E-Mail and Memos

Year-end Note: The mean scores for each student for the semester (that is, each student's average score for the 13 quizzes) ranged from 68 (1), 72 (1), 73 (1), 75 (1), 76 (1), 80 (3), 81 (1), 83 (1), 84 (1) -- a mean of those means of 77.5.

Grades ranged from 55 (1), 78 (1), 82 (1), 83 (1), 84 (1), 85 (4), 86 (1), 87 (1) -- a mean of 81.4. The questions were:

1. [Todd Hamer] Under the Uniform Domain Name Dispute Resolution Policy there are three things that a third party must prove in order to force the domain name owner to submit to a mandatory administrative proceeding. Name one.

2. [Ben Mondragon]. Ben’s paper discusses six categories of the “digital divide.” Name three.

3. [Jim Oliver]. Jay Cohen operated an offshore sports gambling Web site in Antigua. He was charged with violating a law. Name (a) the statute, or (b) its short, colloquial name, or (c) briefly, why the prosecuting authority believed Cohen had violated that law.
[Brian Ekstrom] The French court orders Yahoo! to filter out offensive material available on/from its Web site. Yahoo!’s lawyers make two arguments on its behalf. Name one.

"1. the domain name is identical or confusingly similar to the mark owned byt complainant.
2. domain name holder has no rights or legitimate interest in the mark.
3. bad faith registration and use."

"Rural
American minorities
Americans w/ Disabilities"

"18 USC 1084
Wire Wager Act
Placed a bet or merger in foreign or interstate commerce"

Grades ranged from 55 (2), 70 (1), 76 (1), 81 (1), 82 (1), 83 (2), 84 (2), 86 (1).

The questions were:

1. [Brian Ekstrom] The French court orders Yahoo! to filter out offensive material available on/from its Web site. Yahoo!’s lawyers make two arguments on its behalf. Name one.

2. [Marie Jules]. The Uniform Computer Information Transactions Act (UCITA) has its opponents. They raise a number of objections/arguments. Name one.

3. [Jongwon Yi]. What is an emulator and what is its relevance to cyberspace law?

4. [Gang Yuan] There are a number of differences between the way that U.S. and Chinese law recognize and protect copyright interests in material on the Internet. Name one

"That the French ct. has no jurisdiction over a U.S. corporation. Also that Yahoo cannot possibly filter it out. Nazi memoribilia is allowable under the U.S. Constitution 1st Amendment."

"Sec. 816 allows the repossession on computer information which creates a security weakness in one's computer integrity."

"An emulator is a program that allows individuals to play videogames (like Sony Playstation games) on their computer. Bleem is such an emulator. There are piracy issues because people can download the games over the Internet."

"(1) Give plaintiff somewhat wider protection (2) Burden of proof difference (3) 'Fair use' difference"
 

Grades ranged from 55 (2), 62 (1), 68 (1), 77 (2), 78 (1), 79 (1), 80 (1), 84 (1), 87 (1).

The questions were:

1. [Lonnie Henderson, [Uniform Electronic Transactions Act]]. In the E-SIGN Act there is a laundry list of the disclosures that a consumer is supposed to receive prior to affirmatively giving her consent to receive records electronically. Name two.

2. [Lonny Kolln, MP3 Technology and the Evolving Law Around It]. What are some possibilities for Napster if an agreement regarding the copyright concerns can be reached between Napster and the recording industry?

3. [Thomas McMahon, Regulating Personal Privacy in the Information Age: Can Privacy Regulations Exist Without Interfering Ones Constitutional Right to Commercial Speech?] The Washington Post article mentions several ways that the "intelligent transportation system" is monitoring traffic. Name one of the specific methods mentioned.

". . . [N]otice of procedure to withdraw consent; costs associated with withdrawing consent"

"K between Napster and the recording industry to possible marketing schemes: monthly fee, free with banner advertising, pay possible fee per song."

"Cellular phones, radio sniffers, smart tags for cars passing tolls, on-board navigation"

Well, we're off to a good start.

Special thanks to our early presenters: the two Lonny/ies, Tom and Shanon. That's always a brave thing to go first, especially before having finished work on your papers. Everybody did a very nice job and set a good standard for those who follow.

And, speaking of those who follow next Wednesday evening, April 4: Although at one point I indicated I wanted the papers today from those who present next Wednesday, that idea was, of course, nuts. Tomorrow (the regular time) makes more sense all around.

However, don't forget to include with your paper

* (1) the cite/link to the additional reading (probably something that is already a link from your paper; a case, statutory provision, excerpt from a law review article, or whatever), and
* (2) the quiz question you want me to use on your paper and material.

NOTE FOR EVERYONE RE: PAPERS

1. The deadline is 4:00 p.m. tomorrow, Friday, March 30. Put them on Jess' desk. (She may not be there.)

2. Recall that I requested you provide me both (a) a copy of your paper, and (b) a disk with it in electronic form. (Now, if you are able easily to put that into HTML for me, great. But you've got enough to do right now without having to learn how to do that if you don't already know. So don't worry about it.)

3. As a sylistic suggestion, always (a) put a heading/title of some kind on anything you write, including this paper, (b) put your name on it, (c) it's a good habit to always use the date, and (d) don't forget to number the pages (so when I drop it I can put it back together again). (Once again, if you don't know how to have your word processor number pages this is not the time to learn.)

