Law Commons^™

Canning Spam: Consumer Protection Or A Lid On Free Speech?, Grant C. Yang

Duke Law & Technology Review

The United States Congress recently passed the first federal legislation to curb the influx of spam. However, the Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM Act") left some measures to be enacted by the Federal Trade Commission ("FTC"), and some consumers are calling for the Act to have a broader reach and for the creation of a Do-Not-E-Mail registry. Conversely, the FTC decided to delay the creation of a registry and opted to assist in the development of a new technological authentication system. This iBrief looks at the current state of spam and explains that it is …

An Introduction To Lessigian Thought, Russ Taylor

Federal Communications Law Journal

Book Review: Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, Lawrence Lessig, New York: Penguin Press, 2004, 306 pages.

A review of Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity by Lawrence Lessig. Lawrence Lessig is a frequent commentator and prolific writer on media and communications topics. His body of work touches copyright issues, radio spectrum policy, media ownership issues, and legal ownership and control of the physical platforms that deliver broadband content. In this 2004 publication, he focuses on copyright policy. …

An Architecture For Spam Regulation, David Dickinson

Federal Communications Law Journal

Junk email, commonly referred to as "spam," is the current scourge of the Internet. In late 2004, unwanted email messages were being delivered at a rate of 12.4 billion per day. The variety of tools used to combat spam have failed to make a significant impact. Legislative efforts, such as the CAN-SPAM Act of 2003, met with substantial enforcement complications. The communications industry responded with a variety of technical advances, such as filters and blacklists, but those innovations are still unable to reliably distinguish between wanted and unwanted messages. Real coordination between legislative and technical spam control tactics has yet …

1984 Is Still Fiction: Electronic Monitoring In The Workplace And U.S. Privacy Law, Christopher Pearson Fazekas

Duke Law & Technology Review

Electronic monitoring in the workplace has been the subject of relentless public criticism. Privacy advocates argue that technological advancements have given overbearing employers powerful tools to abuse employee dignity in the name of productivity and that new legislation should bolster workplace privacy rights. This iBrief contends that current U.S. legal doctrine governing electronic monitoring in the workplace is fair given the nature and purpose of the workplace, and potential employer liability for employee misconduct.

Crossed Signals In A Wireless World: The Seventh Circuit’S Misapplication Of The Complete Preemption Doctrine, Matthew J. Kleiman

Duke Law & Technology Review

As the number of wireless telephone users continues to proliferate, so does the number of lawsuits against wireless service providers. While consumers seek to utilize various consumer-friendly state law causes of action, the wireless industry continues to push for a uniform federal regulatory regime. Ambiguous language in the Federal Communications Act of 1934 ("FCA") and disagreement among the federal circuits has led to much confusion over whether state law claims affecting wireless rates and market entry are removable to federal court by way of "complete preemption." This iBrief argues that FCA's preemption power is limited by its savings clause, failure …

The Trade Of Cross-Border Gambling And Betting: The Wto Dispute Between Antigua And The United States, James D. Thayer

Duke Law & Technology Review

The first ecommerce dispute to come before the World Trade Organization ("WTO") was billed to be one of David and Goliath proportion. The tiny twin-island nation-state of Antigua and Barbuda challenged the United States' ban on cross-border Internet gambling and betting. As a result of the dispute, the WTO issued a private final report against the United States finding that the ban violates the United States' commitments under the WTO. Shortly before the public release of the final report, both parties petitioned the WTO to indefinitely postpone its release so that the parties could engage in private negotiations. The final …

Privacy, Free Speech & The Garden Grove Cyber Café Experiment, Brett Stohs

Duke Law & Technology Review

In response to gang violence at local "cyber cafés," the City Council of Garden Grove, California, passed an ordinance requiring cyber cafés to install video surveillance systems. The constitutionality of the provision was subsequently challenged, and a California Court of Appeal determined that the video surveillance requirement did not violate free speech or privacy protections under either the federal or California Constitutions. This decision was immediately challenged, by commentators and a dissenting judge, as opening the door to Orwellian-type, government intrusions into individuals' personal lives. This iBrief analyzes the appellate court's decision and concludes that not only did the majority …

A Manifesto On Wipo And The Future Of Intellectual Property, James Boyle

Duke Law & Technology Review

In this Manifesto, Professor Boyle claims that there are systematic errors in contemporary intellectual property policy and that WIPO has an important role in helping to correct them.

