respond to specific questions, or set of questions, that relate to an issue involving cyberspace law. Listed below in the next section, are sixteen fact patterns with corresponding questions. Each paper must be individually written and submitted.

You should select a fact pattern, which enables you to do an extensive analysis that can be discussed in ten double spaced pages. Answering the questions associated with each fact pattern may prove to be difficult at first, but the exercise is similar to the experience that you have when writing briefs, memoranda of law, etc. (As a general matter, choose a topic of interest to you, not necessarily what you think will interest your instructors.)

Approach your paper assignment with the same analytical perspective as an exam. We would rather see a well researched ten page paper with cogent analysis than a twenty page paper that just lists case after case but has no analysis. There are no right or wrong answers, but back up your work with in depth research including cases, law review articles, online source, federal materials, news stories, etc. Use as much case law as you can, and be sure to articulate different legal analysis where appropriate (i.e. Analogies, Characterizations, Facts and Meaning, etc.) Also, if you find cases that oppose your point of view, incorporate them into your analysis and explain why these are some of the hurdles you or your client might face or how the ruling would not apply to this particular case. Perhaps you can craft a novel argument if all case law has been against you.

All sources must be footnoted (not end notes) in Bluebook format. Feel free to fully use the footnotes for parenthetical explanations and slight digressions. Do not ignore the business perspective if it is appropriate. If there is an obvious business solution that would save a client from litigation, suggest it in addition to your legal analysis. Some of the questions hint at potential business solutions. Also, do not forget to tie your analysis back into the fact pattern

2. Selecting a Topic for the Research Paper

After each group selects a topic, each member of the group should choose one of the questions to answer within their respective paper. Every student should answer a different question. No more than one group can select each fact pattern, so pick several alternatives. Select one of the topics below:

Antitrust

"Coopetition" is the new paradigm in business. The Internet has spawned a new type of environment wherein competitors work together on some projects and compete on others. Yohoo, a successful search engine, supports itself through advertising. Yohoo currently receives 15% of world wide search engine traffic. Likeus is a search engine similar to Yohoo, except they use different search logic and provide an alternative venue for web surfers. Likeus has a 10% share of search engine traffic. The CEOs of Likeus and Yohoo meet at a search engine conference and decide that coopetition is the way to go. They provide links to each other's web sites and give reduced rates to advertisers who place banner ads on both search engines.

Several other search engines who also use their own unique search logic, Altervisitor, and Webwiggler, among a few others, contact Likeus and ask to be a part of their "coopetition" agreement. Soon 10 search engines, which represent 70% of web traffic, provide links to each other's sites and have reduced joint advertising prices for advertisers who advertise on all 10 sites. Another popular search engine, Websnail, notices that its traffic has decreased since the 10 other sites created their coopetition agreement. Some advertisers have stopped advertising on Websnail, telling them that they can get a better price by advertising on the other 10 search engines at once. Websnail received 10% of search engine traffic before the coopetition agreement, now they get about 5%. The remaining 20 other search engines get the remaining 25% of search engine traffic. Websnail approached Likeus to let them know that they were interested in being a part of the coopetition agreement, but Likeus said that Websnails search algorithms were too dated to provide any additional value.

Other regular advertisers on Websnail are threatening to stop advertising unless Websnail can become a part of the coopetition agreement and traffic is diminishing. Websnail wants to take legal action because they suspect the other search engines may be violating the antitrust laws.

a) You are the in house counsel for Websnail. How do you craft your argument that the other search engines are violating antitrust laws? What would you have to prove? How does e-commerce complicate traditional case law? Would proving the share of banner ad revenue be of any help, or should you just focus on the percent of traffic? How would you define the market? What type of recourse would be appropriate? Since the Internet is world wide, could your European office take any action based on article 85 or 86 of the European Union Treaty (Maastricht )?

b) Your firm represents the search engine Likeus. How would you defend your self against an antitrust suit? Would traditional case law be of any help or would you have to create a novel argument? How would you define the market? What are the possibility implications if the judge rules against you? How can you defend yourself against the potential suit under article 85 or 86 of the European Union Treaty (Maastricht ), since you do have a European subsidiary?

c) You are an attorney for the Department of Justice and want to break apart the coopetition agreement. What case law supports your argument? How would you define the market? What are the risks of letting the coopetition agreement continue? What action can you take against the group? What further information might you need to make your case?

Copyright / Trademarks Online

Skip Howell is a die-hard Gilligan’s Island fan.He spends most of his spare time devoted to his web site “Gilligan.com.”On the fan page he features pictures from the show as well as a server that houses various clips of his favorite episodes which can be access through a Gillian-only search engine on hissite.The clips play through streaming media and appear on a 2x2 inch portion of the screen.Skip is also proud that he provides an online forum at his web site for other Gilligan fans where they post portions of scripts from their favorite episodes and add commentary.Skip automatically edits the submissions for profanity, but does not go through the forum manually.The site also features links to other Gillian’s Island fan sites.To support the expense of hosting the site, Skip has several affiliate advertisements on the site, which pay him a nominal amount every time someone clicks on them.The affiliate revenue covers the cost of his high speed telephone line and hosting services, but does not create any profit.Additionally, Skip sells copies of his ‘little buddy’ key chain on the web site – a stick figure on a key chain with a red sweater and white sun hat.While it does not bear Gilligan’s face, many people who have seen the show will recognize it as Gilligan.Skip has yielded a token profit of about $500 annually from his little buddy key chains, although he claims that demand is growing.

a) You are a solo practitioner who plays golf with Bob Denver, the actor who played Gilligan.Bob was upset when he learned of Skip’s site and was confident that Skip must be breaking the law and must be stopped.Bob came to you looking for advice.He has the following claims:

Skip can’t use the Gilligan image without permission – the pictures must be removed and the film clips have to be stopped.
Bob wrote some of the scripts and deserves a royalty for the portions that are posted on Skip’s site.
Surely only Bob has the right to ‘Gilligan.com.’ and there must be a way to stop him from using the domain name.
Even though the ‘little buddy’ key chain does not bear his face, they are exploiting his character and shouldn’t be used without permission.