OK, gang, I've screwed up -- again.

It's not serious, I hope. But what I did is to totally eliminate the first week of April from our seminar schedule. Chalk it up to approaching dotage and lack of sleep.

Anyhow, we need four presenters for April 4 and three for April 11.

See my e-mail to you from two days ago ["CLS01/Quiz Feedback Thu, 22 Mar 2001 10:26:32]. References to "April 11" should have been "April 4" and references to "April 18" should have been to "April 11."

The subsequent e-mail [CLS01/Presentations Thu 22 Mar 2001 16:09:25] still stands.

Three people requested April 4 or April 11. I am operating on the assumption that those who chose Apirl 11 did so because of what the memo said about the risks associated with chosing April 18 -- not because they wanted the 11th rather than the 4th.

Since we need four for April 4, I am arbitrarily picking our fourth alphabetically: Brian Ekstrom. The others, who selected either the 4th or the 11th, are Marie Jules, Jongwon Yi, and Gang Yuan.

That leaves, for April 11, Todd Hamer, Ben Mondragon and Jim Oliver.

We will plan on a recap and informal discussion over dinner at my house for the evening of April 18. This will give you, as promised, a little additional time at the end of the semester to study for finals.

Here is some information about the presentations that is applicable to all -- although especially those presenting March 28.

1. Our first set of presenters are: Lonnie Henderson, Lonny Kolln, Tom McMahon, and Shannon Small. They are scheduled for March 28th. They will present in alphabetical order (unless they agree among themselves to do it otherwise). You (and I) will give them recognition for the fact that the papers they will be working from are being provided to us 5 days before the "first final drafts" are due.

2. They (and you when it's your turn) are to get to me (a) the best current draft of the paper that they have by Monday afternoon, March 26, at 4:00. This can be on a floppy, or e-mailed, as it will go directly to the Web where the rest of you can find it. (For the April 4 and 11 presenters, please have all material to me by the Thursday afternoon preceeding the Wednesday you are presenting. That way all seminar participants can have access to it by Friday and the weekend.) (b) There should also be the URL (Web address) of about 20 pages of additional reading. This would, normally, be a case or other basic document to which your final paper will have a link. And, finally, (c) a draft quiz question related to material in your paper (and/or the additional assigned reading).

3. Plan on taking no more than 15 minutes for a (mostly) uninterupted presentation. Obviously, it's more interesting if you don't just read the paper. But how you use your time is up to you. The remainder of each presenter's half-hour involves the presenter leading a discussion: taking questions from the other participants (whose obligation is to have some), and putting questions to them. In prior seminars, some presenters have chosen to use PowerPoint or other supplements; others have used role playing and games. Such innovations won't affect your grade, aren't even suggested, let alone required, but represent an option available to you if you wish.

4. To remind: Your "first final draft" (described in the online writing instructions as "the best work of which you are capable. This draft is solely your work product, and it is, therefore, the major part of the research paper process for purposes of assigning a grade")is due by March 30 at 4:00 p.m. I strongly recommend you re-read at this time the instructions, suggestions and explanations on the seminar Web page called "Writing Assignments."

Grades ranged from 55 (1), 62 (1), 73 (1), 78 (2), 81 (1), 82 (1), 83 (1), 84 (1), 85 (1).

The questions were:

1. In the first article assigned, Clay Shirky’s “What Is P2P . . . And What Isn’t,” what does the author choose to make the “distinctive” quality of “P2P”/or, otherwise put, how does he define “P2P”? [Note: “peer-to-peer” is not the answer.]

2. Ian Clarke is the person whose interview makes up the second article: Richard Koman, “Free Radical: Ian Clarke Has Big Plans for the Internet.” In that article/interview Clarke is quoted as saying, “Freenet in some ways is the realization of the original creators of the Internet.” What does he mean by that? Or, otherwise put, what is the distinctive quality of Freenet?

3. Napster made an argument as to why its users were not violating the copyright law. 3(a). Why was it necessary for Napster to make any argument with regard to the potential copyright violations by its users? 3(b). What was that argument and how did the 9th Circuit rule on it?

"P2P is a class of applications that takes advantage of resources -- storage, cycles, content, human presence -- available at the edges of the Internet. Because accessing these decentralized resources means operating in an environment of unstable connectivity and unpredictable IP addresses, P2P nodes must operate outside the DNS system and have significant or total autonomy from central servers.

"That's it. That's what makes P2P distinctive."

"He talks about the fact the Internet & cockroaches were the only things that would survive a nuclear war. (At least that was the original idea.

"Under a Freenet system the more popular an item the more places it is able to be found. Also if 100 people want a document that is in the U.S. and they are in England it only has to be sent over once. In this way Freenet helps cut down on the amount of bandwidth being used."

"3a) It was necessary for Napster to make an argmt w/ regard to its users' alleged copyright violations b/c they were charged w/ contributory & vicarious infringement -- both have to do w/ their relation to their users' violations.

"3b) Their argument was fair use. The ct ruled substantially against Napster but reversed & remanded in part (the part to . . . [rest is unintelligible; but there was enough here. In general, of course, you get no credit, or negative credit, for unintelligible writing.])."

Grades ranged from 55 (1), 78 (1), 79 (1), 82 (1), 84 (1), 85 (4), 86 (2).

