INFO 235 - LAW 276.1 Spring 2012 Syllabus

Syllabus
University of California at Berkeley, Spring 2012 LAW 276.1 and INFO 235 Cyberlaw Days and Time Mondays and Wednesday 11:00 a.m. - 12:30 p.m. (3 units) Location South Hall 202

Instructor: Brian W. Carver (bcarver at ischool dot berkeley dot edu) 207C South Hall 510.643.1469

Office Hours: Mondays and Wednesdays 10:00 a.m. - 11:00 a.m. (Sign up at wejoinin)

Course Websites:


 * http://people.ischool.berkeley.edu/~bcarver/ (Main Site)
 * http://bspace.berkeley.edu (Slides or handouts used in class)

Grade and Attendance:


 * Final Paper: 45%
 * Wikipedia Project (40% total)
 * Initial Article(s) (15%)
 * First Peer Review (10%)
 * Second Peer Review (15%)
 * Participation: 15%

Each student will be required to write a paper, due at the end of the term, of approximately 20-35 pages (5,000-8,750 words), on a topic related to those covered during the semester. Each student will also be required to submit an outline of their proposed final paper at least one month prior to the paper due date. The outline will not be separately graded. See schedule below for exact due dates. Everyone should ensure that their paper's format conforms to that described in the Paper Template handout.

Note: JD students (but not LLM students) must write a paper that exceeds 7500 words or 30 pages. This enables the course to receive the "Seminar" designation under the Law School's Grading Rules and Policies which then enables me to award a greater number of HH or H grades than would be permitted under the usual grading rules and policies. Law Students that wish to use this paper for their Writing Requirement must meet additional deadlines that are merely "suggested" for others and which are detailed on the "Paper Schedule" handout.

I encourage you to discuss paper ideas with me. You may also gain some insight into choosing an appropriate topic or how to approach a seminar paper from the following: News articles, legal opinions, and scholarly articles related to the course topics can also be found on Brian's Wiki. Students may find ideas for paper topics or relevant resources on Brian's Wiki.
 * Pam Samuelson, Good Legal Writing: of Orwell and Window Panes, 46 Univ. of Pittsburgh L. Rev. 149 (1984).
 * Heather Meeker, Stalking the Golden Topic: A Guide to Locating and Selecting Topics for Legal Research Papers, 1996 Utah L. Rev. 917 (1996).
 * Eugene Volokh, Extract from Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review, Foundation Press (2007).

Each student will also, alone or in a small group, identify a topic/case/statute/etc. related to those covered during the semester and will edit or create its respective Wikipedia entry so as to improve Wikipedia's coverage of Cyberlaw topics. Topic proposals and, for group projects, an explanation of each group member's responsibilities will be submitted and approved in advance. See schedule below for exact due dates. Each student will also sign up to review and edit the Wikipedia pages edited by two fellow students.

While participation from all students is encouraged in each class meeting, half of the class (last names A-K or L-Z) will be "on call" and bear primary responsibility for moving the discussion forward in each class meeting. Attendance is expected. If you need to miss all or a portion of a class, I will assume you have a good reason, so you need not detail it for me. If you like, you can simply send me an email letting me know you need to miss, but it is not necessary.

Textbook: Lemley, Menell, Merges, & Samuelson, Software and Internet Law ("SAIL") (4th ed. 2011); additional readings available online. (This textbook is also used for INFO 237 IP Law for the Information Industries, typically offered each Fall.)

Prerequisites: None; Students from all levels (graduate/undergraduate) and schools on campus are welcome. However, this is a graduate-level course, so interested undergraduates are encouraged to meet with me before enrolling (or before the drop deadline). Undergraduates must meet additional paper deadlines that are merely "suggested" for others and which are detailed on the "Paper Schedule" handout.

Course Description (from the Course Catalog): The emergence of global digital networks, such as the Internet, and digital technologies that enhance human abilities to access, store, manipulate, and transmit vast amounts of information has brought with it a host of new legal issues that lawyers preparing to practice in the 21st century will need to understand and address. Although many are trying to "map" existing legal concepts onto problems arising in cyberspace, it is becoming increasingly evident that this strategy sometimes doesn't work. In some cases, it is necessary to go back to first principles to understand how to accomplish the purposes of existing law in digital networked environments. The course will explore specific problems in applying law to cyberspace in areas such as intellectual property, privacy, content control, and the bounds of jurisdiction. Students with familiarity with the Internet and its resources or with backgrounds in some of the substantive fields explored in this course are especially welcome, but there are no formal prerequisites. Grades for the course will be based either on a series of short papers or on a supervised term paper.

