Information Technology and the Law

(1) Should the Court adopt the law/economics professors’ view?

(2) If the Court does adopt the law/economics professors view, how should it resolve the case? (Presumably the Court would remand the case back to the lower court, with some instructions about what procedure to use, such as which questions of fact to resolve, and how the case should be resolved based on those factual findings. But what, specifically, should the Court say?)

(3) Do you agree with the IEEE brief’s criticism of the 9th Circuit’s Grokster opinion?

(4) Do you agree with the IEEE brief’s criticism of the 7th Circuit’s Aimster opinion?

(5) What do you think of the IEEE brief’s “active inducement” standard? What would be the consequences of adopting it, for this case? For other technology vendors?

(1) What test does the brief propose for contributory infringement? For vicarious infringement? What do you think of the tests it proposes?

(2) The brief focuses on Grokster’s business plan, and on the fact that it profited (allegedly) due to infringement. What are the implications of making liability hinge on profitability and business plans?

(3) The brief argues that Grokster “deliberately and affirmatively disabled existing legal and practical mechanisms for controlling infringement”. If true, how much difference should this make?

(4) The brief argues that Grokster “could prevent infringing uses while allowing [all] noninfringing uses to continue”. Do you think this is true? If it is true, how much difference should it make?

(1) Did the court properly construe the Betamax precedent? If not, what did it get wrong?

(2) Normatively, should the legality of a dual-use technology be determined by the kind of cost-benefit analysis, or balancing test, that the Aimster court proposes? (See, e.g., the first full paragraph of page 18.)

(3) What should be inferred from Aimster’s use of encryption? Does the use of encryption constitute evidence of a desire to avoid learning about infringing uses of a system, in general? In the specific case of Aimster?

(4) What responsibility should a technology designer have to create a design that hampers infringement? If there is a very cheap and simple redesign that would effectively prevent infringement, should the designer be required to do that redesign?

(5) Did Aimster’s lawyers do a good job?

(6) Did the court get this case right?

(1) Did the court get the Fonovisa case right?

(2) Did the court get the Napster case right?

(3) Did the Napster court properly construe and apply the Betamax prececent?

In reading the Sony opinion, you may notice occasional marks like this: [464 U.S. 417, 421]. These mark the beginnings of the pages in the opinion, as it was printed in the official opinion books. “464 U.S. 417″ identifies the Sony opinion (which is in volume 464 of the Supreme Court opinion books, starting at page 417). The last number (421 in the example above) is the page number in the original opinion.

It’s a good idea to highlight these page numbers as you read the opinion. That way, you can quickly find a given page number as we discuss the opinion. Remember that the number marker in the text marks the beginning of that page.

As I said in class, you’re free to choose any topic for your weekly essay. Below I’ll list some example topics for the coming week. Think of these as possibilities, not limits.

(1) The jurisdiction cases we read made distinctions between active and passive web sites. Given today’s technology, where should this line be drawn? Or does it make sense not to draw this line at all, but to use some other criterion for deciding when a court has jurisdiction over a site operator?

(2) There are specialized courts of appeal for certain topic areas. For example, the Federal Circuit hears appeals of patent and trademark cases. Does it make sense to have a specialized court for Internet disputes, or for technology disputes? Or is it better to stick with the geographically-defined appeals courts?

(3) Many jurors and judges in technology cases will have to resolve factual questions based on technical evidence. How much confidence do you have in their ability to do so? Is the detailed-evidence problem worse in technology disputes than in other disputes? If you lack confidence, what would you do about this problem?

(4) Copyright law makes a distinction between an idea (not copyrightable) and expression (copyrightable). Does this distinction make sense to you, from a theoretical standpoint? Is it likely to work in practice?

(5) The Wu paper suggests that copyright law adjusts to each new technology in the same general way. Pick a current technology, such as the Internet or P2P file sharing, and project how copyright law will adjust to it. Will the Wu paper’s model be followed? If so, what specifically is likely to happen? If not, why not?

These are big topics, and we’ve asked you to write small essays. You won’t be able to say much in the space you have, so just concentrate on saying one or two things well. You won’t be able to give anything like a complete answer to any of these questions in the allotted space; but perhaps these questions will trigger your thinking.

Alternatively, you can pick a smaller question and answer it more thoroughly. It’s up to you.

Welcome to the course weblog for COS 491: Information Technology and the Law, for the Spring 2005 semester at Princeton University. Here you’ll find weekly writing by students in the course.

Everyone is invited to comment on the writing here.