How do you address Bob’s claims and what causes of action do you propose.How likely are they to succeed?Are there any other claims that you might be able to make?What defenses do you anticipate from Skip and do any of them diminish your claims?Is there a non-litigious solution to this dispute?

b) You are an attorney representing Skip.Skip comes into your office and tells you about Bob Denver’s claims (above). While he has not received a formal complaint, he has learned through the grapevine of the four areas of contention.How do you advise him regarding the merits of the potential?Are there other possible claims?What defenses does he have?Is there a way you might be able to help solve this before going to court?

c) (A&B do not have to address the situation below) You are in house counsel for Skip’s Internet Service Provider (ISP), 3hourtour.net.As an ISP, you usually do not bother with the content of your client’s sites.However, you received a request by Bob’s attorney to take down Gilligan.com on the basis of a claim against the domain name and the potentially infringing content on the site in addition to infringing product being sold.You are also told that if you can not take the site down immediately, please to deactivate the external links leading to other Gilligan’s Island fan sites, since they also may contain infringing materials.Additionally, you are asked to take down the affiliate advertisement links as well.You send Bob’s attorney a response acknowledging the letter and letting him know that you will first invite a response from Skip before taking down or modifying his web site.While it would be easy to give into Bob’s attorney’s request, your ISP prides itself on customer service and is willing to invest the resources to fully investigate the situation.If you refuse to yield to Bob’s attorney’s request, what causes of actions might he have against you as an ISP.What defenses do you have?Are there any recent cases or disputes that provide some insight?(Focus on ISP issues, but if you find insufficient material for your paper, feel free to leverage off of the following questions) You want to create an amicable solution to the dispute – what portion of Skip’s site might be legally problematic and why? What portion of Bob’s claim might not be valid and why? How would you suggest Skip and Bob resolve the dispute?

Cyber-terrorist Liability / Security

Iona Modem is an ex-patriot from the republic of Sloberia (in Eastern Europe ) living in the United States . Iona loves the U.S. , but misses her home country and regularly contributes to the local Sloberian charity, the Sloberian Library Underwriter's Mission (SLUM). Through SLUM's web site, Iona can get regular updates of the charity's activities in her homeland and make additional contributions with her credit card. SLUM is a legitimate and registered charitable organization and regularly accepts donations online, which it promptly and appropriately distributes. Like most charitable organizations, SLUM operates on a shoestring budget, allowing it to pass more funds on to the needy. Consequently, SLUM is staffed primarily by volunteers and a core staff of underpaid yet dedicated employees. A generous donor did provide SLUM with a computer and software to act as a firewall and the same computer also hosts the web site, processes transactions, and stores records. The SLUM server has packet filtering, but nobody designated any level of protection for the ports. A volunteer monitors the web site a few times a day during the work week and transmits bank data to process donations weekly.

Mac Kaput is part of the Sloberian Liberation Imperial Marxist Enterprise (SLIME). He deeply resents the current government in Sloberia and any entity that supports them. SLIME has targeted SLUM and other organizations for their counter-revolutionary activities. Mac is an accomplished hacker and SLIME orders him to disrupt SLUM's activities through online channels. On a Saturday, Mac commandeers one of the few operating phone lines in Sloberia and promptly programs a Denial of Service attack (DNS) which overwhelms SLUM's server and renders the site unusable for a while. He is pleased to discover that the web site is not well protected and after some clever digging, Mac is able to log directly onto SLUM's server. On the server he finds the names, addresses, telephone numbers, e-mail addresses, credit card numbers and the amount donated to SLUM, which he promptly posts online for all to see. Mac also changes the web site to show only pro SLIME messages.

Mac's handiwork is discovered when the SLUM offices reopen on Monday and they quickly fix the pro SLIME messages. The volunteers do not realize that MAC found and transmitted personal data until several upset donors call later in the week. Iona immediately began receiving hate-SPAM and some very obnoxious telephone calls. When she finally receives her credit card bill, there were over $3,000 in suspicious charges, including several purchases from Fredericks and debits to an online gambling site.

a) You are Iona Modem. Your credit card company immediately credits you for the unauthorized purchases, but you are still plagued by overwhelming hate-SPAM and harassing calls by someone with a Sloberian accent. What recourse do you have against SLUM? Was their security adequate? How does their status as a charity potentially limit your recovery? While Iona probably can not trace Mac as the cause of her difficulties, he clearly left behind the 'calling card' of SLIME. How much recourse would Iona have against SLIME in a U.S. court? What are some of the difficulties that she might face?

b) You are outside counsel for SLUM. How can you protect yourself against Iona 's lawsuit. Are there any other non-litigious remedies that you can employ to minimize your client's potential liability? Does SLUM's status as a charity help their situation? What causes of action would you have against SLIME and what difficulties might you face in getting them to a U.S. court or collecting judgment?

c) You are a legal aid attorney representing Mac Kaput. Mac was nabbed while price switching bulk toilet paper at a Costco in New Jersey . During the investigation, he cracked under pressure and some hints of his involvement with the SLUM hacking came to light. Focusing strictly on the Internet law related issues, what defenses can he raise against Iona and SLUM, even if there is evidence directly linking him with the hack attack and subsequent private data posting? Should the local court be able to assert jurisdiction over Mac for his activities thousands of miles away? Aside from his confession, how difficult could it be to prove that he initiated the attack?