The questions were:

1. Network Solutions v. Clue Computing (the first case assigned) was actually occasioned by a conflict between Clue and Hasbro. What was that conflict and how did Network Solutions get caught up in it (substantively, not procedurally)?

2. The Federal Trade Commission does not normally concern itself with obscenity and pornography. What was the ostensible reason for its concern about the operations of Audiotext Connection, et al.? Federal Trade Commission v. Audiotextconnection.

3. Similarly, the U.S. Department of Transportation normally leaves the regulation of telecommunications to the Federal Communications Commission. Why did it have any interest in Virgin Atlantic Airways Web page?

4. The Nevada statute (the last document assigned) provides for three circumstances under which it is perfectly OK to send e-mail advertisements to someone. Name any one of the three (or more if you wish).

"Conflict was over a domain name dispute. Network Solutions got involved as the domain registrant & was going to take aways the domain name from CCI unless they could prove valid trademark. CCI got an inujunction in a Boulder, CO court."

"FTC got involved for false advertising & unfair trade practices. Website would connect user supposedly to Moldova (in reality Canada) & charge $2 a minute. Advertised free nudity -- but consumer was damaged in scam."

"It concerned itself b/c of a Virgin Internet advertisment -- which was determined to be a false or misleading advertisment."

"There already exist a business or personal relationship.
The message was requested by the receiver.
The advertisement was clearly an advertisement."

I have now picked a tentative date for the final. Everyone had an opportunity to e-mail me your choice of dates. About half of you did so. Based on that data April 30-May 3 would conflict with scheduled exams of almost everyone. May 4 would provide three days in a row of exams for too many. The only day with no conflicts is April 27 -- and even that will create three in a row for one of you. But that seems to be our best bet. And the date has the added benefit of getting this little exam out of the way early so you can concentrate on the others.

[Original draft: As you know, (a) there will be a final, and (b) the date has not yet been scheduled.

I am advised by the main office that we can pick our date. But they would, of course, like for us to pick one that does not require scheduling make-up dates. (That also takes on significance in terms of what I'm thinking of doing substantively with the exam.)

The exam period runs April 25 through May 4. All exams are at 8:30 a.m.

So please let me know as soon as possible which of those dates you (a) definitely could not accomodate because you have another exam scheduled that day, (b) would prefer not to have it, because you have another exam the day before, or after, or whatever. Hopefully, a natural choice will drop out of this process.]

This is not a final decision. I do not consider myself bound by this idea. But I wanted to share it with you as early as possible.

What I am toying with, to ease the final exam preparation burden for you, is to limit the exam's coverage to one or two weeks' worth of readings rather thant he entire semester.

You would still need to read everthing as we go through the semester. It would still all be covered, be the basis for class discussion, and contribute to your grade through quizzes. But you wouldn't need to try to master the entire body of material for the final.

The announcement of what is to be covered would be made a week or so before the exam (rather than now).

Like I say, it's just an idea.

Your reactions, as always, will help shape my ultimate decision.

Grades ranged from 55 (1), 63 (1), 76 (1), 81 (1), 82 (2), 83 (1), 84 (2), 86 (1), 87 (1).

The questions were:

1. Quill Corp. v. North Dakota. Select and respond to either of the following (one’s enough for an 85; more points if you answer both). (a) The Court discussed two constitutional provisions it found relevant. What were they? (b) What was the nature of Quill’s presence in/contact with (in what ways was it doing business in) North Dakota?

2. Brad Graham’s paper from CLS99 (“State Sales and Use Taxation . . .”). (Scoring as above.) (a) What was Brad’s “Suggested Approach”? (b) He lists five “Problems Resolved by the Seller-State Option.” Name any two. [Failing that, anything you remember from his paper may be worth something.]

3. Internet Tax Freedom Act (“Omnibus Appropriations Act of 1998”). Name any two specific provisions you recall from this legislation (i.e., this need not be a verbatim quote from memory, but “no Newt axes” will not be considered sufficiently “specific”).

4. Most organizations lobbying for corporate members push a pretty myopic (selfish) agenda. The California “Electronic Commerce Advisory Counsel” (“If I’m So Empowered . . .”) took a somewhat different position. What was it?

"The conflict was between language/application of the Due Process Clause versus Commerce Clause as they applied to taxing the out of state corp. under a use tax. Quill was sending in a catalog and selling office supplies in N.D. (It was the 6th largest office supplies distributor in the state."

"(a) Brad's approach was taxing the destination address. (b) Provides consistent tax [savings? sourcing?], allows taxing of tangible goods, more reliable since the seller would retain the taxes & return them to the state. Paper discusses all the different pros/cons of different tax sources & the best remedy to come up w/ uniform way to tax the internet."

"There was a three year moritorium on internet taxes. Also there was an advisory board to set up to study possible alternatives to tax sales on the internet. The board consisted of 19 member (9 needed for a quorum). The Act also emphasized working with other countries to avoid unfair taxation of internet purchases."

"They believed that taxes were necessarily - they only wanted to ensure that any taxes or regulation was applied uniformily to both internet related goods as well as non internet related goods. Furthermore, didn't want a hodge podge or patchwork of laws as a framework to work from. Look for consistency & equality in application of the laws."

