» Updates
Note: This is the webpage for a class from the past that has ended. Information about current classes is available here.
Schedule note: On Tuesday, February 6, we will be in room 202 so that the Career Services office can use our normal classroom for mock interviews.
» Overview
This is a short survey minicourse in internet law. It is not an exaggeration to say that the internet has changed almost every area of modern life, and law is no exception. We’ll study the computer and network technologies underlying the internet, how those technologies are challenging the assumptions underlying pre-internet law, and how judges, policy makers, and private actors have responded to those technologies. It’s easy to commit malpractice today by failing to understand how the internet changes legal rules and legal strategies — a lawyer who sends a trademark threat, for instance, without advising her client of the Streisand effect is a lawyer who has failed to serve her client — but by the end of the course, you should be prepared to sort through the legal issues in a case with an eye toward how the internet changes things for your client and for the law.
» Class meetings and office hours
We will meet on Tuesdays from 3:10 to 5:10 p.m. in room 102. Because this is a one-credit minicourse, we will meet for the first seven weeks of the term; if we need to cancel a class due to snow or some other conflict, we may extend into the eighth week.
Outside of class, I don’t have set office hours, but you are always welcome to stop by my office (room 210) and chat or just grab some candy. This semester, I should be in the office most Monday, Tuesday, and Wednesday afternoons, and some Thursdays; if you’d like to set up a specific time to talk, please email me at roger.ford@nulllaw.unh.edu.
» Materials
The casebook is James Grimmelmann’s Internet Law: Cases and Problems (7th ed. 2017). It’s available in two versions: from Semaphore Press as a downloadable PDF with a suggested price of $30, and as a $65 paperback edition from Amazon. Semaphore Press uses a publishing model that differs from that used by traditional casebook publishers, which you can read about on their website. (The price for the paperback version includes the suggested $30 for the PDF edition, so if you buy the paperback version, feel free to download the PDF too without paying by using the “freeride” button at the bottom of the payment page.)
In addition to the casebook, I will post links to other readings and assignments on this site. I will not be using Canvas or a similar system.
» Attendance, participation, and evaluation
Regular attendance is required, and under the standard ABA rules, you may be barred from taking the examination and receiving credit for the course if you miss more than 20% of class sessions. Attendance will be taken by sign-in sheet, and signing in for someone else is, as always, academic misconduct. An occasional absence is fine, but please let me know in advance.
Because this is a class centered on discussion, it is critical that you come to class prepared, having read and considered the assigned materials. I cannot stress this enough: If you do not want to be an active participant in class discussion, do not take this course. Participation is required, and you will not receive a passing grade if you do not contribute meaningfully to the discussion.
Your course grade will be based on your class participation and discussion, along with a series of short writing exercises we’ll discuss in class.
» Competencies
In 2013, the faculty approved a list of competencies that are important to the practice of law. For a list of those competencies, indicating which will be covered in this class, click here.
» Schedule and assignments
Last updated: February 6, 2018.
I will fill in the following list of assignments over the course of the semester.
Week 1: Introduction and the nature of cyberspace. Read this syllabus and the introduction, chapter 1, and chapter 2.A of the casebook. (This is a little longer than I would normally assign for one class. A lot of this is background; read these parts for basic understanding, without worrying about every little detail as you might in a normal law-school class.) Also read and spend some time thinking about the 5thWheel problem on pages 681–682 of the casebook.
Writing assignment 1. Read the 5thWheel problem again. Write a short reaction paper (aim for about 750–1,000 words) assessing the Commission’s actions under Johnson and Post’s framework for evaluating the legitimacy of a regulatory action. Email your paper to me (as a PDF with the filename “[your last name] assignment 1.pdf” and the email subject line “Internet Law assignment 1”) by Saturday, January 27 at 6:00 pm. Prioritize clarity and thoughtfulness over formality and adherence to norms; no need for footnotes or citations or anything like that.