Financial Privacy (2 party case)

Gramm Leach is sick of the high fees of his local bank. He decides to find an online bank that does not have transaction fees, account maintenance fees, and ATM fees. After some searching, Gramm settles on Delaware based Bliley bank, which claims to have fee free banking online. Bliley bank has the usual terms and conditions to open an account. At the bottom of the terms is a tiny privacy and copyright link. The privacy link leads to a standard privacy policy, including Bliley's pledge not to disclose personal information to third parties without permission. At the bottom of the policy is a note that states "this policy is subject to change without notice at any time." Gramm clicks through the basic terms and conditions, submits his personal information, including his social security number, hits the "accept" button, and transfers $500 to the online bank.

A week later, Gramm starts receiving very personalized unsolicited e-mail from several companies, including offers for credit cards that have his social security number already filled in. A mutual fund company owned by Bliley bank regularly calls Gramm as well. Soon he also receives notice that someone had tried to apply for credit using his social security number and a forged signature. Gramm is a not the type of person to disclose his personal information to anyone and he quickly suspects that Bliley bank is the source.

Upon returning to their web site, Gramm discovers that the privacy policy has been modified. The policy now says that Bliley bank does not charge any fees, since they generate revenue by sharing or selling personal information to carefully selected third parties. Depositors can opt-out, but the harm has already been done - Gramm's personal information was disclosed to multiple third parties.

Bliley used FlyByNyte marketing to carefully select third parties to buy personal information. FlyByNyte's careful selection process screened out anyone who couldn't pay the asking price. All others were accepted. Bliley did inform FlyByNyte that the personal information should be carefully protected, but did not follow up or monitor their activities.

a) You are Gramm's attorney. What causes of action do you have against Bliley? Do any recent federal statutes support your faces. Does the fact that Bliley bank used FlyByNyte help or hurt their defense? Should they be permitted to modify their privacy policy without notice? Is Bliley liable for any unlawful abuse of Gramm's personal data? What would you ask for in terms of damages?

b) You are in house counsel for Bliley. What causes of action do you anticipate Gramm asserting and what defenses do you have. Do you anticipate any difficulties with federal law? Are you liable for the unauthorized use of Gramm's personal data? You may have some causes of action against FlyByNyte, but discover that they are almost bankrupt. Can you minimize your liability since you used them to manage the resale of customer data? Any suggestions to try to resolve the case and minimize negative publicity. What would you advise Bliley to do in the future to minimize liability of this type?

Free Speech

Andy Anarchy is a 15 year old high school student who has some issues with 'the establishment.' Andy has taken to the web in order to express his opinions and meet other people to discuss ideas. One of Andy's teachers, Connie Conservative, expresses substantially different views during class. Andy is convinced that she doesn't like him because of his nose ring or the various tattoos on his arm. Connie and Andy get into a heated debate during a discussion of Catcher in the Rye . Andy is certain that J.D. Salinger inserted a subtle anti-proletariat theme throughout the book and the establishment keeps the book on the syllabus to oppress his causes. After class, Andy wants to get back at Connie and posts his opinion about her on his web site "www.radicaldude.com." On his web site he writes that Connie is a big meanie and she must be stopped, no matter what the cost. He posts a message on his site advocating a massive Cliff Notes burning in front of the school the next week. Although he would never admit it, Andy is probably the only person who ever visits "radicaldude.com." He has not used any meta-tags nor registered with any search engines. Later that week, Andy decides to let Connie know how he feels and put a post-it on her gradebook that says "go to www.radicaldude.com." Connie does visit the site.

a) You are Connie and you visit Andy's web site. You find the content threatening and defaming, since no one wants to find a web site that calls them a big meanie. You are also troubled by his call for a Cliff Notes burning at school later that week. What legal cause of action do you have against Andy to try to get him to stop posting comments about you? Is his threat that you must be stopped at any cost actionable? Do you expect any constitutional objections?

b) You are the school superintendent. Connie has told you that she wants Andy expelled for the content of his web site. How do you balance the constitutional rights of Andy and Connie? What can you do about Andy's call for the Cliff Notes burning? What is the potential liability to the school? Is there anything that you can do to amicably resolve the dispute?

c) You are Andy and are surprised that Connie is upset by the content of your web site. Your parents appreciate your radical cause and hire a lawyer to help you after school. What defenses do you have if Connie brings suit. Do you have any potential liability for the content of the web site? Can you defend yourself against the threatened expulsion? You did not expect that people would take the site so seriously. Is there anything that you can do to help resolve the dispute?

Internet Access at Work

Pete Postal is a government employee who has a computer at his desk. Pete wants to advance in his career and enrolls in an after work degree program. The government agency actively encourages employees to advance themselves and helps fund the tuition for the program. One of his required courses is human sexuality. Pete decides to do some of his homework after working hours on his computer at work, after everyone else has gone home. He finds that the Internet is a great way to do his research and gets most of the materials that he needs to complete his assignment.

The next day, Nellie Nosie noticed some of the things that Pete downloaded from the Internet and accidentally left on the printer. The print out that Nellie found consisted of clinical text about tests conducted on a former presidential candidate. All graphics were simple black and white diagrams. Nellie immediately brought the documents to Pete's boss, who fired him for abusing the Internet at work and downloading what Nellie thought was pornography.

a) You are a taxpayer who heard about Pete's Internet fiasco and wants to know what employees are doing with taxpayer money? You want a copy of the Internet cache and history files of each employee to see where they have been and also copies of e-mail. Discuss the reach of the freedom of information act and how it applies to electronic media used in government workplaces. Do government employees have any expectation of privacy for their electronic files?

b) You are Pete who is now out of a job, just a few years before earning a pension. Do any cases support the privacy of your electronic files or use of the Internet at work? Can you be fired for using the Internet after working hours, especially considering that there was no policy forbidding it? Can you block a taxpayer's freedom of information act request looking for your cache and history files?

c) You are the governmental agency who fired Pete. Do you have to give Pete's file to the taxpayer insisting on copies based on the freedom of information act? Can you fire an employee for using the Internet after working hours? Could Pete still be fired if he did not leave anything on the printer and his online use was discovered through a review of the log in the I.S. department? What policy would you devise for the future to balance the needs of your employees with your business needs?

