Cyberspace Law, Fall 2003

Normally Cyberspace Law has been taught as a seminar. This semester (Fall 2003) it was taught as a class (that is, with no writing requirement). Nonetheless, a student in the class prepared a "note" for one of the Iowa Law School's journals that explored an issue in cyberlaw. Accordingly, it is linked from this site even though not a part of this course. -- N.J., February 11, 2005.

Dawn M. Gibson, "A Virtual Pandora's Box: Anticipatory Self-Defense in Cyberspace," 2004.

Welcome to Cyberspace Law
Attendance, Exams and Grades
Coordinates and Assistant
Cyberlaw in China
Internet Overview
Ombudsperson
Personal Bio Assignment
Professionalism
Reading Assignments
Understanding the Internet
Web and E-mail Requirements

Hopefully your experience with this class will be fun as well as instructive and personally satisfying.

The administrative information and standards which follow below are kind of common sense. Do you take your legal education seriously? Are you in the habit of preparing before class? Fairly compulsive about attending? Make every effort to meet deadlines? Take pride in the quality of your class participation and class notes or outlines? If so, you will find little there you are not already doing.

There are, however, some details regarding the course even you will need to know.

But first we begin with a bit of an overview, and the reading assignments.

Every law professor believes her or his course is among the most important in the catalog. So you can discount a little what I am about to say.

But I really do think there is nothing more (a) timely, (b) fun, (c) rapidly changing, and (d) practical for your legal career -- that is, the next 50 years, as distinguished from my legal career during the past 50 years -- than what we're about to do together.

The Internet embodies two of the most significant changes going on today: (a) telecommunications innovations, convergence, networking and expansion, and (b) the resulting globalization of everything.

The Internet is the fastest growing anything in human history -- and there's "nobody in charge." (If that peaks your curiosity, see in this connection, Harlan Cleveland, Nobody in Charge: Essays on the Future of Leadership (Jossey-Bass 2002) -- stimulating, but not assigned, reading.) During the past decade most major global business firms have created an Internet presence. Ironically, the Internet is the platform for both (a) a rapidly expanding multi-billion-dollar commerce, with the resulting ever-growing political power of global corporations, and (b) democratization movements empowering individual citizens and grassroots movements.

As for the legal profession, the Internet (a) impacts on the practice of law, including the legal profession's increasing globalization, (b) is a means of access to collections of legal materials, and (c) is the source of whole new bodies of legal issues, conflicts, confusion and cases.

Historically, legislators, judges and lawyers have not usually needed to focus on the extent to which "the law" is tethered to a geographical "place." It was so taken for granted that lawyers seldom thought about it. Iowa's legislature, courts, and lawyers simply accepted without reflection that their authority stopped at the Mississippi or Missouri Rivers' edge. Virtually every jurisdiction and area of the law made similar, unspoken, geographical assumptions.

Now we have a "new world disorder" called "cyberspace" with neither latitude nor longitude on Planet Earth. When I've posted students' seminar papers to the Web they come as quickly to computer screens in Bangkok as in Boston, they are as "local" to Warsaw as to Washington, D.C. (And they are, in fact, getting "hits" from all around the world; as of the beginning of this semester some 134 countries.)

To the extent there is going to be a "law of cyberspace," it requires the rethinking of every area of our centuries-old, geographically-tethered legal system.

The earlier in your career you can experience the "de-mystification" of the Internet -- what it is and how you can use it, the kinds of legal issues it raises, and the kinds of solutions lawyers can offer -- the better advantaged you will be in dealing with the world you'll face in this 21st Century.

There are a number of aspects of the Internet you will benefit from understanding.  Here are some of the questions for which you will want to find the answers.

(1) What is it? How did it get started? Who runs it? How does it work? What does "hypertext" mean? How many countries are "online"? What are the relationships between phone companies, "Internet Service Providers," "browsers," and Web sites? What was the Internet before there was a "Web"? How does AOL fit into all of this? What are "modems" -- telephone and cable? What is the difference between logging in from the law school (or other University facilities) and from home? How come the Internet is so slow sometimes; what are all the factors that can affect the speed with which a Web page appears on your screen? How can parents -- or countries -- "block" sites? How can a company "do business" over the Internet? Is any business making money from its Web site; which are most profitable and why? How can so many people afford to make so much information available for free?