Grades ranged from 55 (2), 73 (2), 76 (1), 80 (1), 84 (1), 85 (2), 86 (2).

The questions were:

1. U.S. v. Morris was the case involving the Cornell University student who sent a worm into the Internet. What can you remember of the arguments made on his behalf (i.e., issues in the case addressed by the court) that centered on statutory interpretation?

2. The Phrack boys, U.S. v. Riggs, were offered a couple of arguments by our old friends at the eff foundation. What were those legal theories?

3. Justin Boucher, Boucher v. Sch. Bd. of Greenfield, was the kid who published “So You Want to be a Hacker” in The Last underground newspaper and circulated it around school. At what procedural stage was the case (i.e., what was the narrow issue before the court) in the opinion assigned?

4. The assigned statute (it was the last item on the list of readings), uses the congressional technique of conditioning receipt of federal funding on compliance with congressionally imposed standards. Answer either (a) what was that source of funding, or (b) what were those standards?

"He first argued that damage to be intentional. The Ct. ruled that intentional was only an adjective to access.
Next he argued that he had permission to be on those computers and that he just overused his access. The  Ct. did not allow this argument.
The Ct. said the difference in the Statute of (a)(3) [the misdemeanor charge] and (a)(5) [the felony charge] dealt with damage to the computers (exceeding $1000)."

"(1) First Amendment violation.
(2) Vagueness of statute."

"Whether the preliminary injunction should stand expelling him from school should remain in effect or not.
Lower court placed injunction preventing the expelling from occurring & appellate court overturned."

"(a) Universal assistance funds? (b) They wanted monitoring or filtering devices put on all school & library computers to prevent kids from seeing bad material & tied it to receipt of fed funds."

Grades ranged from: 55 (1), 76 (1), 77 (4), 78 (1), 80 (1), 82 (1), 83 (1), 86 (1). (See analysis of these results below. Bottom line: "Not to worry.")

The questions were:

1. State, as precisely as you can, what was the legal issue (at least the most important issue) the court addressed in the one case you read in its entirety: National Basketball Ass’n v. Motorola [and STATS]. Not the holding; just the issue.

2. [This is a double credit question; that is, highest possible points are 170-180 rather than 85-90.]

The reading assignment for this evening involves brief excerpts from 12 cases. A part of the purpose of the assignment is to illustrate the numerous electronics technologies giving rise to copyright controversies – technologies that simply were not around 50 years ago. Sometimes it’s the technology in which the copyright material is fixed. Sometimes it’s the technology claimed to be involved in the infringement.

Test your memory of them: (a) Name as many of the technologies as you can recall from these cases, and (b) provide a brief (sentence or less) description of how they were involved in the alleged copyright violation (and/or how they created a copyright problem/issue that, prior to the technology, would not have existed – at least not in that form).

"Issue: Whether Motorola's transmittal of stats & scores of NBA games was a misappropriation of "Hot News" found under AP v. Int'l News & whether a state claim of misappropriation can be applied in lieu of a copyright claim. Court said No."

The answers included an identification and comment about everything from the computer itself, software, the Internet, Web pages and links, through bulletin board systems, CD-ROMs, DVD, databases, encryption (and de-encryption), MP3 players, pagers, scanners, and video games.

Why "not to worry"? Everyone (who was present) demonstrated in the answer to Question Two that s/he had read the material. The sum total of class recall was impressive. I do not expect from you something I cannot do myself: bring back from memory that level of detail from that many cases.

Question One is another matter -- also not serious. But the combination of the two, and having only two questions, resulted in a somewhat lower class average score for this quiz than would otherwise have been the case -- especially given the level of class discussion you subsequently demonstrated..

The question called for you to "state, as precisely as you can . . . the most important issue" in the Motorola case. That required you to have not only read, but to have analyzed and thought about, the opinion. So it thereby inadvertently went beyond the purpose of the quiz questions (which is just to provide you an added incentive to actually read the material).

(Having confessed error, however, I should probably go on to note that this level of sophisticated legal analysis, while not appropriate to what I am trying to do with the quizzes, is precisely what I will be trying to do with the essay portion of the final; i.e., analytical ability, and the ability to apply what you know, rather than mere recall.)

Many of you characterized the issue as whether Motorola (or STATS) violated the NBA copyright/s. As will come out in our discussion of this case next Wednesday evening (February 21), the copyright questions were not actually contested all that much. The games are not subject to copyright. The broadcasts are. But what Motorola was doing did not come remotely close to copying the broadcasts. So the question became whether state law remedies were available to the NBA -- or whether they had been totally pre-empted by the federal copyright law. I won't go on with this now; we'll do that next Wednesday. But this should be enough to give you a start on that analysis.

In short, to the extent you did not get the grade you thought you should, I'm taking the responsibility for much of that.

Another good one!

Grades ranged from: 82 (2), 83 (1), 84 (5), 85 (1), 86 (2).

The questions were:

1. In the event you decide your research paper is good enough that you’d really like to hold a copyright on it, even though it’s unlikely you’re ever going to sue anybody, what do you need to do?

2. Section 102 of the Copyright Act lists eight “works of authorship.” (a) List any three. (b) Which of the eight did you think most bizarre as something on which one could get a copyright?