Jurisdiction

Murray and Ogden have had enough of New England skiing and want to try the white powder of Utah . They search the Internet and find an online travel agent who specializes in ski vacations outside of New England . While surfing the online travel agent's web site they find a link to a resort in Bountiful Utah , just outside of Salt Lake City . The resort's web site is a virtual brochure, with colorful pictures and descriptions. Although the web site does not list prices or allow for reservations, there is an e-mail link, allowing visitors to click and e-mail an inquiry. Aside from the web site, the resort advertises in a few national ski magazines. The ads are infrequent and are usually less than 1/4 page. Massachusetts residents account for about four percent of the resort's annual revenue.

Ogden is enticed by the web site and sends an e-mail asking for rates and availability. They confirm the reservation by phone. Within a few days, Murray and Ogden fly out from Logan airport for their big Utah skiing adventure. The snow is not quite what they expected since it was not groomed like the pictures on the web site. Ogden falls on his first run and is too sore to continue his skiing adventure and spends the rest of his time in the hotel soaking in the hot tub.

Murray had a great time skiing solo, since he did not have Ogden to slow him down. At night, he explored the surrounding area and was delighted to find towns named "Murray" and "Ogden." Murray raced to a local cybercafe to register domain names to commemorate his trip. He registered both "murray.com" and "ogden.com."

When they return home, Ogden discovers that he has a hairline fracture in his leg and that he will not be able to ski for the rest of the season. Murray , on the other hand, has murray.com and ogden.com directed to his web site, which is populated with pictures from the ski adventure.

a) You are Ogden and want to sue the resort for negligence, since the snow was not properly groomed. Assuming that you have a legitimate cause of action for negligence, can you assert jurisdiction over the Utah resort from Massachusetts ? What does the long-arm statute say and is this a constitutional assertion of jurisdiction? Was the resort's web site enough to confer jurisdiction? How about the other forms of advertising? What about the e-mail? Does it matter that you found the resort on a link to an online travel agency? What cases provide support for your argument and which cases might lead the courts against you?

b) You are an attorney representing the resort in Utah . How can you have Ogden 's suit dismissed for lack of jurisdiction? What cases support your argument and can you distinguish this situation from decisions that might be held against you? Is the web site sufficient to meet the minimum contacts requirement? How does the national advertising affect your defense? What can you put on the web site in the future to try to minimize jurisdictional exposure and are there any cases that support this?

c) You are an attorney representing the towns of Ogden and Murray. The towns wanted to have their own web sites and demand that Murray transfer the domain names that he registered. Focusing on the jurisdictional aspect, can the towns sue Murray from a Utah court? Was his registration sufficient to confer jurisdiction? What about the fact that he registered the domain names while he was in Utah . Are there any cases that support the assertion of jurisdiction? Will Murray have a legitimate defense since he registered the sites after his and his friend's names? What if the domain names lead to a web site that claims to be the official gateway to the towns of Murray and Ogden Utah ? Are there any business compromises that the towns can propose to avoid litigation?

Linking / Framing / Tort

Suffolk PCs requires a lot of technical information for their e-commerce site. As quickly as they post whatever they can find, the information changes. The technical staff just can't support the product information demands of the web site and purchasers are constantly sending e-mail requests for more product information and specifications. The staff is convinced that they would not have to deal with as many customers calling if all of the information was online.

Tommy Tech is the manager of the customer service department and is overwhelmed. He decides that an easy solution is creating a frame around the technical information from other web sites. Some of the framed sites are vendors, some are competitors. Tommy also puts in a few links to other sites that have information.

Zipp Dryve recently bought a computer a local store and was having some trouble setting it up. While searching the web, he found the Suffolk PCs web site and searched the technical information. Zipp printed out some instructions that were on the Suffolk PCs site. The instructions were actually on www.megamonsterPCs.com, but were framed by the Suffolk PCs site. Unfortunately for Zipp, the instructions were a little off and he accidentally fried his motherboard, a critical piece to his computer. Zipp e-mailed Suffolk PCs and wrote that he wanted a new computer for free or he was going to sue.

The web master at MegamonsterPCs hates when his site is linked or framed and posted a specific "do not link" and "do not frame" notice on all pages. He did not have time to search out those who framed or linked to his site, but did send a request to stop anytime someone let know of a link or frame to his site.

a) You are in house counsel for Suffolk PCs. How do you respond to Zipp's request? What potential causes of action might he have against you? Does it matter that he did not buy the computer from Suffolk PCs? Is there anything that you can put on the site to avoid this type of problem in the future? Can you get indemnification from MegamonsterPCs, since the bad advice came from their site? MegamonsterPCs and a few other sites insist that you stop linking and framing their sites. Do you have a right to continue? Is there any case law that could support your position?

b) You are Zipp's attorney. Can you sue SuffolkPCs for damage to the computer if they do not provide your client with a replacement? What precedent supports your claim for their liability? What would be the cause(s) of action? Can you also sue MegamonsterPCs? Should companies be liable for third party links or frames and are there any cases that help support or oppose your opinion?

c) You are the in house attorney for MegamonsterPCs. Do you face any liability for Zipp's computer? What are the potential causes of action? What are your defenses? Can you join Suffolk PCs as a party if Zipp sues you directly instead of Suffolk PCs? What steps can you take to avoid this type of problem in the future? If Suffolk refuses to remove the frame and or link, do you have any legal cause of action? Is there any case law that might help you? Do you anticipate that they might have any defenses?

Medical Malpractice

Bigpharma is a drug and medical device company in Maryland that has created a small, remotely programmable radio frequency ID chip. The chip has been FDA approved for implantation into transplant organs as a fail-safe method for doctors to make sure that they are giving the right patient the right organ. The RFID chip, “Organright,” has been successfully used for over a year at various hospitals without incident.