Week 2: Jurisdiction. Read the rest of chapter 2, except please skip the note on the dormant commerce clause and the Overstock.com and Penguin Group (American Buddha) cases. Also read Equustek II, which was decided too recently to have made the casebook.
Writing assignment 2. (This is all true.) When I was practicing law, I represented a trademark owner whose trademark rights were frequently infringed. My client sold, among other things, car insurance. One defendant placed Google ads for when users searched for “[the trademark] insurance”; when a user clicked on the ad, it took them to a website that used our client’s marks and advertised car-insurance quotes. The user could enter their zip code and get offers for what the site claimed was car insurance from our client; instead they would get calls and emails from a bunch of random insurance companies, none of them our client.
As a test, I put in a San Francisco zip code and, for days, got dozens of calls and emails offering car-insurance quotes that assumed I lived in San Francisco. So we sued in the Northern District of California. The plaintiff trademark owner was located in New Jersey but operated around the country. The defendant, it turns out, was located in Las Vegas, Nevada. We (the plaintiff’s lawyers) were located in Washington, D.C., and San Francisco.
The defendant moved to dismiss for lack of personal jurisdiction. How should the court have ruled on the motion, as a matter of law and policy? Would it change things if the defendant was located in Brazil? Write a short paper answering those questions. Follow the formatting and submission guidelines for assignment 1 (except submit your response sometime before class on Tuesday, February 6); please remember to format your file as a PDF, and please put your name and the name of the assignment somewhere in the text so if I print it I’ll know whose it is.
Week 3: Speech. Read chapter 3.A (skip the note on cryptography and everything after it), 3.B (skip everything from Blu-Ray problem on page 146 up to the start of Gawker Media), and 3.E. The material on § 230 is the single most important piece of this course — learn it, know it, live it.
Writing assignment 3. Read this story from yesterday about Seattle telling Facebook it is in violation of a city law requiring disclosure of who buys election ads. Write a short paper answering two questions: (1) Is Facebook immune from liability under § 230? (2) Let’s say a member of Congress wanted to add campaign-finance laws to § 230’s list of exceptions. Is this a good idea? What are the best arguments for and against doing so? Be sure to consider the perspectives of everyone involved — candidates, voters, platforms like Facebook, and so forth.
Follow all the same formatting and submission guidelines we’ve been following, and email me your paper sometime before class on February 13.
Week 4: Privacy. Read chapter 4.A through Riley, 4.D, 4.E, and 4.F through Google Spain. With apologies, this is a little long; privacy law is an expansive subject and we’ll be speed-running through it in two hours.
Week 5: Access to computers. Read chapter 5. Spend some time thinking through the SeaSells problem (page 337) and the LineJump problem (page 361).
Week 6: Private power and network neutrality. Read the following portions of chapter 9: from 9.A, the two cases and the Spam Posse problem; all of 9.B; and from 9.C, the introduction, Verizon v. FCC, the brief history of broadband internet regulation, the FCC order and dissent starting on page 587, and the DoubleNet problem.
Writing assignment 4. A lot of people say that there are four big tech platform companies today: Amazon, Apple, Facebook, and Google, with Microsoft sometimes included as a fifth. They started in different businesses — selling books or computers or running a social network or a search engine — but have gradually come to compete with each other in markets like phone and tablet hardware (everyone but Facebook), cloud-computing infrastructure (Amazon and Google and Microsoft), advertising (Google and Facebook), streaming audio and video (all five), and brick-and-mortar retail (Amazon and Apple and Microsoft).
Do any of these companies present a threat that antitrust law should be worried about? Or does the experience of Microsoft and MySpace suggest that no tech company can acquire market power? (Or something less extreme than that?) Make an argument about one of the companies or convincingly argue that none of them are a problem. Bring plenty of detail and facts to bear; don’t just make conclusory assertions. Email it to me sometime before our last class.
Week 7: Beyond the internet. Read chapter 10.B (on defective software); the note on Bitcoin, Ulbricht, and Munchee from this draft section on blockchains; and chapter 10.D (on the physical world).