Privacy Concerns Regarding The Monitoring Of Instant Messaging In The Workplace: Is It Big Brother Or Just Business?, Ira David

Nevada Law Journal

No abstract provided.

Virtual Shareholder Meetings, Elizabeth Boros

Duke Law & Technology Review

Electronic communication impacts how widely-held corporations conduct shareholder meetings. For example, technology has facilitated such options as electronic proxy voting, remote electronic voting, and "virtual meetings." This iBrief examines the idea of "virtual meetings" and argues that they should not entirely replace physical meetings unless an electronic solution can be devised which replicates the face-to-face accountability of management to retail shareholders.

Case Comment: Society Of Composers, Authors And Music Publishers Of Canada V. Canadian Association Of Internet Service Providers, Barry Sookman

Canadian Journal of Law and Technology

The exponential growth of the Internet has raised serious issues related to liability for copyright infringement. Who should compensate authors and publishers for the use of their works? What activities constitute infringement? Are Internet intermediaries such as Internet service providers (ISPs) liable for infringement when they provide connectivity to subscribers, when they provide hosting services, or when they use caching technologies? Where does infringement occur? Is the scope of the Copyright Act limited to acts of infringement that occur wholly within Canada or does the Act apply to acts that take place partly in Canada and partly outside of Canada? …

Three Years Under The Pipeda: A Disappointing Beginning, Christopher Berzins

Canadian Journal of Law and Technology

As of January 1, 2004, after a three-year phase-in period, the Personal Information Protection and Electronic Documents Act (PIPEDA) came fully into force. Although considerable uncertainty currently prevails due to unanticipated events such as the resignation and replacement of Commissioner George Radwanski and the late constitutional challenge by Quebec, there is now sufficient experience with the legislation to begin to assess how the PIPEDA is working. It is also a timely juncture to do so with the extension of the legislation to the provincially regulated private sector.

Privacy Of Genetic Information In Canada: A Brief Examination Of The Legal And Ethical Tools That Should Frame Canada's Regulatory Response, Stephen Orr

Canadian Journal of Law and Technology

This article investigates the legal and ethical tools that should inform Canada's regulation of the privacy of genetic information. We are the first generation faced with resolving the unique challenges presented by genetic information. Unfortunately, the patchwork of instruments that could regulate genetic information in Canada is insufficient. The prospect of Canadians increasingly generating genetic information without a satisfactory structure for protecting the information is rather alarming. It is therefore important that we commit to reexamining regulations regarding genetic information. Different loci of governance will likely be required. Canada should look to international law and comparative law for inspiration regarding …

Video Surveillance, Evidence And Pipeda: A Comment On Ferenszy V. Mci Medical Clinic, Anne Uteck

Canadian Journal of Law and Technology

One of the most common uses of surveillance is in the area of evidence gathering for investigation by litigators. Private investigators have long been retained for this purpose, and law enforcement officers routinely utilize surveillance devices to assist in the prosecution of a crime. The admissibility of video surveillance evidence obtained by private and government investigators is obviously not a new issue. What has come to the fore- front is the application of the Personal Information Protection and Electronic Documents Act in the context of video surveillance evidence, and its impact on civil litigators. Privacy interests inherent in the collection, …

No Lego, Yes Logo: The Federal Court Of Appeal Protects Innovation In Kirkbi Ag And Lego Canada Inc. V. Ritvik Holdings Inc., Sean Robertson

Canadian Journal of Law and Technology

This article will discuss the case at the trial and appellate levels. It will specifically address the underlying policy debate between the majority and the dissenting decisions at the Federal Court of Appeal. The author will compare this debate to two similar international cases involving Lego’s infamous intellectual property litigation. With this recent finding in the 40-year-old saga of international case law surrounding Lego’s trade-mark enforcement strategy, the Appeal Division of the Federal Court of Canada joins the ranks of several other courts that have similarly excluded protection for Lego based on the doctrine of functionality. The comment concludes with …

The Law Of Privacy In Canada (Student Edition) By Barbara A. Mcisaac, Rick Shields, Kris Klein (Toronto: Thomson Carswell, 2004), John D. Gregory