3. Section 106 of the Copyright Act lists six “exclusive rights in copyrighted works.” List any three.

4. Maggs, Soma and Sprowl, Computer Law (West: 1992) is 731 pages long. I’m thinking of using it next semester. It seems a shame to make students buy the whole book, since we’re only going to use 227 pages from it. Can I make machine copies of those pages for seminar participants? Why or why not?

5. John Perry Barlow (“The Economy of Ideas”) argues that “information is a life form.” What on earth does he mean by that?

"Register with Copyright Office. -Application. -Application Fee $35 -2 copies. But you do not need to register to have a copyright. An original work is copyrighted when it is created or published. But registration is beneficial for legal protection against infringement."

"1) literary work 2) musical work 3)dramatic work 4)motion picture/audio visual, etc. Most bizarre: choreography or architecture."

"1 Right to copy 2 Right to distribute 3 Right to create derivative works 4 Right to perform"

"You could get permission from the holder of copyright and then you would be okay. You could also try to argue 'fair use' of the book. In that situation the test looks at what the use is. Whether it is educational or commercial. The test also looks to see if you used the whole work or part of the book. Also it looks at if you infringed on the commercial ability of the book."

"Information must move, consume, reproduce, etc. It takes on a life of its own, growing, living, dying as an organism would. In fact, information is really a formless extension of life that exists in physical form (humans, dogs, fish, etc.)."

You all are on a roll! Keep it up.

Grades ranged from: 68 (1), 80 (1), 81 (1), 82 (1), 84 (2), 85 (4), 86 (1).

The questions were:

1. Greg Abbott identifies three elements of (or, “issues in”) a conventional defamation case. Name any two.

2. It’s in the Cards (Fuschetto posted a note on a SportsNet bulletin board defaming Meneau) turned on the definition of a statutory term. Either (a) what was the term, or (b) what was the purpose of the statute?

3. Stratton Oakmont v. Prodigy and Cubby v. CompuServe involved a seemingly comparable set of facts, yet one lost and the other won. It’s not important you know which case is which, but what was the common issue in both?

4. The outcome in Zeran v. AOL (“Naughty Oklahoma T-Shirts”) turned on the interpretation of a statutory term. Provide (a) what did AOL do (or fail to do) that upset Zeran, or (b) what was the act/statute involved, or (c) what is the purpose of the statute?

5. In Louder v. CompuServe (we read only the plaintiffs’ complaint) what was it that CompuServe, or Go Graphics, or Schwartz did of which the plaintiffs were complaining?

6.  What had Jake Baker and Arthur Gonda done (the facts or their activity, not the law) that caused concern on the part of Michigan students and the FBI?

"Publication or statement, that one knows or should know is false, that causes injury or harm to one's reputation."

"It turned on the definition of a 'periodical.' The statute stated that if it was a periodical then the person had to request a retraction (correction) of the statement."

"Whether the provider was a publisher or a library-like entity. Prodigy was publisher because it edited and controlled its bulletin boards while CompuServe was library-like because it did not."

"(a) AOL failed to reasonably take off defamatory statements of a 3rd party posting on an AOL bulletin board against Zeran. (b) CDA. (c) Establish that online distributors no liability for defamation by 3rd party & not to or encourage the monitoring of content by online distributors."

"Defendants used images of plaintiffs for commercial purposes without consent. Specifically, Schwartz would photograph women (some minors) & then post them in a photo gallery where they made a profit from this service."

"Send e-mails to each other talking about abusing or doing harm to women. One posted a story on a sex bulletin board."

You receive both academic and writing credits for this seminar. It is your responsibility to confirm that the law school's official records (and mine) conform to your own expectations.

As I understand the system, it is your choice whether to receive one or two writing credits. One requires a 20-page paper; two require a 40-page paper. If you are going for one, you also receive an additional academic credit; if for two writing credits, then two academic credits. The seminar, qua seminar, is worth two academic credits. Thus, everyone enrolled in this seminar will receive either (a) three academic credits plus one writing credit, or (b) four academic credits plus two writing credits.

On our main seminar Web page, under "Participants' Research Papers," there is a column headed "Credits." Look at it. It refers to writing credits. That listing conforms to the official class list; that is, those for whom two "Credits" are listed are on the official class list as signed up for four academic credits.

However, that Registrar's list also indicates that one of you is signed up for but one academic credit, and another for two. As I understand the system, that is impossible. You can't be signed up for less than three. So it's up to you to get that straightened out.

Performance on this quiz was, by any measure, the best so far. Congratulations!

Grades ranged from: 61 (1), 76 (1), 78 (1), 81 (1), 83 (3), 84 (1), 85 (3).

The questions were:

1. Section IV (the portion assigned) of the “Options for Promoting Privacy on the NII” paper is headed “Privacy Protections in Four Economic Sectors.” Name at least three of the four.

2. What was Timothy McVeigh’s beef with the Navy (McVeigh v. Cohen)?

3. Quad/Graphics alleged that employees had, inappropriately, run up a $23,000 bill (Quad/Graphics v. Southern Adirondack Library System). What was the bill for (or, who/what was billing the company)?

4. The holding in the case involving the corrections officer’s complaint about e-mail (Wilson-Simmons v. Lake County Sheriff’s Dept.) turned on whether the e-mail was or was not what (a legal category, or concept)?

