Internet Law Commons^™

We're Friends, Right? Client List Misappropriation And Online Social Networking In The Workplace, Brian V. Wyk

Vanderbilt Journal of Entertainment & Technology Law

Social networks, such as Facebook, MySpace, and LinkedIn have grown tremendously over the past decade, and today they claim over 200 million users between the three services. A great number of smaller social networks have also appeared, and new services are constantly being created. With the vast growth of social networking has come the use of social networking in business. As businesses have sought to exploit the wealth of information that social network users share over these networks, businesses have encountered the problem of protecting the compilations of information they have produced. The problem became clear in 2008 when a …

The Magic Circle, Joshua A.T. Fairfield

Vanderbilt Journal of Entertainment & Technology Law

This Article examines the concept of the "magic circle," the metaphorical barrier that supposedly excludes real-world law from virtual worlds. The Article argues that this metaphor fails because there is no "real" world as distinguished from "virtual" worlds. Instead of a magic circle, this Article advocates a rule of consent: actions in a virtual world give rise to legal liability if they exceed the scope of consent given by other players within the game. The Article concludes that although real-world law cannot reasonably be excluded from virtual worlds, game gods and players can control the interface between law and virtual …

Mass Culture And The Culture Of The Masses: A Manifesto For User-Generated Rights, Debora Halbert

Vanderbilt Journal of Entertainment & Technology Law

User-generated content is a term used to describe the division between culture produced as a commodity for consumption and the culture that is generated by people acting as creative beings without any market incentive. While under current copyright law all types of creativity are protected, the laws of copyright exist primarily to protect commercial forms of expression, not the non-commercial ones that form the foundation of user-generated content. The disconnect between what current copyright law protects and how most people create generates tensions that must be addressed. This Article presents an argument for broader protection of all creative work, including …

Working Toward Spontaneous Copyright Licensing: A Simple Solution For A Complex Problem, Tanya M. Woods

Vanderbilt Journal of Entertainment & Technology Law

As the web evolves, so too are discussions on how to manage the rights of copyright owners online. Finding a solution that is balanced and that accounts for the international nature of the Internet is essential. While many have attempted to craft such a solution, a model that accommodates the spontaneity of copyright content users and that recognizes the multi-territorial nature of the Internet has yet to materialize. For this reason, this Article formulates a macro-level conceptual approach to building a practical copyright licensing model that could generate spontaneous digital copyright licenses to accommodate the creative impulses of web users …

User-Generated Content And Virtual Worlds, Greg Lastowka

Vanderbilt Journal of Entertainment & Technology Law

Many legal commentators have claimed that virtual worlds owe their popularity to their focus on user-generated content and user creativity. While this is true in part and authorial freedom may draw consumers to virtual worlds, user-generated content can also pose risks to virtual world business from both an aesthetic and legal perspective. A significant tension exists between permitting participants to create content freely and building a successful virtual environment. In some instances, user-generated content can overwhelm virtual worlds. The future of user-generated content in virtual worlds is not clear, given the significant practical and legal problems that accompany user-generated content.

Just Click Submit: The Collection, Dissemination, And Tagging Of Personally Identifying Information, Corey Ciocchetti

Vanderbilt Journal of Entertainment & Technology Law

As the twenty-first century bustles forward, the e-commerce arena becomes an ever more dangerous place. On a daily basis, Websites collect vast amounts of personally identifying information (PHII) and mine it in sophisticated databases to discover consumer trends and desires. This process provides many benefits--such as tailored Web sites and relevant marketing--that few Web surfers would care to do without. However, serious threats lurk in cyberspace and are enhanced by consumers who continue to submit vast amounts of information in a state of relative unawareness. Not wanting to miss out on their Web surfing experience, visitors submit their personal information …

Xiaoning V. Yahoo! Inc.'S Invocation Of The Alien Tort Statute: An Important Issue But An Improper Vehicle, Denae Thomas