Bigpharma has a feedback forum on its website, bigpharma.com, for doctors and hospitals to publicly provide comments and exchange ideas about its various products, including Organright. Bigpharma has a disclaimer on the feedback forum and does not monitor the postings, aside from an automatic obscenity filter and removal of postings that are the subject of an e-mailed complaint.

Doctor Dan is a young emergency room surgeon who loves technology. He is not involved in organ transplants, but stumbles on the Organright thread on bigpharma.com and realizes that the product may have more uses. Doctor Dan sees lots of patients in emergency situations and is often frustrated that it may take a while to get the patients’ medical history and statistics, which could delay care. He realizes that the Organright chip is small enough to insert right beneath the skin of a patients arm with local anesthetic and it would have enough space to fit a patient’s medical history and statistics. Dr. Dan convinces the hospital administration that this new use of Organright would be a great benefit to some of their repeat patients, including those with epilepsy, hemophilia, and perhaps even high-risk pregnancies.

Dozens of patients agree to have Organright filled with their medical information put under their skin. The patient sign standard consent forms addressing the risks of subcutaneous insertion of a small RFID chip. Months later, the program is deemed a success, after two patients receive lifesaving care because their medical information was just quick scan on an RFID reader, which can be up to 12 feet away.

Bigpharma learns of the success of Dr. Dan’s novel use of Oranright and decides to gather some information at the hospital. They send a marketing assistant to sit near the entrance with a hidden RFID reader to capture patient information as they enter and leave the hospital. After a few days, the marketing assistant collects unencrypted RFID data on over 100 patients. Bigpharma mines the data and decides to market its other products to the patients based on their medical histories.

Percy patient unfortunately has a number of medical issues that have required a few visits to the emergency room. He has had the Organright chip put in his arm and was surprised to soon receive marketing materials specific to his various ailments from Bigpharma.

a) You are an attorney and Percy visits your office. He is distraught that his medical information some how got into the hands of Bigpharma and after some discussion, you both realize that it might be related to the Organright data. Percy wants you to sue Dr. Dan for medical malpractice and anything else that you can throw at him. What causes of action might Percy have against Dr. Dan and Big Pharma and how likely is he to proceed?

b) You represent Dr. Dan, who comes in your office with news that Percy might sue him for medical malpractice and perhaps some other causes of action. On what grounds could Percy sue and what defenses does Dr. Dan have? Could Dr. Dan join Bigpharma as a party?

c) You are in-house counsel for Bigpharma and you get wind of Percy’s potential intentions to sue your company for marketing products to him specific to his private ailments. Could Bigpharma be liable for their actions? Percy claims that because Bigpharma.com has postings indicating that data on Organright chips is easy to ‘Phish’ because it is typically unencrypted, the product is defective. Does this claim seem viable?

Online Contract & Security

Clarence Collector is an avid music fan who is always looking for anything from his favorite group, the Grateful Stones. Clarence often scours the online auctions for additional 8-track tapes or CDs to fill his collection. One of Clarence's favorite auction sites, www.beaniebay.com, often carries a few hard to find albums. Beaniebay has been an easy way for Clarence to enlarge his collection, since he can bid with his credit card number online and wait eagerly for UPS to bring his package a few days later.

Recently, Clarence bid for a set of cassette tapes on the Beaniebay site advertised as "genuine unauthorized bootleg copies of the Grateful Stones 1975 reunion album. Clarence was thrilled a few days later when he received an e-mail from Beaniebay letting him know that his $60 bid was the highest one and the seller would be sending him the merchandise after Beaniebay billed his credit card. Corey Counterfeiter, the seller, promptly shipped the tapes to Clarence and was credited by Beaniebay.

Sally Sneak actively monitored the Beaniebay site with her electronic "sniffer" which could intercept and read correspondence to and from the site. Beaniebay had grown very quickly in popularity and never had a chance to install the most high tech security measures. They used a security program that was sold in stores and came with frequent upgrades. Still, Sally's sniffer was able to get by the program. Sally saw Clarence's credit card number and decided that it would be great for some shopping. She charged several thousand dollars worth of merchandise online before Clarence had noticed the problem on his credit card statement. It was not without some aggravation that he was able to have his credit card company remove the charges except for the first $50 that Sally charged.

Clarence was not happy with the quality of Corey's Grateful Stones album. He thought that there was too much hiss and that it did not properly represent the tonal qualities of 1975. Clarence told his credit card company to reverse the charge, since he shouldn't have to pay for something that is an illegal copy anyway.

a) You are Clarence. Do you have any cause of action against Beaniebay for having the most sophisticated security system? You did have to pay the first $50 to your credit card company and it did waste some of your Grateful Stones listening time. What defenses should you anticipate? Should you have to pay for the item that you bid for, even though it was an illegal copy? Are there any cases that support or oppose your argument?

b) You are the in house counsel for Beaniebay. What defenses do you have against Clarence for the security breach? Does any case law support you? The lawyer for the Grateful Stones called and is threatening to sue since you sold a counterfeit tape from your auction site. Do you have any defenses? Should you be able to compel Clarence to pay for the tape that he ordered? Do you have to credit Corey's account? What would be the basis for your cause of action against Sally?

c) You are Corey. Should you be able to collect your money from Beaniebay for selling the Grateful Stones tape? You did advertise it as a genuine bootleg copy, isn't that sufficient? Do you have a cause of action against Beaniebay? Against Clarence? The lawyer for the Grateful Stones contacts you about selling a counterfeit tape. What are your defenses?