5. Stern v. Delphi involved Howard Stern’s objection to Delphi using his name in an ad. What else did the ad include of which he complained?

6. What was the Secret Service after (or, why was it called in; what was it that Jackson Games had done) in the case of U.S. Secret Service v. Steve Jackson Games?

7. What was the nature (i.e., source, or location, or content) of the data Congress was seeking to protect in the case of Reno v. Condon [Condon was the Attorney General of South Carolina]?

8. To what does “EPIC” refer (either the precise name, or an approximation based on its purpose and activities)?

Federal Government Records
Communications Privacy
Medical Record Privacy
Privacy in the Marketplace

"It inquired about and got personal information about McVeigh from AOL."

"Employees would link through the company's network in WI to access an outside line & call NY to connect to the library's Web. As a result there was $23,000 long distance bill."

"The Ct held that b/c the email was not a document or used for operations, decisions, policy, etc., it was not public record & hence not obtainable."

"Photo of him (with his buttocks exposed)."

"Info about emergency phone procedures that had been distributed on the Web by one of the SJG BB co-founders."

"Congress was seeking to protect the DMV records of individuals from being sold by states."

"Electronic Privacy Information Council (Committee). The Web site (now bookmarked on my machine) is a not-for-profit watchdog organization that keeps an eye on legislation and policy regarding liberties that may be threatened by the regulation of the Internet (of particular concern is the NSA)."

Here’s some feedback on the second quiz – with more insight into the quizzes in general.

The questions were:

1. What does Friedman mean by his concept of “the golden straightjacket”? What is its significance for a developing country? Name two of its 17 elements.

2. What is Friedman’s “Golden Arches Theory of Conflict Prevention” and what is its underlying rationale?

3. [From ACLU v. Reno findings of fact] What is “packet switching” and how is it related to one of the principal design purposes of the Internet?

4. [From  IPC/NIITF Executive Summary] What are the two extremes on the spectrum the Task Force identifies as “the core question” regarding the GII (global information infrastructure)?

5. [From Bourke v. Nissan] What activity of Nissan, in general, was it that Bourke (and Hill) were complaining about?

Here’s a sample answer one of you offered for question 1: “The golden straightjacket is what developing countries have to put on to have economic growth. They must play by the rules of the Electronic Herd.”

Scores on question 1 ranged from 55 (2), 60 (2), 80 (4), 82 (2), 85 (1)

Here’s a sample answer for question 2: “Friedman accurately points out (confirmed by McDonald’s Hamburger University) that no country with a McDonald’s has ever gone to war with another country that also has a McDonald’s. Closest case was the UK-Falklands Islands war. Note: Is the theory now destroyed due to US. Conflict with Serbia?”

Scores on question 2 ranged from 55 (2), 60 (1), 75 (1), 82 (1), 85 (5), 87 (1).

Question 3 presented a problem for those of you who were unable to bring up ACLU v. Reno with the link provided.

(a) The way I resolved this is by giving everyone who noted that fact a 75 for their non-answer – and putting a cap at 80 for those who did know the answer.

(b) Exceptions: When you are absent you get a 55 for your non-answers to all questions and therefore on the quiz itself (rather than a zero).

(c) I once heard a law professor say to a student (fortunately, not me), “Young man, you have a capacity for subtracting, rather than adding, to the sum total of human knowledge.” If you haven’t read the material but have some basis for a knowledgeable answer a guess can be helpful. But in this case clearly uninformed guesses produced scores less than 75.

On this occasion I gave you a pass (that is, because the link didn't work I didn't count off for your not having read the findings of fact from the opinion).

As a young associate, when you run into difficulty finding information, reaching someone by phone, or whatever, you normally would be expected to exercise one of two options: (1) try harder or more imaginatively to overcome the difficulty on your own, or (2) immediately tell the senior partner about the difficulty and see if s/he has alternative suggestions for resolving it within the time remaining before the deadline in question. You would not just forget about it and then whisper to the partner during trial, when s/he turns to you for a document, “Oh, by the way, I never was able to find that case you need right now.”

Links can change with no notice. Sometimes the link is still accurate, but you can’t get to the document because someone is working on the site, or there are too many accessing it at the same time. In this case, I had no difficulty downloading the assigned material from the site linked on Monday, but you did on Tuesday.

In the future, when you find a link doesn’t work I would appreciate your doing both of the things expected of a young professional: let me know as soon as you discover it (so that I can find, and post, an alternative source), and use a search engine to find an alternative location for the material on your own (as we did during the seminar session, you’ll recall, with a single, quick entry in Google).

Scores on question 3 ranged from 55 (1), 70 (1), 75 (6), 78 (1), 80 (2).

Here’s an illustrative answer for question 4: “One end you have strict structure where the government regulates everything and the other hand you have the market essentially regulate itself in the information market.”

Many did not answer. Scores ranged from 55 (6), 60 (1), 70 (2), 75 (1), 85 (1).

Question 5. One of you wrote: “Invasion of privacy for looking at their e-mail. Court agrees with trial court when it states that they had no expectation for privacy. Furthermore, information was sent on Nissan’s network – so no wiretapping charges could apply.”

Scores ranged from 55 (3), 60 (1), 65 (1), 70 (1), 85 (3), 87 (2).

Total scores on the quiz ranged from: 55 (1), 63 (2), 66 (1), 70 (1), 76 (2), 77 (2), 81 (2).