Vanderbilt Journal of Entertainment & Technology Law

U.S.-based Internet service providers (ISPs) are faced with a dilemma when operating in countries with restrictive Internet speech laws: should they comply with these governments' demands for personally identifying information of Internet dissidents or respect their own country's dedication to free speech and refuse to comply? On behalf of Chinese dissidents who were imprisoned for violating Chinese speech laws, human rights advocates have invoked the Alien Tort Statute (ATS) in an attempt to hold ISPs accountable for their acquiescence with the Chinese government's demands. This Note examines one such case, Xiaoning v. Yahoo! Inc., and ultimately concludes that, while the …

Increasing Global Demand For An Uncensored Internet, Andrew W. Lloyd

Vanderbilt Journal of Transnational Law

This Note discusses efforts to defeat government censorship of the Internet. In the narrow meaning of that idea, this Note initially discusses technological efforts to circumvent government-imposed Internet firewalls; in the broader sense, it addresses the larger goal of inducing censoring governments to bring their firewalls down. Proposed U.S. legislation would provide U.S. government funding of censorship circumvention technology. This Note discusses why such funding is not a good approach. Absent larger international efforts, private action--within both the U.S. and censoring countries--has the best chance of bringing down government-run firewalls. This Note discusses how the U.S. government can best facilitate …

Cyber-Libeling The Glitterati: Protecting The First Amendment For Internet Speech, Abbey L. Mansfield

Vanderbilt Journal of Entertainment & Technology Law

Celebrity gossip is disseminated on the Internet not only by profitable publications and Internet tabloids with professional writers and sophisticated legal teams, but also by countless numbers of "blogs" posted by ordinary individuals, often with nothing more than a dial-up connection. Americans posting speech on the Internet must be aware of the implications of the Gutnick decision and recognize that they could be dragged into court and held liable for defamation abroad. This note explores theoretical changes to the law that should be adopted to protect the First Amendment as it applies to Internet speech. Additionally, this note discusses various …

Calling All Angles: Perspectives On Regulating Internet Telephony, Melissa Winberg

Vanderbilt Journal of Entertainment & Technology Law

In 1996, Congress passed the Telecommunications Act, substantially revising the Communications Act of 1934 to reflect technological advances, including the Internet, and Congress's deregulatory goals. Currently, however, new technologies are challenging the viability of the statutory definitions and regulatory schemes of the statute. Internet telephony, commonly called Voice over Internet Protocol (VoIP), is both a replacement for traditional telephone service and a new web-based technology. Given the current competitive political climate and the magnitude of the interests involved, Congress is unlikely to succeed in altering the telecommunications regime. Thus, the Federal Communications Commission, which has the authority to regulate interstate …

A Common Tool For Individual Solutions: Why Countries Should Establish An International Organization To Regulate Internet Content, Paul Przybylski

Vanderbilt Journal of Entertainment & Technology Law

This note advances the case for an international organization to control Internet content. Part I describes the current state of affairs with respect to Internet regulation. First, this part describes briefly how the Internet works, to the extent that such a description is necessary to advance the argument presented in this note. Second, concentrating on Europe, the United States, and China, Part I describes the diverging preferences of countries regarding Internet regulation, the approaches they have taken, and the problems they have encountered due to the international nature of the Internet. Third, this part addresses the major attempt at international …

From Safe Harbor To Choppy Waters: Youtube, The Digital Millennium Copyright Act,And A Much Needed Change Of Course, Lauren B. Patten

Vanderbilt Journal of Entertainment & Technology Law

YouTube.com, named Time magazine's "Invention of the Year" for 2006 and widely recognized as the most-visited video site on the Internet, has changed the face of online entertainment. With the site's acquisition by Google in October 2006, the possibilities for YouTube's growth became truly endless. However, there is a darker side to the story of the Internet sensation, one that is grounded in its potential liability for copyright infringement. The issue is that many of the most-viewed and most-popular videos on the site are copyrighted. The copyright owners of those popular clips want their works back and are suing YouTube …