Canadian Journal of Law and Technology

To help lawyers advise their clients on their rights and obligations in this complex and novel field, the various legal publishers have offered an array of guides and textbooks analyzing the law of privacy. Thomson/Carswell turned for its book to the national law firm of McCarthy Tétrault. Three McCarthy lawyers (Barbara McIsaac, Rick Shields, and Kris Klein) are listed as authors of The Law of Privacy in Canada, and several others have contributed significant parts of the text, and they have done a creditable job in pulling it all together. It seems to be the only thorough and up-to-date analysis …

Restoring A Public Interest Vision Of Law In The Age Of The Internet, Marc Rotenberg

Duke Law & Technology Review

In November 2003, Mr. Marc Rotenberg, Executive Director of the Electronic Privacy Information Center, lectured at Duke Law School on the importance of protecting individual privacy. In his remarks, Mr. Rotenberg recounted the successful campaign against the government's Clipper Chip proposal. He argued that successful public interest advocacy in the Internet age requires the participation of experts from many fields, public engagement, and a willingness to avoid a simple "balancing" analysis. He further concluded that privacy may be one of the defining issues of a free society in the twenty-first century.

Wireless Local Number Portability: New Rules Will Have Broad Effects, Stephen M. Kessing

Duke Law & Technology Review

After a delay of over seven years, wireless local number portability rules ("WLNP") finally went into effect on November 24, 2003. These rules, promulgated by the Federal Communications Commission, allow wireless subscribers to change service providers within a given location while retaining the same phone number. The rules also allow consumers to transfer a land-based telephone number to a cellular provider. These new choices will likely have a significant impact on the wireless industry and increase competition in an already intense playing field. This iBrief provides a summary of the new rules, looks at the history and litigation, and predicts …

Deregulating Telecommunications In Internet Time, James B. Speta

Washington and Lee Law Review

The Telecommunications Act of 1996 has yielded more litigation and less local competition than its supporters expected or intended. Calls for its reform are multiplying. In this Article, Professor Septa diagnoses the 1996 Act's failings and prescribes a framework for reform. The successful deregulations of the transportation industries and of long-distance telecommunications (precedents the 1996 Act sought to follow) demonstrate that the Act should have taken additional steps to promote intermodal telecommunications competition. Transportation deregulation successfully prompted competition where (as in the case of airlines and trucking) multiple firms could compete on an intramodal basis or where (as in the …

Using Architectural Constraints And Game Theory To Regulate International Cyberspace Behavior, Van N. Nguy

San Diego International Law Journal

The debate over whether cyberspace can or should be regulated is essentially dead. This is the conclusion being taught in law schools today. The battle between Judge Frank Easterbrook and Professor Lawrence Lessig over "laws" and "horses", infamous among cyberspace legal scholars, became irrelevant when geographically-based governments began regulating Internet related activities. However, debate over how the Internet should be regulated continues. One way of framing this debate is in terms of deciding how to regulate behavior in cyberspace. Professor Lessig postulated four kinds of constraints regulate behavior: (1) social norms, (2) markets, (3) law, and (4) architecture. This comment …

Try, Try Again: Will Congress Ever Get It Right? A Summary Of Internet Pornography Laws Protecting Children And Possible Solutions, Susan Hanley Kosse

University of Richmond Law Review

No abstract provided.

Staying Afloat In The Internet Stream: How To Keep Web Radio From Drowning In Digital Copyright Royalties, Emily D. Harwood

Federal Communications Law Journal

In the 1990's, the development of "streaming" technology allowed webcasters to begin broadcasting music on the Internet. The public took advantage of a plethora of free media players, and the number of web-based radio stations soared. However, a crippling dispute over broadcast rates left the viability of this technology in doubt. This Note criticizes current policies that curtail radio streaming by providing harsh financial restrictions on webcasters. In looking to the future, this Note argues that Congress should extend licensing exemptions to cover those Internet stations most like their AM/FM counterparts who do not have to pay additional fees.

Dinner Speech - Reading Too Much Into Nothing: The Metaphor Of Place And The Internet, David Hricik

Mercer Law Review

When I was asked to speak at this dinner, I realized I was doing something I had never done before. Normally, I am given the task of speaking for ninety minutes early in the morning at Continuing Legal Education (CLE) conferences for patent lawyers. The challenge is always first, how to wake them up, especially when they are often tired and may have had a heavy dinner and drinks the night before with other attendees and, next, how do I keep them awake for ninety minutes?