(2) How do I use it? What are the basics of getting an account, and the relative merits (and costs) of a local provider (like Internet Navigator) or a national/global mega-provider (like AOL) or a "free" ISP like NetZero? How do I get a "browser," log in, go to a Web page for which I know the address (URL), send and receive e-mail, participate in news groups' discussions? What are these free electronic magazines ("e-zines") and "list servers"? How do I find out what's available, and subscribe?

(3) What are the basics of making the Internet work for me; making billions of pages of information genuinely useful? What are "bookmarks" and "search engines"? Why are they so important? How do I find a site I just visited, but failed to note? How can I "save to disk" a page I find useful? How can I print a Web page? What do I have to do to save my bookmarks to a floppy disk in the A: drive rather than to the hard drive of a computer I may be using only temporarily?

(4) What do I need to know about Internet research techniques in general, and Internet legal research techniques in particular? How can I evaluate the accuracy and worth of material on the Internet? Are there special rules of citation form I need to learn ("How do you 'cite' a 'site'"?).

Earlier generations learned how to use "the library" in junior high and high school -- the card catalog and the Readers' Guide to Periodical Literature. Once in law school, we learned how to do legal research with books, and then with Westlaw and Lexis.

The general skills involved in legal research are perhaps the most practical thing you'll get out of law school. If you can do thorough, quality legal research and writing in two hours that takes others one or two days you can either go home earlier every day or charge more per hour.

Now we have yet another set of skills to learn beyond those needed for Westlaw and Lexis. Not every law office will have the commercial services; not every client can afford the extra hourly charges. And even if your client can afford them there is information on the Internet that Westlaw and Lexis don't provide. Mastery of Internet legal research skills will both save, and make, you money.

(5) Begin building your own "bookmarks." What are some of the more useful mega-sites (Web sites that are organized to get you to as many as thousands of other sites)? Legal collections? Sites more specifically related to this class topic?

(6) Are there potential cyberspace law issues that occur to you as you surf around?

(7) Finally, for those of you who are interested, what resources are available, what skills are necessary, to make your own Web page? What is Hypertext Markup Language (HTML)? How can you make a Web page without learning to write in HTML?

A very valuable add-on to this semester's Cyberspace Law is provided by one of the students, Min Zhou. She has created and maintains a Web site presenting some general background about China and Chinese law in general, and cyberlaw in China in particular. The site was first uploaded and available by the middle of October 2003, and will expand from time to time.

Note: Bear in mind as you look at these reading assignments that each is designed to cover what is, in effect, a week's worth of three, conventional, hour-long class periods. Necessarily, therefore, each involves more reading than what you would normally expect for a one-hour class.

The Casebook. Our casebook for the class is Bellia, Berman and Post, Cyberlaw: Problems of Policy and Jurisprudence in the Information Age (Thomson/West 2003), available in the law school bookstore.

Other readings. There will from time to time (such as our first class meeting) be additional readings that you will access on the Internet. Some will have been created by the instructor, most will be the work of others. If you do not have Internet access from home there are computers available at the law school and elsewhere around the UI campus.

Steve Martin often appeared as a guest on "Saturday Night Live." One of his routines involved pointing into the distance and asking, "What the hell is that?"

David Letterman has a segment on the CBS "Late Show" he calls "Is this anything?"

Theirs are the questions with which we must necessarily begin our study of cyberlaw. What is this thing called "cyberspace"? Is it anything? In what sense is there a "cyberspace law"? Why do we need to address that question more than we did comparable questions when studying contract or tort law? How might one go about approaching the task of coming up with an answer?

Although what follows are a lot of individual readings, they are both short (sometimes just a quotation) and easy going.

Let us start with the ancient fable from India, "Six Blind Men and an Elephant." At this stage our own blindness is equivalent to theirs. What do they have to teach us?

Then take a look at the very brief quotations and readings on the Web site I have titled, "Roses, Cheese and Cyberlaw." This site concludes with a couple ofvery brief quiz questions, neither of which should make your head hurt. E-mail me your answers before class.

For an example of a court's struggle with such questions, read from Chapter Two ("Problems of Metaphor and Analogy: Introductory Case Studies") pages 23-33 (which is, primarily, the court's opinion in Intel Corporation v. Hamidi), and be prepared to discuss the questions raised by the authors on pages 31-33.