All In, But Left Out: How The Unlawful Internet Gambling Enforcement Act Seeks To Eradicate Online Gambling In The United States, Benjamin C. Wickert

Vanderbilt Journal of Entertainment & Technology Law

In recent years, gambling on the Internet has evolved into a multi-billion dollar enterprise. The industry has been particularly entrenched in the United States, whose citizens at one time accounted for up to one-half of all Internet gambling revenues. However, the landscape of Internet gambling in the United States changed drastically in 2006, when President George W Bush signed into law the Unlawful Internet Gambling Enforcement Act (UIGEA). The crucial provision of the UIGEA is its prohibition of the acceptance of payments, made by United States banks and creditors, to purveyors of unlawful Internet gambling enterprises. By targeting United States …

An International-Comparative Perspective On Peer-To-Peer File-Sharing And Third Party Liability In Copyright Law, Guy Pessach

Vanderbilt Journal of Transnational Law

In the last decade, the phenomenon of peer-to-peer file-sharing and its various legal aspects have been dealt with extensively by legal scholarship. The purpose of this Article is to take a closer inspection of several particular legal aspects that are related to peer-to-peer file-sharing as a comparative, social, economic, and cultural phenomenon. The Article begins by providing critical comparative analysis of distinct paradigms that different legal systems have offered regarding the question of third party liability for copyright infringements that occur through peer-to-peer file-sharing platforms. The Article then presents three focal policy considerations that should serve as copyright law's compass …

State Regulation Of Unsolicited Bulk Commercial E-Mail And The Dormant Commerce Clause, Jeffrey D. Zentner

Vanderbilt Journal of Entertainment & Technology Law

This note will analyze the implications of the dormant Commerce Clause as applied to Virginia's stringent anti-spam law, under which two spammers have already been convicted of felony spamming. Part I will lay out the background of anti-spam legislation, case law involving other state statutes, and a brief history of United States Supreme Court dormant Commerce Clause jurisprudence. Part II will examine the validity of state spam regulation under the Federal CAN-SPAM Act of 2003 and current dormant Commerce Clause jurisprudence, using Virginia's anti-spam law as an example. Finally, Part III will examine the shortcomings of the CAN-SPAM Act and …

A Winner Is Who? Fair Use And The Online Distribution Of Manga And Video Game Fan Translations, Jaime E. Muscar

Vanderbilt Journal of Entertainment & Technology Law

This note examines the legality of fan translations of Japanese comic books, known as manga, and video games distributed over the Internet, with special consideration given to the application of the fair use doctrine. Technology related to the distribution of media online grows exponentially compared to the law governing this technology. Although much recent litigation has limited the online distribution of traditional media, both copyright holders and courts have largely ignored a fringe segment of this distribution. This fringe includes manga and video games. Manga can be easily shared online by scanning images, and video games are now frequently converted …

As Soft As Tofu: Consumer Product Defamation On The Chinese Internet, Elizabeth Spahn

Vanderbilt Journal of Transnational Law

This Article examines the most notorious Chinese internet defamation case, Wang Hong v. Maxstation, which awarded substantial damages against an individual consumer as well as two online magazines for criticizing a laptop product on the internet. The case created a widespread political controversy on the internet in China, highlighting an underlying tension in the current policies of the Chinese government, which promotes a more open market economy while maintaining tight censorship over public speech. The case developed landmark legal doctrine in China, extending judge made defamation law while ignoring the Chinese consumer protection statute. Extending defamation doctrine to include factual …

Warring Ideologies For Regulating Military Blogs: A Cyberlaw Approach For Balancing Free Speech And Security In Cyberspace, Julia E. Mitchell