Online Gambling

Johnny Vegas starts an online gambling site, ‘awesomeodds.com’ from his parent’s garage in Somerville . He incorporates his business in Vanatu and has the server hosted in the Bahamas , where he has also established a bank account. Awesomeodds.com offers online poker against real and computer opponents and virtual scratch tickets. Johnny charges a $3 fee per player per game for participants to play poker, plus a 3% commission on all winnings. Johnny has adjusted the program so that players who go against the computer typically have worse odds. The virtual scratch tickets work on the basis of a formula devised by Johnny. The proceeds of each $5 virtual ticket go into an account. When the account hits $200, the next ticket purchaser will win $50. With each $1000 increment, Johnny gives the next ticket purchaser $100. The players transfer all funds to Awesomeodds.com through Paypal, and the money is deposited into the Bahamian account. The services sold are listed as ‘sporting event,’ on the Paypal transaction receipt.

Warren is an avid poker player, but most of the time he spent learning the game was during wild college parties, so he is not a very successful player. One night he uses his credit card to transfer $1,000 to Paypal, which he spends at ‘awesomeodds.com.’ Over the course of the evening, Warren cleans out all of his $1,000 playing ‘ Texas hold ‘em’ against other online poker players, and empties his account.

Warren calls his Visa card company and asks for his account to be reimbursed, since the $1,000 was ‘illegally taken’ by an ‘illegitimate’ web site. His Visa Company refuses, and tells him that the transaction was a legitimate transfer to Paypal, and cannot be reversed. Paypal informs him that he can’t get his money back and needs to take it up with the web site.

Harry Hacker is a college student in New York with time on his hands. He goes onto awesomeodds.com, tests out the back-end script engine on the scratch tickets, and realizes that he can monitor the site to know when to buy a winning ticket. Harry transfers $10 through his Paypal account to awesomeodds.com and starts playing the scratch tickets based on a script that created. With a few hours work, he wins $550, gets the money transferred back to his Paypal account, and cashes out.

a) You represent Johnny. He figures out what Harry did and wants to get his money back from Harry. Does Johnny have any civil remedies and could he alert law enforcement about what Harry did, hoping that they’d pursue criminal remedies? You mention to Johnny that his approach might backfire, since there may be some criminal penalties for running a gambling site. What state or federal crimes could Johnny be liable for and how might he defend himself?

b) You represent Harry. Harry gets word that Johnny might pursue civil or criminal remedies against him. What causes of action could Johnny have and what would be Harry’s defenses? If Harry wanted to stir trouble and he alerted federal or state authorities about Johnny’s site, what causes of action might they pursue and what would his defenses be?

c) You are an attorney representing Warren . Can he invalidate his transaction and get his money back from awesomeodds.com, his Paypal account or his Visa account. What legal recourse might he have? How likely is he to succeed? Even if he prevailed against awesomeodds.com, what challenges would he face in recovering his money?

d) You are an attorney for a banking association and are asked to represent Paypal and Warren ’s Visa Company (ignore the professional responsibility issue). What causes of action might Warren have against Paypal or Visa and what defenses do the companies have? Might they be liable for facilitating the money transfer to a potentially illegal gambling site? Could Paypal or Visa have a countersuit against Warren for using them for his gambling and do they have any policies against gambling that are enforceable?

Online Music Infringement

Cary Dapper (CD) is a college student whose passion for digital music has taken priority over his studies and the weekly parties in his dorm. CD decides that he wants to bring his eclectic taste in music to a broad audience. During a particularly raucous party, CD borrows a bunch of compact discs from his dorm buddies. He rips a pile of both his own and the borrowed compact discs onto an external computer hard drive and by the end of the evening he has almost filled up the 120 gigabyte drive. CD’s roommate, Harry Host (HH) returns early the next morning from the party, bleary eyed and not eager to return to classes.

In addition to his beer bottle cap collection, HH also has a lot of computer equipment, and uses one of his larger computers as a server and internet gateway for himself and his friends. After sharing a breakfast of leftover pizza and fish sticks from the night before, CD starts playing some of his newly ripped music collection and asks HH if he could use HH’s server to start a webcasting service, and HH quickly agrees.

CD’s online webcasts are created from the music CD ripped the night before and are featured on his site “Caryscooltunes.com’. He doesn’t play the same artist more than once an hour and avoids announcing any songs in advance. He pays the statutory webcasting royalty out of his unused beer money. Caryscooltunes.com becomes popular and it is consuming a lot of HH’s bandwidth, slowing his servers and CD’s pile of beer money is quickly shrinking. HH tells CD that he is going to enhance the service in order to start generating revenue. HH adds animated images on the site which are synchronized to CD’s webcast and starts selling home made t-shirts with album cover images through links on the page In order to preserve some of HH’s bandwidth, CD comes up with a program that users can download from caryscooltunes.com for $14.99 and capture the webcast on their home computers late at night and then play them at their convenience during the day either on their computer or on a portable MP3 player.

The scheme turns out to be very popular. HH sells quite a few t-shirts and CD has sold hundreds of downloads of his program.

The Composers and Musicians Association (CAPA) represents thousands of artists, including many who are featured on CD’s webcast and HH’s t-shirts. CAPA is not happy about the site and believes that the artists’ rights are being infringed and they are entitled to more than the statutory webcasting royalty. CAPA starts sending nasty letters and is threatening to sue.

a) You are an attorney retained by CD. CD has gotten several angry letters from CAPA threatening to sue on the basis of copyright infringement since they don’t think that he has complied with the webcasting requirements. They are also threatening to sue on the basis of CD’s software that is he is selling on the site. What causes of action could CAPA have and what defenses might CD have? What would you advise your client to do?

b) You represent CAPA. What causes of action might they have against CD and HH on behalf of the artists that CAPA represents and how likely are they to succeed?

c) You represent HH. HH thinks that he has a strong defense because he was acting as CD’s internet service provider (ISP) and that provides him with a shield against infringement claims. If CAPA sues HH for copyright infringement, would the ISP safe harbor provision of the DMCA (Digital Millennium Copyright Act) help him at all and what other causes of action might CAPA have? What defenses would HH have and how would you advise him?