Follow this with an overview from the authors of what they have in mind with this book: the first two pages of Chapter One ("Introduction"), pages 1-2, followed by pages 12-13 ("Section B. Our Approach"). Then read the opening two pages from Chapter Three ("Problems of Geography and Sovereignty"), pages 63-64, and from Chapter Eight ("Problems of Cultural Change"), pages 647-648. Jump ahead to the first page of "Section B. Cyberspace, Community, and Globalization," page 667, and then to pages 680-687 ("Section C. Cyberspace and the Formation of Law and Policy," which is primarily an excerpt from Lessig's The Future of Ideas and the related "Notes and Questions").

At that point we're prepared to go back and start at the beginning with Chapter One, ("Section C. Internet Basics"), pages 13-21 (this is primarily the description of the Internet from ACLU v. Reno). This would be a good time to reflect upon what we mean by "the Information Age." Here's a paragraph or two of mine on that subject you may find useful. Then pick up Chapter One ("Introduction"), pages 2-12, including Easterbrook, "Cyberspace and the Law of the Horse," and Larry Lessig's answer to Easterbrook: Lessig, "The Law of the Horse: What Cyberlaw Might Teach."

Obviously, your own experiences and insights regarding the Web may well be a substantial contribution to class discussion, so reflect on them before class.

Please note that there are, already, two assignments: the little "quiz" (due before class) and the "personal bio" (due soon thereafter). (These are front-loaded assignments; we will not, normally, have even such brief and easy writing assignments each week, let alone such short-fused ones.)

This week we will be concentrating on Chapter Two ("Problems of Metaphor and Analogy: Introductory Case Studies").

Note that we are doing two things with this material. (1) We are continuing last week's inquiry: "what is cyberlaw?" We are just using trademark cases, and law, as a way of talking about the issues in specifics rather than as generalities. Is there something unique about trademarks on the Web, or are the conflicts easily resolved with well established trademark law? Is there something unique about "cyberspace," or is it, necessarily, regulated by the same kinds of geographically-tethered laws (i.e., of nations) applicable to transactions in geographic space? (2) Incidentally, in the course of doing this, we will be exploring some of the basics of trademark law.

Begin with pages 33-62. This includes eBay v. Bidder's Edge, and the "Section B. Consumer Confusion and Online Trademarks" material (Brookfield Communications v. West Coast Entertainment, Planned Parenthood v. Bucci, PETA v. Doughney), followed by "Section C. Internet as Library (Mainstream Loudoun v. Loudoun County Public Library).

Given the global -- that is, non-geographically-tethered -- nature of "cyberspace" what examples can you think of in which global standards have been necessary, created and applied (with or without a governmental, "inter-national" intervention)?

Can't think of any? What about the ancient (and current) law of admiralty? Read the material to which the admiralty link takes you. Do those passages offer analogies of use to us?

Having done that, segue to Chapter Three ("Problems of Geography and Sovereignty"), which you began last week with the first two pages. This week we continue on with pages 63-82. These pages include "Section A. The Theoretical Debate" (Johnson and Post, "Law and Borders -- The Rise of Law in Cyberspace;" Goldsmith, "The Internet and the Abiding Significance of Territorial Sovereignty" and "Against Cyberanarchy;" followed by Post's response, "Against 'Against Cyberanarchy'").

Class 3. September 10 . . . and beyond. From here on out we will be progressing through the book at roughly 13 pages an hour (50 pages a week), without the kind of jumping around thought useful during the first and second week. Precise pages will be posted here shortly. But for your guidance at this time: we will be, for the most part, simply proceeding through the remainder of the book, beginning at page 83, adding, from time to time, the sections of material from the remainder of Chapter Eight ("Problems of Cultural Change") that you haven't yet read. As with virtually every law school class

There is a firm (not law), the name of which I now forget, that has the motto: "We hire for attitude and train for skills."

The legal profession requires a little more preparation than that. All we can offer the public are our skills at reading, writing, listening, and speaking. If you expect to charge clients $100 an hour or more to do that for them you have to be able to do it better than they could do it for themselves. Three years of teaching yourself to "think like a lawyer" (and speak, and write, like a lawyer) is an incredibly valuable investment that will pay you enormous dividends over the course of the next half-century.