Vanderbilt Journal of Entertainment & Technology Law

Part I of this note provides an overview of the use of media during war. It also reviews case law relating to the military's limited right to freedom of speech under the First Amendment. Part II analyzes the problems of regulating milblogs in terms of societal costs and the technological challenges of regulating behavior on the Internet. This note argues that the military's "unexceptionalist" approach toward regulation, wherein it applies the traditional principles embodied in the UCMJ to milblog regulation, undermines its goal of maintaining operational security and impedes the free flow of ideas. Finally, Part II introduces an "exceptionalist" …

The Purpose Of Copyright Law In Canada, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

IN THREE RECENT CASES, the Supreme Court of Canada provided several pieces of the Canadian copyright policy puzzle. We now know that the economic purpose of copyright law is instrumentalist in nature, namely, to ensure the orderly production and distribution of, and access to, works of art and intellect. The Court added that copyright can not enter carelessly into the private sphere of individual users. By targeting end-users in recent lawsuits, copyright holders have also found out that it is difficult to enforce a right that has not been properly internalized. After reviewing the Supreme Court trilogy of cases, the …

Why Is Betamax An Anachronism In The Digital Age?, Jiarui Liu

Vanderbilt Journal of Entertainment & Technology Law

This Article aims to examine whether, as some courts indicate, the Sony doctrine is largely irrelevant in cyberspace. If the answer is no, how should courts properly apply the Sony doctrine to protect copyright holders' legitimate interests and further the innovation and prosperity of Internet technologies? This Article argues that the Sony doctrine should be given the widest application possible and not be subject to any preconceived formula. In the digital age, the test of "capable of substantial noninfringing uses" is still well suited to advance the ultimate objective of copyright law contemplated by the Supreme Court as well as …

Accommodating Technological Innovation: Identity, Genetic Testing And The Internet, Gaia Bernstein

Vanderbilt Law Review

To evaluate the need for legal change stemming from technological innovation, we need to look beyond the accommodations of specific rules to the impact of technological innovation on social structures, institutes and values. In this Article I study how social tensions created by recent technological innovations produce a need to elevate legal interest from the shadows of legal discourse into the forefront of legal debate. Specifically, I examine two innovations that are exerting significant influence on our lives-genetic testing and the Internet-and their impact on our normative conception of identity. This socially oriented approach leads to several insights.

First, I …

Typosquatters, The Tactical Fight Being Waged By Corporations, And Congress' Attempt To Fight Back In The Criminal Arena, David A. Gusewelle

Vanderbilt Journal of Entertainment & Technology Law

Part II of this Note presents an overview of domain names as well as a general overview of cybersquatting and trademarks. Part III analyzes some of the measures Congress has taken against cybersquatting and the case law under those measures. Part IV gives a general overview of typosquatters, who constitute a subgroup of cybersquatters. Part V discusses the TDNA and issues that have been addressed through U.S. v. Zuccarini. Part VI asks whether the TDNA is an unconstitutional restriction on free speech. Part VII questions whether criminal liability is appropriate and argues for a higher culpability standard in § 2252(B)(b) …

A Winning Hand: A Proposal For An International Regulatory Schema With Respect To The Growing Online Gambling Dilemma In The United States, John D. Andrle

Vanderbilt Journal of Transnational Law

While a multitude of Internet enterprises folded in the 1990s, online gambling websites not only have held strong, but appear to be ready to increase the stakes. No business relating to the Internet currently generates more revenue than online gambling, and that trend does not look like it will change soon. While many Americans desire to participate in this form of cyber-gambling, the current legality of their ability to do so remains vague. For the most part, an American's ability to gamble currently resides under the purview of state law and a hodgepodge of antiquated federal wire acts. The nature …

Fragmented Copyright, Fragmented Management: Proposals To Defrag Copyright Management, Daniel J. Gervais, Alana Maurushat

Vanderbilt Law School Faculty Publications

The collective management of copyright in Canada was conceived as a solution to alleviate the problem of inefficiency of individual rights management. Creators could not license, collect and enforce copyright efficiently on an individual basis. Requiring users to obtain permission from individual copyright holders for the use of a work was equally inefficient. Collectives, therefore, emerged to facilitate the clearance of rights between creators and users. Even with the facilitation of collectives in the process, clearing rights remains an inherently difficult and convoluted process. This is especially so in the age of the Internet where clearing rights for multimedia products …