Copies of your quiz papers will be returned to you in your mail slots in order that you can (if you wish) compare your answers with those repeated here.

1. Edupage is one of the most useful single online publications for you.

It is free. There are two or three issues each week. They constitute little more than a screen or two of text.

It covers the Internet, computers and electronics generally. It researches far more publications than any of us could read, and presents brief paragraph summaries of their relevant content.

At a minimum, I want you to read the entirety of one issue so you know what you're passing by before you ignore it.

2. I would strongly recommend that you subscribe. It's easy. Just go to:

http://listserv.educause.edu/cgi-bin/wa.exe?SUBED1=edupage&A=1

provide your name and e-mail address and click on "Join the List." You'll get a confirmation, by e-mail, to which you must respond to start your free subscription. (It's just as easy, as you'll see on that page, to un-subscribe if and when you want to drop it.)

3. There is no better single way to find interesting topics for papers than by using key words to search the Edupage archives. Go to:

http://listserv.educause.edu/archives/edupage.html

(That's for 1999-2000. Earlier copies can also be searched, but I suspect you'll benefit most from the more current ones.) Click on "Search the Archives" and on the next page "Search for," fill in the term/s, and then click "Start the search!". Once you get references to past issues click on the issue and then use the Netscape "Edit" and "Find in Page" commands to go directly to the stories you want. Almost anything you find that way can make for a good topic. So you'll have lots to choose from.

Good hunting!

Nick

[Note: If this is a duplicate I apologize. Jessie didn't get a copy the first time I sent it so I'm guessing maybe some of the rest of you didn't either. -- NJ]

# # #

Let's cut back on the reading assignment and quiz material for tomorrow night.

Just finishing Friedman will take a bit of time.

Beyond that, you do need to be familiar with the findings of fact in ACLU v. Reno. It's the best description of the Internet I know. But that means, if you're already well familiar with everything in those few paragraphs you should be able to scan it rapidly (though it still requires you at least scan it to make sure).

Just read the "Executive Summary" (one page) from NIITF/IPC "Options for Promoting Privacy on the National Information Infrastructure." (We'll get back to the rest of that assignment later.)

And read only the first two cases listed on the Web site for tomorrow: Andersen Consulting and Bourke v. Nissen.

This will get us introduced to the privacy issues, with a couple illustrations, without loading you down.

Nick

Here’s some feedback on the first quiz – which will, therefore, give you some insight into the quizzes in general.

The questions were:

1. How was Jody Williams Nobel Peace Prize related to the Internet?
2. What does Friedman mean by “the Lexus” and “the Olive tree”?
3. What does Friedman mean by “the democratization of technology”? How are the elements of his concept similar to the trends described by the instructor in the assigned piece, “Law of Electronic Media: Concepts, Perspectives and Goals”?

Each quiz will be assigned a grade along the usual law school scale: 89 to 55. Each question ditto, with scores averaged (equally weighted for each question unless noted) for the quiz total.

As mentioned in class, the questions are designed to be easy. If you’ve read the material you will do well on all (or at least most) of them throughout the semester. If you haven’t, you won’t. The purpose of the quizzes is not to test your legal or analytical ability, but merely to provide you added incentive to actually do the readings.

Here’s a sample answer one of you offered for question 1: “She won the Nobel Prize for her fight against landmine use. She used e-mail to organize human rights groups on six continents to fight against the use of landmines. She was hugely successful despite the fact that many countries were against banning landmines.”

Any answer that mentioned “e-mail” and “land mines” was worth an 85. Scores on question 1 ranged from 55 (5), 80 (2), 85 (3), 87 (1).

Here’s a sample answer one of you wrote for question 2: “The Lexus – is new technology, new economy, New World expectations, a faster world. The Olive Tree – Old World, tangible assets, slower times, world defined by geo-boundary.”

Scores on question 2 ranged from 55 (5), 75 (1), 80 (1), 85 (4).

Here’s a sample answer from one of you for question 3: “Democratization of technology – means that technology is coming to the masses (people). People are getting more & better technology at cheaper & cheaper prices. It lets people communicate worldwide. Big democratic world free flow info. 99.9% off sale – electronics, etc.”

Scores on question 3 ranged from 55 (3), 70 (2), 75 (3), 80 (2), 85 (1).

Total scores ranged from: 55 (1), 62 (2), 65 (1), 70 (2), 73 (2), 78 (1), 81 (1), 85 (1).

Copies of your quiz papers will be returned to you in your mail slots in order that you can (if you wish) compare your answers with those repeated here.

To: Cyberspace Law Seminar Participants

From: Nicholas Johnson

Re: E-Mail Address Request

1. On January 4 I put in your law school mail folder a memo headed “Welcome – and assignments.” It contained both. One of the assignments, in par. 5, said, “Give me your preferred e-mail address . . .. Send me a message at mailbox@nicholasjohnson.org as soon as possible so that I can put our e-mail list together.”

2. A couple of additional paragraphs in that memo made reference to the class Web site and suggested you visit it. There you found, in “Participants’ Responsibilities and Expectations,” under “Internet and E-Mail Requirements,” a repeat of the requirement: “one of your first obligations is to get your e-mail address to me as soon as possible.”