Course Goals: We will survey internet and technology law. Students will, for the most part, be introduced to these topics through reading of judicial opinions, law review articles, in-class lectures, and discussions. Students will illustrate their understanding of the material through discussions, writing assignments, and the final paper.

Add/Drop Policy: The university determines the last day to drop without a "W". Check with the Registrar.

Academic Honesty: U.C. Berkeley's Code of Student Conduct prohibits all forms of academic misconduct including but not limited to cheating, fabrication, plagiarism, or facilitating academic dishonesty. See Policy 102.01 at http://www.ucop.edu/ucophome/coordrev/ucpolicies/aos/uc100.html and http://students.berkeley.edu/uga/conductiii-vii.asp#V It is my policy to pursue the discipline of such misconduct, including, but not limited to, the entering of a grade of F in the course and a notation (or equivalent) on the student's transcript of the reason for same.

Resources: http://dictionary.law.com/ Judges and professors use a lot of legal jargon. Here's a way to look it up.

Students with disabilities: Students with disabilities who may need accommodations for any sort of disability are invited to make an appointment to see me.

Special Thanks: to those who previously taught this course, Jason Schultz, Aaron Perzanowski, Fred von Lohmann, and Pamela Samuelson, upon whose work this syllabus is based.

SCHEDULE:

Note: This is a cross-listed course. Unfortunately, the Law School's Academic Calendar does not align with the Academic Calendar of main campus. Law instruction begins Mon. Jan. 9, but instruction begins on main campus on Tues. Jan. 17. Law instruction ends Tues. Apr. 24, but instruction ends on main campus on Fri. Apr. 27. We will address this by having those enrolled in LAW 276.1 meet on Wed. Jan. 11, while those enrolled in INFO 235 will not meet on that day. Those in INFO 235 will meet on Wed. Apr. 25, while those enrolled in LAW 276.1 will not meet on that day. We will cover the same material in these sessions, so all students will cover the same material, just at different times.

Jan. 9, Mon. NO CLASS
NO CLASS

Jan. 11, Wed. (LAW 276.1 ONLY meets): Virtual Property
Students in LAW 276.1 meet, those in INFO 235 do not. Optional Readings: Virtual Property
 * eBay v. Bidder's Edge, 100 F. Supp. 2d 1058 (N.D. Cal. 2000). SAIL 1034-1041.
 * Intel Corp. v. Hamidi, 30 Cal. 4th 1342 (2003). SAIL 1042-1055.

Jan. 16, Mon.: NO CLASS MLK Holiday
'''NO CLASS. Martin Luther King, Jr. Holiday.'''

Jan. 18, Wed.: Introduction

 * Orin S. Kerr, How to Read a Legal Opinion, 11 Green Bag 2d 51 (2007).
 * John Perry Barlow, A Declaration of Independence of Cyberspace (1996).
 * Lawrence Lessig, The Law of the Horse, 113 Harv. L. Rev. 501 (1999).

Jan. 23, Mon.: Personal Jurisdiction for Online Activities and International Jurisdiction
Optional Readings: Personal Jurisdiction for Online Activities and International Jurisdiction
 * Wikimedia Foundation, Welcome to Wikipedia (2010).
 * Create a Wikipedia username (video tutorial if you need it) and list your username on our Wikipedia United States Education course page.
 * A-K on call
 * Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997). SAIL 320-327.
 * Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997). SAIL 327-334.
 * Dow Jones v. Gutnick, HCA 56 para 15 (10 Dec. 2002) (High Ct. Australia). SAIL 385-394.

Jan. 25, Wed.: Personal Jurisdiction for Online Activities and International Jurisdiction
Optional Readings: Personal Jurisdiction for Online Activities and International Jurisdiction
 * Review Wikipedia's Five pillars and the core content policies on Neutral point of view, No original research, and Verifiability. Watch the instructional video on verifiability and neutral point of view.
 * L-Z on call
 * League Against Racism and Antisemitism v. Yahoo! Inc., County Court of Paris (Nov. 11, 2000). SAIL 363-374.
 * Yahoo Inc. v. La Ligue Contre Le Racisme et L'antisemitisme, 433 F.3d 1199 (9th Cir. 2006) (en banc). SAIL 374-385.
 * Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008). SAIL 344-356.
 * Simson Garfinkel, Welcome to Sealand. Now Bugger Off, Wired Magazine (July 2000).