Screen-Scraping And Harmful Cybertrespass After Intel, George H. Fibbe

Mercer Law Review

The topic for this Symposium, "The Internet: Place, Property, or Thing-All or None of the Above," touches on a debate that has existed since the early days of the Internet. There is no question that people commonly understand their experience using the Internet with the help of spatial metaphor--e.g., "sites" and "addresses" that we "visit," and programs called "robots," "crawlers," and "spiders." Leaving metaphor aside, many of the constituent parts of the Internet, especially computer servers, are items of private personal property.

Indeed, the debate over metaphor is reminiscent of the scene from the movie Field of Dreams in which …

The Americans With Disabilities Act In Cyberspace: Annlving The "Nexus" Approach To Private Internet Websites, Richard E. Moberly

Mercer Law Review

In recent years, the increasing importance of the Internet has drawn attention to the exclusion of certain parts of society from participating fully in the advantages brought about by the Internet's technological advances. This "digital divide," as some have labeled it, particularly excludes some individuals with disabilities, such as those with visual, auditory, or muscular impairments, who are unable to access many features of today's Internet. Although private efforts encourage websites to adopt voluntary standards to make the Internet more accessible to these individuals, no clear governmental directive specifically aimed at privately-owned websites currently requires broad accessibility for the disabled. …

Filtering Software In Public Libraries: Traditional Collection Decision Or Congressionally Induced First Amendment Violation?, Christopher Harne

Mercer Law Review

In United States v. American Library Ass'n, the United States Supreme Court held that filtering provisions of the Children's Internet Protection Act ("CIPA" or "Act") are constitutional and are a valid exercise of Congress's spending power because they do not induce public libraries to violate their patrons' First Amendment rights. The Court also held that CIPA does not place unconstitutional conditions upon public libraries' receipt of federal funding.

From The Cluetrain To The Panopticon: Isp Activity Characterization And Control Of Internet Communications, Eric Evans

Michigan Telecommunications & Technology Law Review

If ISPs are exposed to liability for forwarding others' messages--messages originating with other ISPs or with the ISP's own users--the norm of universal mutual message forwarding that underlies the present operation of the Internet will be threatened. This Note will argue that society presently confronts a choice between a common carrier Internet characterized by universal mutual message forwarding and a monitored and controlled Internet. Part I will describe the underlying rules that govern ISPs' liability for their users' actions. Part II will argue that the present statutory regime governing ISPs' liability for users' copyright infringement includes elements that provide ISPs …

Application Of The Public-Trust Doctrine And Principles Of Natural Resource Management To Electromagnetic Spectrum, Patrick S. Ryan

Michigan Telecommunications & Technology Law Review

The Electromagnetic spectrum is among our most valuable natural resources. Yet while the past few decades have seen a rich body of environmental law develop for other natural resources, this movement has largely passed over the electromagnetic spectrum. This Article argues that to remedy that situation, the public-trust doctrine, which is now a cornerstone of modern environmental law, should be extended to the electromagnetic spectrum. This extension would not be a leap: the public-trust doctrine has already been used to guarantee the public access to various bodies of water (not just navigable water), and to protect recreational lakes and beaches, …

The Speech-Enhancing Effect Of Internet Regulation, Emily Buss

Chicago-Kent Law Review

In this Article, the author suggests that certain speech-reducing regulations will, in fact, be speech-enhancing for children. This is because children are vulnerable to far greater censorship at the hands of their parents than at the hands of Internet regulators. Regulations that inspire parents to relax their grip on their children's access to information are likely to produce significant net speech gains for children. Viewed this way, regulations designed to protect children can be conceived as pitting the speech interests of adults against the speech interests of children. The Article suggests a number of reasons we might value the children's …

When Well-Being Trumps Liberty: Political Theory, Jurisprudence, And Children's Rights, William Galston

Chicago-Kent Law Review

Compared to most adults, children are dependent and vulnerable and therefore require special protection. Efforts to safeguard their well-being often collide with one or more of the liberty guarantees of the First Amendment. Professor Etzioni fears that current jurisprudence has tipped the balance too far towards individual liberty, making it difficult to extend children the legal protection they need. Drawing on a theoretical account of constitutionalism as well as existing case law, the author argues that mainstream jurisprudence is up to the task of balancing the well-being of children against the liberty of adults. The Supreme Court's recent decision in …