But it is also true that a true professional needs much more than those basic (or highly refined) analytical skills.

Law firms also "hire for attitude and train for skills." And a major component of the "attitude" is what I think of as "professionalism."

Your professors, and your colleagues, are evaluating your professional attitudes from the first day of law school. At least I am.

And if you'd like to know what this professor thinks those attitudes involve, and none of your first-year professors gave it to you as assigned reading, this might be a good time to look at my effort to put some thoughts together in a piece entitled "So You Want to be a Lawyer: A Play in Four Acts."

It will come as no surprise that a course devoted to "cyberspace law" makes substantial reliance on e-mail and the Internet.

Use of the Internet.

You will need to be able to "surf," use search engines, and otherwise be comfortable interacting with the Web.

• We will be studying the Internet.

• Your assignments are posted on the Internet.

• We will be getting some of our readings from the Internet.

If you know how to use the Internet, but haven't spent many hours doing so, you are strongly encouraged to log as many hours as possible at the beginning of the semester. I know of no substitute for just spending hours in exploration as a way of coming to understand this "thing," how it can be of greatest use to you now and in the future, and what potential legal topics and issues you would most like to explore with your research paper.

There is even an option available to you for creating your own Web site if you wish. This is not a requirement. Doing it will not enhance your grade -- though it will enhance your Internet and professional skills. If you already have a Web site of your own I'd like to link to it from our main class Web site. If you don't, but would like to have one, just let me know.

E-Mail.

You will find e-mail a useful means of communicating with your colleagues and me. No telephone tag. No wondering when I'm coming back to the office. Moreover, it's the fastest way for me to get information to you. And it, and this Web site, provide you with a written record for review -- rather than trying to remember instructions provided in class.

So, one of your first obligations it to get your e-mail address to me as soon as possible. You can just send it to me at

However, please note that if you do not have an e-mail account, or have one but don't check it at least a couple of times a week, don't be shy. Let me know. That's OK. We'll make some other arrangements for you.

We meet in Room 125, Wednesday evenings from 5:30 to 8:30 p.m., from August 27 to December 3, with the exception of November 26, Thanksgiving vacation. My office is Room 446. The phone there is 335-9146. A better phone number for voice messages is 337-5555, my home office number with an answering machine. The e-mail address, noted above, is 

My personal, all-purpose Web site is at <http://www.nicholasjohnson.org>. The best postal address is: Box 1876, Iowa City IA 52244-1876. The law school fax number I use is 335-9019. (All phone numbers are, of course, in the 319 area code.)

E-mail is probably the best of these options. But because a student once lodged a formal complaint with the Ombuds when I had not responded to her e-mail in under four hours, I should put you on notice that even e-mail has its limitations if you need a really rapid response. All of my multiple e-mail accounts get dumped into the "inav" address, above, which is then coordinated and administered from my home office during the very early morning hours and early evenings. Moreover, like you, I cannot promise that there will never be an occasion when you have to wait more than 24 hours. Often there are a couple hundred e-mails waiting when I log in. Sometimes I'm out of town or otherwise unable to check. On rare occasions I even have things to do in my life that do not involve a computer monitor and keyboard. But most of the time you'll have a reply in less than a day.

My assistant for the course will be Lisa Schomberg. Her office is Room 405, her phone number 335-9091, and her e-mail lisa-schomberg@uiowa.edu. If you're unable to reach me directly you should feel free to leave paper drafts or otherwise communicate with me through her if you wish. If you need to see her personally, know that she has another appointment at the University and can only be at the law school half time, from 8:00 a.m. until noon each day. If you are just leaving off a paper, and Ms. Schomberg is not there, her officemate, Grace Newby, is usually present and able to take whatever it may be.

1. Time and place of class. We are scheduled to meet in Room 125, Wednesday evenings, from 5:30 to 8:30 p.m., for this three-credit-hour class. We can talk about tweaking those details if you wish. Three hours is a long time. We can break it up with class activities, outside speakers, or brief video clips. We can schedule breaks during the evening (which, however, then require us to run longer). We could probably run 6:00 to 9:00 if there is enough support for doing so. It might even be possible to find an additional room and time -- a time available to everyone signed up for the class -- if you'd prefer two sessions a week rather than one. The default, however, remains what's scheduled: 5:30 to 8:30 Wednesday evenings.