Privacy

Suffolk PCs, a Massachusetts company, decides that the way to profit from its web site is to have an I.P.O.. The day the company went public, the stock rose from $10 per share to $50 per share, making all of the employees rich and happy. The I.P.O. also brought a lot of money into Suffolk PCs coffers and they engage in a judicious marketing campaign to increase sales. Suffolk PCs has promising earnings and both the shareholders and the company are happy after the first quarter, with the stock rising to $80 per share.

The second quarter looks just as promising as the first. Soon, however, the stock price starts to dip, even though the overall stock market has been growing. Prices start dropping from $80 per share to $30 within just a few weeks. A worried shareholder calls the investor relations department and asks if the rumors are true about the C.F.O. and his loathsome disease or the web server that is run by hamsters running in a wheel? Some diligent research reveals a few very nasty postings on some of the investor sites on the web. Many of them were started by "rstuffisbetter@stinkycomputers.com" and "rumormonger@shortseller.com." Unfortunately, both return addresses were false and do not leave you with any real clues.

The stock price continues to tumble and Suffolk PCs corporate counsel decides that it is time to take serious action. He subpoena's the investor sites for the identity of people making the false, disparaging postings. The little that the web sites reveal is that the people making the postings are in Canada . The site has a disclaimer that expressly disclaims liability for anything posted by third parties

a) You are corporate counsel for Suffolk PCs. What legal action can you take against the web sites that hosted the postings? Can you compel them to reveal the identities? What causes of action do you have against the people who posted the false rumors, which sent the stock tumbling? Can you sue someone who posted something from Canada ? If you do not have recourse against the web host or those who posted the rumors, what can you do online to mitigate the damages? Do you have any potential liability to shareholders since the stock has taken such a beating?

b) You are the content provider that hosts the investment postings that had the rumors about Suffolk PCs. Should you reveal the identity of those who posted the false rumors? Do you have an obligation to maintain the privacy of those who post messages? What are the long-term implications to your site if you do reveal the names. What are the potential causes of action against you for the postings? Is there anything that you can do to help mitigate damages?

c) You are "rstuffisbetter@stinkycomputers.com" and "rumormonger@shortseller.com." What causes of action do you expect that Suffolk PCs might have against you? What defense could you raise? Can you compel the content provider to keep your name private? Would you have a cause of action if the content provider reveals your identity? Can you avoid the lawsuit since you posted the rumors from Canada ? Is there anything that you can do to mitigate damages?

Professional Responsibility

Charlie Chatter, esq. is an avid Internet surfer. Charlie recently passed the Massachusetts bar exam and set up shop soon after swearing in. He has not been able to bring in as many clients for his general solo practice as he expected, so he spends much of his time perusing the latest online offerings. Charlie realized that he might be able to enhance his client base through the Internet. He sets up a web site at "www.greatlawyer.com." The web site has general information about how to contact Charlie and also a few bold claims: "I've never lost a case," and "none of my clients has been unhappy with my advice or my fees." One little item that Charlie forgot to mention was that he never had a case, nor any clients.

Charlie soon discovers the magic of chat rooms and decides that they might be a great place to find some clients. He notices the dialogue in the chat room called "married but miserable." Charlie thought that he might have a great solution for users of the chatroom and posts the following: "Don't be unhappy any longer - I can help you get a quick and easy divorce - visit my web site at www.greatlawyers.com."

A few days after his posting, Charlie gets a call from Patty Prenup in California . Patty is tempted by Charlie's advertisement and wants to know if Charlie can help her get a divorce. Throwing caution to the wind, Charlie is eager to be retained by his first clients and tells Patty that he can help her for just $200. They correspond via e-mail to resolve the details and fill out the paper work via fax.

Soon after she is divorced, Patty realizes that her ex-husband got most of the assets, even though she had been supporting him for several years. The ex-husband also got title to their house and full custody of their dog, Pookie. When Patty mentioned this to a friend who is in law school, the friend advised Patty that Charlie may not have done everything that he should have.

a) You are Patty. Do you have any recourse against Charlie for his ad in the chat room or his web site? What about the fact that he is only licensed in Massachusetts ? Did Charlie create an unjustified expectation about his services? What causes of action would you have?

b) You are Charlie. Soon after you help Patty wrap up her divorce, you get a message from the Massachusetts Board of Professional Responsibility regarding your web site and chat room posting. What might they object to? Do any of the newer rules (10/99) of professional responsibility give you more leeway in terms of client solicitation? What about advising a client in California - could that cause a problem? Finally, what causes of action do you expect that Patty might pursue against you?

c) You are the Massachusetts Board of Professional Responsibility. What course of action should you take against Charlie? Do the new rules of professional responsibility give him more freedom in advertising? Should he be advertising on a chatroom? What about his domain name and the content of his web site? Do you have any recourse against him for advising a California client? Can you take any action against him for his handling of Patty's case before she complains?

SPAM

Suffolk PCs wants to take advantage of e-mail marketing. They set up a page on their web site, allowing consumers to opt in to their e-mailing list to learn of upcoming specials. Peter Cates (P.C.) is an avid online computer shopper and signs up to be on the Suffolk PC e-mailing list. Before long, there were over 30,000 names on Suffolk 's e-mailing database. Suffolk PCs hires Sales Promotions And Marketing (SPAM) to create and execute an effective e-mail marketing campaign based on the list. SPAM let Suffolk know that they had managed the e-mail campaigns of several e-commerce businesses.

