law of e commerce terms midterm

minimum contacts test

Under this test we ask whether there has veen "some act by which the defendant purposefully avail[ed] itself the privilege of conducting activities within the Forum State, thus invoking the benefits and its protection of its laws"

1) Identify the type of jurisdiction (general or specific)

2) check for minimum contacts

3) relatedness

4) apply the fairness factors (Burden on defendant, Forum state's interest, Plaintiff's interest in convenient relief, Judicial efficiency, Shared substantive policy interests)

If purposeful availment + relatedness + fairness → jurisdiction proper.

If missing → jurisdiction violates due process.

interactive website

Websites where a user can exchange information with the host computer

Jurisdiction is determined by examining the level of interactivity and the commercial nature of the exchange of information

miller test for obscenity

1. Must appeal to the average person's prurient (shameful, morbid) interest in sex

2. Depicted sexual content in a "patnetly offensive way" as defines by community standards

3. Taken as a whole, lack serious literary, artistic, political or scientific value

public forum

To determine if a public forum was created

Courts look "to the policy and practice of the government" as well as "the nature of the property and its compatibility with expressive activity to discern the government's intent"

Opening an instrumentality of communication "for discriminate use by the general public" creates a general forum

publisher vs distributor

publisher = content creator and project manager, responsible for the development, funding, and marketing of a work.

distributor = logitisical partner that moves the completed product from the publisher to retailers and the end consumer

information content provider

any person or entity responsible for creating or developing information shared on interactive computer services. While ICPs themselves are responsible for their created content, internet platforms that host user-generated content are protected from liability for that third-party content by Section 230 of the Communications Decency Act, which treats them as publishers or speakers of that information. This immunity for platforms allows for a wide range of online services, from social media to marketplaces, to operate without being held accountable for every piece of content posted by their users.

Contributory liability

: Technology capable of substantial non-infringing uses cannot create liability merely because some infringe (the Sony safe harbor).

safe harbor

DMCA Safe Harbor (§512(c)), which protects service providers if they remove infringing material upon notice.

DMCA Safe Harbor: Platforms are protected so long as they:

1) Lack actual or red flag knowledge of specific infringements, and

2) Act expeditiously to remove material when notified.

Safe harbor applies unless: the service provider has actual or "red flag" knowledge of specific infringement, fails to act, or directly benefits while controlling infringement.

General awareness of infringement not enough.

Willful blindness could substitute for knowledge in some cases.

Sony Corp. v. Universal City Studios (Betamax) (U.S. 1984)

To qualify, the content / service provider must:

Implement and notify users of a policy to terminate infringers;

Designate a "copyright agent" to receive infringement complaints;

Provide means for copyright owner to request deletion of infringing content;

Be unaware of infringement (can't turn a "blind eye"); and

"respond expeditiously to remove, or disable access to, the material."

What is "expeditiously"? No court has defined this.

Probably not waiting 2 weeks; 24-48 hours probably sufficient.

Notice of alleged infringement = "DMCA takedown notice"

If copyrighted work is being used for parody, not infringement → does not need to be taken down

Counter-notification (§512(g)):

Once content is taken down, original poster can request it be put back up

Counter-notification damages (§512(f)):

Imposes liability on anyone who files DMCA notices without a good faith belief that the material infringes on the copyright holder's rights

general jurisdiction

defendent is at "home" (incoporated or principal place of business)

specific jurisdiction

lawsuit arises out of defendant's contacts with the forum

In determining whether specific jurisdiction exists we ask:

1) Whether the defendant purposefully availed itself of the privileges of conducting activities in the forum state

2) Whether the plaintiffs claim arises out of the defendant's forum-related activities in the forum state

3) "Whether the exercise of personal jurisdiction over the defendant would be constitutionally reasonable"

purpose of statute 230

1) it maintains the robust nature of Internet communication and, accordingly... keeps gov interference in the medium to a minimum

2) Immunity provided protects against the "hecklers veto" that would chill free speech

w/o 230 people who perceive themselves as the objects of unwelcome speech on the internet could threaten litigation against interactive computer service providers, who would then face a choice: remove the content or face litigation costs and potential liability

3) Encourages interactive computer service providers to self-regulate

2 formulations of a rule providing when the CDA does not bar a plaintiffs claim

1) District court said that a "website owner who intentionally encourages illegal or actionable third-party postings to which he adds in jis own comments ratifying or adopting the posts becomes a "creator" or "developer" of that content and is not entitled to immunity

2) The district court said that if website owners, as in the instant case, invite invidious postings, elaborate on them with comments of their own and call upon others to respond in kind, the immunity foes not apply

To determine if a public forum was created

Courts look "to the policy and practice of the government" as well as "the nature of the property and its compatibility with expressive activity to discern the government's intent"

Opening an instrumentality of communication "for discriminating use by the general public" creates a general forum

standing

1) injury in face

2) causual relationship

3) injury will be redressed by a favorable decision

how does venue work on the internet

venue = proper geographic neighborhood

how it works on the internet :

By operating business in the state

Significant or meaningful connection between the defendant and state where the lawsuit is filed

Defendant sets foot in the state and establishes jurisdiction

Minimum contacts

By consent(contract, registered agent, or forum selection clauses, including click-wrap agreements)

in rem jurisdiction

jurisdiction based on claims against property

how can a business be liable for cybertorts

First, a plaintiff needs to establish standing:

Three requirements

1) Injury in fact

An invasion of a legally protected interest that is

concrete and particularized, and

actual or imminent, not conjectural or hypothetical

2) Causal relationship

Between the injury and the challenged conduct

tracing the injury to the defendant's action of the defendant

3) Injury will be redressed by a favorable decision

the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative

copyright act of 1976

defines "limited times" for the exclusive right to the author's "writings and discoveries"

Protection = life of author + 50 yrs (now 70)

For anonymous/pseudonymous/works-for-hire → 75 yrs from publication or 100 yrs from creation (whichever first)

Time runs from creation, not publication

Pre-existing works = 75 yrs from publication

U.S. aligned with international standards (Berne/Universal Convention)

how to get a copyright

Prepare application → file with U.S. Copyright Office (can be online or paper).

Pay filing fee → amount depends on type of work & filing method.

Deposit a copy → send the required copy(ies) of the work (digital upload or physical).

Copyright Office review → checks application, work, and compliance.

Certificate issued → official registration mailed if approved.

Visual artists rights act of 1990 (VARA)

protects "moral rights" of works of visual art (paintings, drawings, prints, etc) either single edition otr less then 200 signed and numbered copies

Right to prevent use of one's name on any work the author didn't create

Right to prevent use of one's name on any work that has been distorted, mutilated or modified in any way prejudicial to the author's honor or reputation

Right to prevent distortion, mutilation or modification that would prejudice author's honor or reputation

Applies to both finished works and "unfinished works"( finished when it becomes fixed in a medium of expression)

remedies for VARA violations

Damages

$750-$30,000

Court has discretion to increase damages up to $150,000

Also has discretion to decrease to $200 if infringer was unaware and did not believe he committed infringement

Disgorgement of profits

Injunctions

Impoundment and/or destruction of the work

creative common license

Alternative to copyrights

Common on the Internet

Contractual arrangement as opposed to statute (a term of condition for downloading the material in question)

A more flexible approach"

Goes from "all rights reserved" to "some rights preserved"

Supposed to address a bunch of problems with copyrights such as:

1) Copyrights can be expensive

2) Can take time

30 Rigid - all or nothing

Six Different Creative Commons Licenses

First 3 commercial, last 3 - non commercial

Main distinctions is commercial or noncommerical

1) Attribution: others can distribute, remix, tweak, and build upon author's work, even commercially, so long as they credit the author for the original work ("copyleft"; open source software licenses)

2) Attribution - share-alike (Wikipedia licensing scheme): others can remix, tweak, and build upon author's work, even commercially, so long as they credit the author for the original work; new creations must also use same Creative Commons license.

Can't create new work and copyright it or wall it off, has to be something other people can work off of

3) Attribution - no derivatives: redistribution, commercial and non-commercial, allowed, with no derivative works, credit passed to original author

Still a little more flexible then copyrights

Can distribute for commercial or non commercial with authors permission, and can't make changes to movie

4) Attribution - non-commercial: others can remix, tweak, and build upon author's work, non-commercially, so long as they credit the author for the original work; do not have to license derivative works on same term

5) Attribution - non-commercial - share-alike: others can remix, tweak, and build upon author's work, non-commercially, so long as they credit the author for the original work; new creations must also use same Creative Commons license

6) Attribution - non-commercial - no derivatives (most restrictive): Only allows others to download works and share them as long as they credit author for original work; users cannot change them in any way or use them commercially

Defenses to a civil copyright claim

Permission from copyright holder

Copyright expired

Public domain

Not "published or distributed"

Challenge the validity of the copyright

Jurisdiction

De minimis copying of the copyrighted material

Independent creation

Fair use

Parody

interlocutary appeal

appeal of a trial court ruling before the final judgement in a case

only allowed when

1) the issue is seperable from the merits of the case

2) the issue is too important to defer (serious effect on rights)

3) waiting for final judgement would cause irreperable harm

de novo

a standard of review where the appellate court re-examines an issue from scratch, giving no deference to the trial courts conclusion

material contribution test

a website loses section 230 immunity if it materially contributes to the illegality of user content

no material contribution -> immune, material contribution -> not immune

post hoc

describes a justification, reasoning, or evidence offered after the fact, rather than at the time the original decision or action was made

after-the-fact excuses

ratification

when a person or entity accepts and affirms for an act that was completely authorized

elements:

1) knowledge - the principal had full knowledge of all material facts about the act

2) acceptance - principal affirmed, adopted, or accepted the act (can be explicit or implicit)

3)authority - principal had power to authorize act at the time it was done

4) intent - ratification must show an intent to be bound (silence, or benefit-taking can sometimes imply)

NY GBL section 349

deceptive acts or practices

Prohibits engaging in deceptive acts or practices in any business, trade, or commerce in New York.

NY GBL section 250

false advertising

makes false advertising in the conduct of business, trade, or commerce unlawful

libel per se

aka defamation per se

category of defamtion where the statement is so obviosuly harmfil to someones reputation that the plaintiff does not need to prove special damages (economic issues)

prima face case

minimum # of facts a plaintiff must present to establish each element of a legal claim

a plaintiff makes a prima face case when they present sufficent evidence for every required element of their claim

fair housing act (FHA)

Protects against discrimination in housing.