Jan. 30, Mon.: Indecent Speech and Censorship on the Internet
Optional Readings: Indecent Speech and Censorship on the Internet
 * Review some existing Wikipedia articles (see Brian's Userspace for a list of prior articles his students have created or substantially revised).
 * A-K on call
 * Reno v. ACLU, 521 U.S. 844 (1997). SAIL 704-718.
 * Ashcroft v. ACLU, 542 U.S. 656 (2004). SAIL 718-726.
 * United States v. American Library Association, 539 U.S. 194 (2003). SAIL 726-735.

Feb. 1, Wed.: Indecent Speech and Censorship on the Internet
Optional Readings: Indecent Speech and Censorship on the Internet
 * Wikipedia Project Proposals Due: Sign up for an initial article on our course page.
 * L-Z on call
 * Brian may have jury duty.
 * Nitke v. Gonzales, 413 F. Supp. 2d 262 (S.D.N.Y. 2005). SAIL 735-741.
 * United States v. Kilbride, Nos. 07-10528 & 07-10534 (9th Cir. Oct. 28, 2009) (read only up to section II. B, i.e., pages 1-23). SAIL 741-751.

Feb. 6, Mon.: Immunity for Internet Intermediaries
Optional Readings: Immunity for Internet Intermediaries
 * Begin compiling a bibliography and studying the sources for your Wikipedia article. (Consider using your Wikipedia userspace to compile this list.)
 * A-K on call
 * 47 U.S.C. § 230.
 * Zeran v. America OnLine, Inc., 129 F.3d 327 (4th Cir. 1997). SAIL 665-670.
 * Blumenthal v. Drudge, 992 F.Supp. 44 (D.D.C. 1998). SAIL 670-675.
 * Barrett v. Rosenthal, 40 Cal. 4th 33 (2006). SAIL 675-688.

Feb. 8, Wed.: Immunity for Internet Intermediaries
Optional Readings: Immunity for Internet Intermediaries
 * Wikipedia article bibliography due.
 * L-Z on call
 * Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc). SAIL 688-696.
 * Barnes v. Yahoo!, Inc., No. 05-36189 (9th Cir. Jun. 22, 2009). SAIL 697-704.

Feb. 13, Mon.: Liability for Distributing Information Obtained by Others
Optional Readings: Liability for Posting Information Obtained by Others
 * Wikipedia article outline due.
 * Paper bibliography due for undergraduates and Law School Writing Requirement.
 * A-K on call
 * Bartnicki v. Vopper, 532 U.S. 514 (2001). SAIL 806-814.
 * Pavlovich v. Superior Court, 29 Cal. 4th 262 (2002). SAIL 356-362.
 * DVD CCA v. Bunner, 31 Cal. 4th 864 (Cal. 2003). SAIL 814-837.
 * DVD CCA v. Bunner, 116 Cal. App. 4th 241 (Cal. Ct. App. 2004). SAIL 837-846.

Feb. 15, Wed.: Liability for Distributing Information Obtained by Others
Optional Readings: Liability for Posting Information Obtained by Others
 * Everyone should have signed up to Review others' Wikipedia Projects by now.
 * L-Z on call
 * O’Grady v. Superior Court, 139 Cal. App. 4th 1423 (Cal. Ct. App. 2006). SAIL 846-876.
 * Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007). SAIL 876-882.
 * Bank Julius Baer & Co. v. Wikileaks, (N.D. Cal.) (2008) (read linked summary).

Feb. 20, Mon.: NO CLASS President's Day
'''NO CLASS. President's Day Holiday.'''

Feb. 22, Wed.: In-class Session on Wikipedia Project

 * Continue revising and improving Wikipedia article.
 * A-K on call

Feb. 27, Mon.: Liability for Distributing Information Obtained by Others
Optional Readings: Liability for Posting Information Obtained by Others
 * Paper outline due for undergraduates and Law School Writing Requirement
 * Rodney A. Smolla, Information as Contraband: The First Amendment and Liability for Trafficking in Speech, 96 Nw. U. L. Rev. 1099 (2002).
 * Jennifer K. Elsea, Criminal Prohibitions on the Publication of Classified Defense Information, Congressional Research Service (Dec. 6, 2010).

