Information Technology and the Law

(1) The Verio court ruled that website Terms of Use (TOU) binding on a visitor, if the visitor knew that the TOU existed and that the TOU claimed to bind everyone who visited the site. Was this the correct conclusion?

(2) Does the Verio court’s trespass to chattels ruling go beyond the Bidder’s Edge ruling? If so, is the extension of trespass to chattels justified?

(3) Was the Verio court correct to find a violation of the Computer Fraud and Abuse Act?

(4) Do you agree with the ruling in Eisenberg?

(5) Suppose that in Eisenberg, rather than sending the disabling code update through the mail on a floppy disk, the update had been delivered by downloading, after asking the system’s user to “click here to download updated software”. Should this change in the facts change the result of the case?

(1) In thinking about whether to apply trespass principles to web pages, how much does it matter that people talk about pages using words like “site”, “visit” and “home” that are normally associated with real property?

(2) Do you agree with Hardy that traditional theories of property support the application of trespass principles to web sites?

(3) Burk argues that in the trespass to chattels cases, the courts, while pretending to apply trespass to chattels, are really creating a new kind of trespass tort for cyberspace. Is this the right interpretation of the cases we have read?

(4) Looking back on the trespass cases, and on Hardy and Burk, what is the best view of the scope and limits of cyber-trespass?

(1) In the Thrifty-Tel case, most people found the ruling against the Bezeneks unsurprising; but the judge’s rationale, based on trespass to chattels, surprised everyone . Do you think trespass to chattels is a good match for a case like this?

(2) Do you think it makes sense to extend trespass to chattels liability to a spammer like CyberPromotions?

(3) Some people argue that spam should be protected by free speech. Do you agree with this argument, in whole or even in part? Can you think of possible situations where anti-spam laws or court rulings might violate free speech principles? If so, where would you draw the line? (We haven’t studied free speech law much, so think normatively about this question.)

(4) Do you think it makes sense to extend trespass to chattels to web-crawling activities like those of Bidder’s Edge?

(5) In the Bidder’s Edge case, would it make any difference if you knew as a fact that eBay could easily have configured their web server to block requests from Bidder’s Edge?

(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?

The oral arguments before the 9th Circuit in the Grokster case were recorded and transcribed. They’re available in several formats:

Written transcript
Audio: MP3 format; WindowsMedia format; OGG format.

(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?