The planned e-mail campaign used Suffolk PCs in the return address and had a subject line of "Special deals at Suffolk PCs." The content listed a few specials and had links back to the Suffolk PC web site. SPAM transposed a few digits while creating Suffolk PCs e-mail ad, so a $419 monitor special actually said $149 in the ad. SPAM also upgraded their e-mailing software to better serve clients like Suffolk . Before Suffolk , client's e-mailing campaigns never exceeded 5,000 names. Unfortunately, SPAM's programmer did not realize that the new software had a few major changes and the e-mailing did not go quite as planned. P.C. and several other people were barraged by over 1,000 duplicate messages each. The mailing lists also got a little tangled and some people on other 'opt out / do not mail' lists were inadvertently e-mailed with Suffolk 's ad. Soon P.C. and other recipients had jammed e-mail boxes, filled with Suffolk PC's ads.

Suffolk PCs faced a customer service nightmare. Their phones would not stop ringing from recipients of the ad. Some people wanted to know where they could get the $149 monitors, since they were listed for $419 on the web site. Others complained that their mailboxes were jammed. Some complained that they were specifically on a "do not mail" list and should never have received an e-mail ad in the first place. A few Internet Service Providers called since their servers were being overwhelmed by Suffolk 's e-mail. The ISPs were threatening to filter out any future e-mail from Suffolk PCs because they were now on a list of known junk e-mailers.

a) You are in house counsel for Suffolk PCs. What kind of recourse do you have against SPAM? What will you do to mend your relationship with your customers? What about the monitor advertised for $149 which should have been $419? What do you expect in terms of potential liability from the recipients of the e-mail and what can you do to reduce your exposure? Do the ISPs have any potential cause of action against you?

b) You are an attorney retained by SPAM. You learned of the problems with the e-mailing campaign and have been unable to get through to someone at Suffolk PCs. What do you anticipate as your client's potential liability for the e-mailing campaign? Does your client have any liability for the typo in the monitor price? What about liability from ISPs? Do you have any recourse against the software company or your programmer? What legal steps can your take in the future to avoid exposure for this type of problem?

c) You are P.C. Your e-mail server is overwhelmed by the Suffolk PCs e-mailing. You cannot access critical correspondence, nor can you send out messages. Your ISP is threatening to deactivate your account since you gave out your e-mail address to a spammer. What legal recourse do you have against Suffolk PCs? Against SPAM? Against your ISP for not filtering the messages and for threatening to deactivate your account? When you finally open one of the messages, the $149 monitor price looks appealing, but you are disappointed to find that it is listed at $419 on Suffolk PCs web site. Can you insist on the $149 price?

Taxation

In 1998, co-founders Charlie Brown and Lucy Coy, along with four employees, launched New York Personal Computers (NPC), a C Corporation, with its headquarters at 6^th Avenue, New York, NY.Within two years, NPC had achieved phenomenal growth, with revenues in excess of $4 billion dollars in 2000.NPC owned 65% of the Northeast and Canadian PC market and employed 4,000 professionals in the United States and Canada.

NPC sells and distributes custom built PCs and it’s own proprietary security software through its own retail stores, catalogs, and third-party retail stores like Circuit City and CompUSA.In order to expand NPC’s existing client base and compete against the likes of DELL, Gateway Computers, and Amazon.com on a global level, Charlie and Lucy decided that it was time for NPC to formally engage in electronic commerce and expand their operations into the European and Asian markets.

Charlie and Lucy have formally requested that NPC’s Board of Directors allow NPC to establish four commercial websites.Each website would target a particular country/region.The four targeted countries include the United States, Canada, France and Japan.With respect to France and Canada, Charlie and Lucy propose that the NPC does not open regional offices in those locations, rather that they contract with local ISPs to lease a server in each jurisdiction that can host their commercial website.For the time being, Charlie and Lucy suggest that all online orders should be fulfilled from either their Canadian or US distribution centers.In the event that NPC is able to attain reasonable growth and profitability in the European and Asian markets, within the first year then plans could be made to open small satellite offices in both Paris and Tokyo.

a) You are an attorney representing NPC. The CEO has asked you for tax planning advice to decide what the tax implications would be for having a website in four different international jurisdictions.Discuss whether or not there are any tax issues, if so, where.Additionally, discuss the tax implications to the website customers.Also focus on the tax consequences of only distributing products from the U.S. and Canada .

b) Charlie walks into your office and thinks that perhaps NPC should consider setting up all of the servers in Bermuda.Charlie suggests that since Bermuda is a tax haven – then by having the servers there – NPC would be absolved from paying any taxes for any transactions.How would you advise him to proceed from a legal perspective to best protect NPC. Even though Charlie came to you for tax/legal advice, what business questions would you suggest that Charlie ponder and why? Assuming that the idea is still a flop, can Charlie do anything to minimize NPC’s potential tax liability?

c) Lucy wants NPC to consider not only selling products on the website but also IT consulting services.Discuss what the tax implications for a company are with respect to selling products and services from both a U.S. and International perspective.Given the targeted countries, should NPC consider another location in order to get a more favorable tax treatment.

3. Outline of Research Paper

Your outline is due in class on February 9, 2008. The outline should elaborate on the issues that you will be discussing in more detail, what sub-issues you are going to examine and the sources selected for your research.

4. Presentations

Every member of the group will present an argument based on their paper for fifteen minutes. The argument will consist of a very brief description of the facts followed by the cause of action / potential liability and defenses and finally the analysis of why you should prevail.

Be prepared to present your arguments in class using a presentation software application like Powerpoint. The class will then briefly discuss the arguments and decide which party should prevail. Your grade for the presentation depends on your analysis and presentation, not on whether the class decides you are the prevailing party. After your presentation, you should take the feedback from your audience and make any final adjustments to your paper.

5. Final Date Research Paper is Due

Your research paper is due one week after you make your class presentation. Please hand in two copies of your paper as well as a diskette containing your paper, which describes the type of word processing tool you used.

F. Final Grade

Several factors will go into determining your final grade, including the quality and degree of difficulty of: class attendance, class participation, weekly assignments, class presentation, including assistance to other students, and the research paper.