Feb. 29, Wed.: Copyright Liability for Internet Intermediaries
Optional Readings: Copyright Liability for Internet Intermediaries
 * Wikipedia Articles Due
 * L-Z on call
 * MGM v. Grokster, 545 U.S. 913 (2005). SAIL 562-583.
 * Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). SAIL 583-589.

Mar. 5, Mon.: Copyright Liability for Internet Intermediaries
Optional Readings: Copyright Liability for Internet Intermediaries
 * Wikipedia First Reviews and DYK Nomination Complete - Use this "survey" to report on your work as a first reviewer.
 * A-K on call
 * Perfect 10, Inc. v. ccBill LLC, 488 F.3d 1102 (9th Cir. 2007).
 * Perfect 10, Inc. v. Visa Int'l Serv. Ass'n, 494 F.3d 788 (9th Cir. 2007).
 * Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008). SAIL 514-526.

Mar. 7, Wed.: Digital Rights Management and Anti-circumvention
Optional Readings: Digital Rights Management and Anti-circumvention
 * L-Z on call
 * Realnetworks, Inc. v. DVD Copy Control Assoc., Inc., 641 F. Supp. 2d 913 (N.D. Cal. Aug. 11, 2009).
 * DVD Copy Control Assoc., Inc. v. Kaleidescape, Inc., 176 Cal. App. 4th 697 (Cal. Ct. App. Aug. 12, 2009).

Mar. 12, Mon.: Network Neutrality
Optional Readings: Internet Governance and Network Neutrality
 * A-K on call
 * http://www.worldofends.com/ (Read 10 principles on main page of site.)
 * Ed Felten, Nuts and Bolts of Network Neutrality.
 * FCC, Internet Policy Statement'', FCC 05-151 (Sep. 23, 2005).

Mar. 14, Wed.: Network Neutrality
Optional Readings: Internet Governance and Network Neutrality
 * L-Z on call
 * In the Matters of Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications, WC Docket No. 07-52 (FCC 2008).
 * Comcast v. FCC, 600 F.3d 642 (D.C. Cir. 2010).
 * In the Matter of Preserving the Open Internet Broadband Industry Practices, FCC 10-201 (Dec. 23, 2010). (Skim this).

Mar. 19, Mon.: Fourth Amendment as Applied to Online Privacy
Optional Readings: Fourth Amendment as Applied to Online Privacy
 * Wikipedia Project Second Reviews and Edits Due
 * A-K on call
 * Steve Jackson Games v. United States Secret Service, 36 F.3d 457 (5th Cir. 1994). SAIL 883-890.
 * The Stored Communications Act 18 U.S.C. §§ 2701-2712.
 * United States v. Warshak, 631 F.3d 266 (6th Cir. 2010).
 * Ontario v. Quon, 130 S.Ct. 2619 (2010). SAIL 954-965.

Mar. 21, Wed.: Fourth Amendment as Applied to Online Privacy
Optional Readings: Fourth Amendment as Applied to Online Privacy
 * L-Z on call
 * Hepting v. AT&T, 439 F. Supp. 2d 974 (N.D. Cal. 2006) (pages 1-36) SAIL 965-984.
 * United States v. Arnold, 533 F.3d 1003 (9th Cir. 2008). SAIL 984-991.

Mar. 26, Mon.: NO CLASS Spring Break

 * SPRING BREAK NO CLASS

Mar. 28, Wed.: NO CLASS Spring Break

 * SPRING BREAK NO CLASS

Apr. 2, Mon.: Fifth Amendment and Encryption

 * A-K on call
 * Note: The facts described in some of these readings are disturbing. No one will be called on. Participation will be completely voluntary.
 * In re Grand Jury Subpoena (Boucher), No. 2:06-mj-91, 2007 WL 4246473 (D. Vt. Nov. 29, 2007).
 * In re Grand Jury Subpoena (Boucher), No. 2:06-mj-91, 2009 WL 424718 (D. Vt. Feb. 19, 2009).
 * United States v. Fricosu, No. 10-cr-00509-REB-02, 2012 WL 182121 (D. Colo. Jan. 23, 2012).
 * In Re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011, United States v. Doe, No. 11-12268 (11th Cir. Feb. 23, 2012).