2. Attendance. Given that the class meets for three hours in one evening, missing "a class" is equivalent to missing one week of classes. ABA, AALS, and our own law school and university standards require "regular attendance." If minimums are of interest to you, for purposes of this class "regular attendance" will be defined as 75 percent, or 11 of the 14 class sessions. Thus, there are no "excused" or "unexcused" absences, just absences. Common sense suggests it would be wise to hold your three absences in reserve for the end of the semester -- especially if you know your grandmother is already terminally ill, or you are anticipating "fly backs" this semester.

3. Nature of final exam. While the instructor retains the right to modify an exam's format (with advance notice to you), for your guidance final exams are usually two or three hours and consist of (a) one or two essay question/s (open book), and (b) 10-20 short answer questions (closed book). The proportion of the total grade on the exam from each part is usually proportional to the amount of time allocated for each (usually between one-third and one-half to each).

4. Time and place of final exam. The final exam is currently scheduled for Tuesday, December 16, 2003, at 8:30 a.m. It is your responsibility to confirm the place, date and time prior to the exam. The Student Handbook details the administrative regulations and procedures regarding conflicts in examination schedules, and dates for makeup exam times.

5. Calculation of grades. The primary source of your course grade will be the final (allocated as explained in 3, above). It may be enhanced, up to 10 percent, on the basis of class participation or other contributions. If a sufficient number would like to have a mid-term exam, with, say 25 percent of the class grade based on that, we can talk about that. There may also be quizzes (always announced in advance) or minor writing assignments; if so, they may represent up to 10 percent of the course grade. (There is no significant writing component of this course.)

6. Delivery of grades. Course grades will be posted by number (outside the instructor's office and on the main law school bulletin board). If you make advance arrangements with my assistant it may be possible to send you your grade by e-mail or in a self-addressed, stamped envelope.

One of the greatest resources of any law school is the intellectual quality, and diversity of background and experience, of its student body. We are particularly blessed in that respect at this law school in general and this class in particular. The more we can all know about each other, and the resources we bring to the classroom, the more each of us can take from it. Besides, it's more fun knowing who these folks are with whom you are about to be locked in a room for 14 evenings.

So, please hand in to my assistant within one week after our first class, a brief, one-page essay about yourself that can be shared with other members of the class. You need not, but may, examine examples of prior personal bios, available from my assistant. When all have been received we'll put together a hard copy "bio booklet" of our class, make copies, and give you one. (This will be the only "publication"; bio booklets will not be put in the library, posted to the Web, or otherwise made available to the public.)

Obviously, if there is anything you want to keep to yourself you are a skillful enough writer to do so. There's nothing you must include.

But while you wait for the muse to strike, be aware that the following kinds of things would be interesting and useful:

(1) something of your family, community and upbringing,

(2) early ambitions, goals or professional interests,

(3) college majors, intellectual interests, activities,

(4) work, travel or other job-related experiences,

(5) your current obligations and environment outside of law school (e.g., marital and parental status or other family responsibilities, nature and demands of outside employment; hobbies or other activities),

(6) areas of specialization in law school, student activities, or legal internships,

(7) any experiences working for (or dealing with) computer-related firms, law firms, print or electronic media, advertising, or political campaigning,

(8) future goals, expectations and plans for using your legal education,

(9) electronics hobbies (e.g., amateur radio license, computer programming or Web page design).

(1) one page maximum,
(2) single spaced,
(3) using a printer (not handwritten),
(4) with sufficiently dark print to make machine copies possible,
(5) one inch margins all around,
(6) a heading that includes your name and the date,
(7) any reasonable and readable font.

Every effort will be made to be open to students' questions, suggestions and complaints. There are a number of available communication channels noted under "Coordinates and Assistant," above. My office door is usually open when I'm there. You should feel free to come by at any time. You may also schedule appointments if you wish; it's just not necessary to do so.

But I'm also mindful there may sometime be a concern you would like to raise without my knowing it is coming from you. So that's OK, too. And that's why I'd like class members to vote one of your number as your ombudsperson to bring such individual or group concerns to me on an anonymous basis.

We'll do that the second class session, so be thinking about whether you'd like to serve, or who else you'd like to have in that position. The pay is lousy, but there is (usually) virtually no work to do and, who knows, someone might someday be impressed to find it on your resume.