New Media, New Rules: The Digital Performance Right And Streaming Media Over The Internet, Joseph E. Magri

Vanderbilt Journal of Entertainment & Technology Law

Streaming music over the Internet, or what otherwise is known as webcasting or Internet radio, has the potential to become the single most revolutionary means of music transmission ever developed.' In order to appreciate the potential impact of Internet radio, it is helpful to understand that Internet radio has the ability to venture far beyond the at-home personal computer that is tethered to a wall and logged-on to the Internet. With advances in wireless broadband technologies, such as wireless fidelity or Wi-Fi, and the growing availability of Internet content via mobile devices,' Internet radio will soon become widely available on …

The Digital Music Dilemma: Protecting Copyright In The Age Of Peer-To-Peer File Sharing, Natalie Koss

Vanderbilt Journal of Entertainment & Technology Law

This paper seeks a resolution between the need to eliminate copyright infringement and the desire to encourage new technology. This paper will suggest that the music industry would be better off directing resources toward solutions such as compulsory licensing, royalty collection, and working with hardware manufacturers to discourage copyright infringement. These solutions would allow the industry to take advantage of file sharing now rather than expending resources in court where the desired result of ending P2P programs may never come.

Solutions Are On Track, Beth A. Thomas

Vanderbilt Journal of Entertainment & Technology Law

This Note discusses the need to solve the copyright problems caused by digital file sharing over peer-to-peer networks and the possible solutions that would be acceptable to both the media industries and the public. While it is likely that the problems caused by file sharing will not decrease significantly by placing post-sales control in the hands of the artists, it is probable that legislative and industry driven technical counter-measures will be able to decrease illegal file sharing in an acceptable way.

Part I outlines copyright in general and how digital technology is pushing at the boundaries of copyright law. Part …

Is There Judicial Recourse To Attack Spammers?, Ashley L. Rogers

Vanderbilt Journal of Entertainment & Technology Law

This Note will discuss the issue of non-commercial spam through the prism of a case recently decided by the California Supreme Court, Intel v. Hamidi. Until recently there was no federal regulation for unwanted electronic communication and common law was the only potential solution. Part I of this Note will discuss the nature of spam, focusing on the distinction between commercial e-mail and bulk e-mail and the importance therein. Part II will detail the history and the legal doctrine of trespass as it applies to the Internet. Part III will summarize the case of Intel v. Hamidi as it struggled …

The Internationalization Of Intellectual Property: New Challenges From The Very Old And The Very New, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Intellectual property concepts embodied in international treaties and national laws date back to the eighteenth century. Many fundamental concepts (originality in copyright law; confusion in trademark law; novelty or inventiveness in patent law) vary from one country's national legislation to another. Yet, many critics of the intellectual property system recognize that solutions to the problems, ranging from database protection to the Internet, should ideally be the same worldwide. In today's globalized economy, it makes sense to adopt rules to protect that take account of the laws and practices of other nations and of the work of international organizations. Protecting only …

Immunizing Internet Service Providers From Third-Party Internet Defamation Claims: How Far Should Courts Go?, Sewali K. Patel

Vanderbilt Law Review

On April 25, 1995, a notice titled "Naughty Oklahoma T- shirts" appeared on an America Online ("AOL") bulletin board. The notice advertised T-shirts with slogans such as "Visit Oklahoma... It's a BLAST!" and "Putting the kids to bed ... Oklahoma 1995." In short, the notice glorified the Oklahoma City bombings of 1995, which killed 168 people. Under the only known identity of "Ken ZZ03," the author invited readers to call "Ken" at the listed phone number, which belonged to a Mr. Kenneth Zeran. While Mr. Zeran's first name was in fact Ken, Mr. Zeran was not responsible for posting the …