Apr. 4, Wed.: Statutory and Common Law Claims to Protect Online Privacy
Optional Readings: Statutory and Common Law Claims to Protect Online Privacy
 * L-Z on call
 * Warren & Brandeis, The Right to Privacy, 4 Harvard L. Rev. 193 (1890).
 * In re Pharmatrak, Inc. Privacy Litigation, 329 F.3d 9 (1st Cir. 2003). SAIL 891-899.
 * Smyth v. Pillsbury Co., 914 F.Supp. 97 (E.D. Pa. 1996). SAIL 899-902.
 * Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002). SAIL 902-909.

Apr. 9, Mon.: Statutory and Common Law Claims to Protect Online Privacy
Optional Readings: Statutory and Common Law Claims to Protect Online Privacy
 * A-K on call
 * United States v. Ropp, 347 F. Supp. 2d 831 (C.D. Cal. 2004). SAIL 909-915.
 * United States v. Councilman, 418 F.3d 67 (1st Cir. 2005) (en banc). SAIL 915-928.

Apr. 11, Wed.: Civil and Criminal Hacking (The Computer Fraud and Abuse Act)
Optional Readings: Civil and Criminal Hacking (The Computer Fraud and Abuse Act)
 * L-Z on call
 * 18 U.S.C. §1030.
 * United States v. Morris, 928 F.2d 504 (2d Cir. 1991). SAIL 1097-1103.
 * United States v. Riggs, 739 F. Supp. 414 (N.D. Ill. 1990). SAIL 1103-1112.
 * United States v. Ivanov, 175 F. Supp. 2d 367 (D. Conn. 2001). SAIL 1112-1118.

Apr. 16, Mon.: Civil and Criminal Hacking (The Computer Fraud and Abuse Act)
Optional Readings: Civil and Criminal Hacking (The Computer Fraud and Abuse Act)
 * Paper Outlines Due
 * Paper Draft for Comments Due for undergraduates and Law School Writing Requirement
 * A-K on call
 * Orin S. Kerr, Cybercrime's Scope: Interpreting "Access" and "Authorization" in Computer Misuse Statutes, 78 N.Y.U. L. Rev. 1596 (2003).
 * United States v. Drew, No. 08-00582 (C.D. Cal. Aug. 28, 2009). SAIL 1118-1135.
 * Jennifer Granick, Ninth Circuit Holds Disloyal Computer Use Is Not A Crime, EFF Deeplinks (Sep. 17, 2009).
 * United States v. Nosal, No. 10-10038 (9th Cir. 2012) (en banc).

Optional Video: Video of En Banc Oral Argument in United States v. Nosal

Apr. 18, Wed.: Online Anonymous Speech and the First Amendment
Optional Readings: Online Anonymous Speech and the First Amendment
 * L-Z on call
 * Brief of Amicus Curiae The Electronic Frontier Foundation in Dominick v. Myspace, Inc., (Cir. Ct. of Cook County Ill. 2008).
 * Doe v. 2themart.com Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001). SAIL 761-767.
 * Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. A.D. 2001). SAIL 767-778.

Apr. 23, Mon.: Online Anonymous Speech and the First Amendment
Optional Readings: Online Anonymous Speech and the First Amendment
 * A-K on call
 * Do course evaluations
 * Doe v. Cahill, 884 A.2d 451 (Del. 2005). SAIL 778-791
 * Mobilisa, Inc. v. Doe, 170 P.3d 712 (Ariz. Ct. App. 2007). (excerpt on SAIL 791).
 * Krinsky v. Doe 6, 159 Cal. App. 4th 1154 (Cal. Ct. App. 2008). SAIL 791-805.

Apr. 24, Tue.: Pope Gregory Make-up Class

 * Pope Gregory Make-up Class. Our usual classroom is unavailable. Brian will be available in Room 111 Boalt Hall during normal class hours, if you would like to discuss your paper.

Apr. 25, Wed. (ONLY INFO 235 meets): Virtual Property
Students in INFO 235 meet, those in LAW 276.1 do not. Optional Readings: Virtual Property
 * L-Z on call
 * eBay v. Bidder's Edge, 100 F. Supp. 2d 1058 (N.D. Cal. 2000). SAIL 1034-1041.
 * Intel Corp. v. Hamidi, 30 Cal. 4th 1342 (2003). SAIL 1042-1055.

May 10, Thu.: LAW 276.1 PAPERS DUE
Papers due by 11:59:59 p.m.

May 11, Fri.: INFO 235 PAPERS DUE
Papers due by 11:59:59 p.m.