3. Because I had still not yet heard from every participant by Wednesday, January 10, I made a special point of discussing during our seminar session the importance of your providing me an e-mail address – as well as the importance of reading memos carefully and the significance of professional standards of behavior generally (and a reminder of the assigned reading, “So You Want to Be a Lawyer”).

The memo, Web site, and seminar discussion each made clear that alternative means of communication were possible for those who do not have e-mail addresses, or have them but do not access them regularly.

As of this morning (I only check my e-mail from home), I had still not heard from roughly half the seminar participants. Not an e-mail address. Not a request for an alternative means of communication. Not, “I’m too busy now, I’ll get back to you in three days.” Not “go to Hell.” Nada.

I am surprised. I am frustrated. But mostly I’m just bewildered by this lack of response.

Any class requires communication, both ways, between instructor and students. Especially is this true in law school – an educational program almost exclusively devoted to various forms of communication. Within law school it is most important in seminars. Among law school seminars presumably those devoted to cyberlaw are the most dependent upon e-mail and the Internet.

If this were a law firm, or a court – and I were your senior partner, or a judge – you would be out on the street. Since it is a law school you are not. It is not yet too late.

But if you have not yet sent me your e-mail address I would also request of you some advice to help me in the future.

Please answer the following three questions: Why did you not respond? Was there something about the request that contributed to your lack of response? How might I improve student response in the future?

When you e-mail me your response to those questions from your favorite e-mail address I will, of course, also have your e-mail. (If you don’t have e-mail a hardcopy memo will do.)

Thank you for your prompt attention to this request.

Of course, if you are one of those who have already responded, this memo is just FYI. You need not send me your address again.

To: Cyberspace Law Seminar 2001 Participants – Eddie Chung, Brian Ekstrom, Todd Hamer, Marie Jules, Lonny Kolin, Thomas McMahon, Brian McNeil, James Oliver, Shannon Small, Jong-won Yi, Gang Yuan

From: Nicholas Johnson

Re: Welcome – and assignments
 

Welcome to the Spring 2001 Cyberspace Law Seminar. At the present time those of you listed above are the participants. I had hoped to hold the enrollment to 8 and we’re already at 11 and may add one more, but that will be it.

1. Because of the very long waiting list, if there is a possibility/probability that you will be dropping early in the semester please let me know that now.

2. As you ponder that request, know that the seminar will consist of the following assignments and responsibilities (the details of which are, or will be, spelled out elsewhere). Because of some student misunderstandings in the past, they have been toughened up a bit and are laid out for you now.

(a) During the first few weeks of the semester there will be reading assignments. (b) There will (or can be) quizzes over those readings. The results of those quizzes will count toward your grade (say, 10 percent). (c) You will go through the steps of selecting a topic, researching, outlining, writing and re-writing a seminar paper of at least 20 pages. There are a number of mileposts, or deadlines, to be met in doing this. A failure to meet them will reduce your grade and can potentially result in your being dropped from the seminar. (d) You will be expected to attend all seminar sessions. Missing more than two meetings can result in being dropped from the seminar. Thus, if you anticipate fly-backs or family emergencies coming up it is wise to hold those potential absences in reserve. (e) You will also make an oral presentation of your paper to the seminar. A failure to attend that session and make your presentation when scheduled will result in a course grade of 55. (This is because you are the seminar session that day, everyone’s counting on you, and because it is an essential element of the seminar experience that, by definition, cannot be “made up” later.) (f) There will be a final examination covering the readings and the content of your colleagues’ papers. (g) You will receive academic credit for both the seminar and the paper (i.e., 2 hours for the seminar, and 1 additional hour for each 20 pages of a paper) in addition to writing credit/s for the paper. (h) Thus, your course grade will consist of a combination of (1) your grade on the mileposts involved in completing your paper, (2) your grades on the quizzes and final exam, and (3) your seminar participation, including your oral presentation.

3. Our first seminar session is January 10, in room 125, from 6:30 to 8:30 p.m.

4. Virtually all communication between us – following this hard copy memo – will be by Web page and e-mail. Do not be shy. If you do not have an e-mail address that you check at least a couple of times a week let me know. Arrangements can be made to get you the memos in some other format.

5. Give me your preferred e-mail address for these purposes. Send me a message at mailbox@nicholasjohnson.org as soon as possible so that I can put our e-mail list together.

6. We already have a class Web page. You can get to it through my personal main Web site: http://www.nicholasjohnson.org You might want to know about that site anyway; it links to thousands of pages I’ve created, at least some of which you’ll find relevant. Once there, at the top of the page you’ll see “What’s New” And the first link under “What’s New” is to “Cyberspace Law Seminar.” That will be our seminar main Web site. (The direct link is https://www.nicholasjohnson.org/cls01) You may want to bookmark it. You will also see a link to prior CLS seminar Web sites you may want to check out.

7. Friedman, The Lexus and the Olive Tree. The only significant link from our seminar Web site at the moment is to the assigned readings from Friedman. Although the book itself is over 400 pages, there are only about 100 pages assigned. It should be available in the law school bookstore by Tuesday (January 9), and possibly by Monday, or even tomorrow.

8. By next Tuesday there should also be greater detail available from our site regarding the seminar. Meanwhile, prior semesters’ sites, especially that from Spring 2000, will give you the best insight into what we’ll be doing.