SPRING 2006
Cyberlaw
Course No.:  9200-710-001
Course ID:  17105
Tu, Th 4:45 - 6:15 p.m.
Room W-206
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
dratler@uakron.edu,
dratler@neo.rr.com
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006   Jay Dratler, Jr.  
For permission, see CMI.


Course Description

Background

At the dawn of the twenty-first century, we are undergoing a revolution in telecommunications.  The Internet and the World Wide Web are still in their infancy.  Digital audio media are just beginning to hit their stride, and full-motion video, let alone true multimedia, is still in the embryonic stage.  The real promise of Voice-Over-Internet Protocol (VOIP) has yet to be realized; ultimately, it may provide world-wide telephone coverage at virtually zero marginal cost.  Yet all these and other new technologies are available in various forms today, and their mass commercialization at low prices and high quality is just around the corner.

What will happen when anyone with a video camcorder (or a computer to synthesize or animate multimedia works) can be a multimedia producer?  when videophone sessions become as ubiquitous and cheap as telephone conversations today?  What problems and possibilities will we face when multimedia productions—with full-motion video, digital-quality sound, and arbitrary consumer-selected content—are available to every home, in their full "broadband" glory, over the Web, over cable, by wireless, or by satellite?  when communicating with France or China is as easy, and nearly as cheap, as with Columbus?  when the volume of commerce on the Internet equals or exceeds that in "brick and mortar" stores—an eventuality that may be less than a decade away?

One recent development alone suggests the power of the Internet to change society radically.  The well-known search engine and Internet portal Google has agreed to put all public-domain works in the New York Public Library, as well as the libraries of several leading universities, on line with full-text search capability.  Although this ambitious project will take several years, when it is done every home, town and village with a computer will have direct and efficient access to most of humanity's learning and culture.  What will education and society be like when every child worldwide, no matter how poor his or her circumstances, has such access?  Will the world's supply of previously undiscovered geniuses explode?

No one can predict the future, but two things are certain. First, the revolution in telecommunications that is still under way will have tremendous economic, social, and political repercussions.  Second, the law will have to adapt to the great changes that this new technologies promotes.  The law will move slowly and ponderously, as it always does, with frequent missteps, providing full employment for generations of lawyers.

A few examples illustrate the vast changes that new technologies make possible.  Consider education.  Ten years from now, I may teach a course like this one by videoconferencing from my own home, and you may take it—with full video access to other students' comments and questions and my responses in real time—in the comfort of yours.  Imagine the Socratic method in your living room!  Or I may prepare a course like this one as a multimedia production, complete with sophisticated full-motion video aids, for you to take at your leisure, at a time of your choosing; you'll be able to stop the presentation at will and record your comments and questions in full-motion video for my later perusal and response.

Consider commerce.  One market-research firm predicted global Internet sales of $38.2 billion for all of 2002, a 48 percent increase over 2001.  In the U.S. alone, retail Internet sales were about $55 billion in 2003, and they were expected to grow 20 perceent in 2004, to a total of 6-7 percent of all retail sales.  At these rates of increase, e-commerce could rival "brick and mortar" commerce in value in a decade or so.

Will amazon.com put all local bookstores out of business?  Or will people still convene at "full-service" bookstores like Borders and Barnes and Noble for conversation, coffee, and the feel of a paper copy of the New York Times?  How many brick-and-mortar businesses will fail in competition with Internet businesses?  How many people will lose their jobs?  What will the mass migration to "cyberspace" do to our core cities and to the commercial real estate market generally?  Will we all live in pleasant mountain aeries, or at the beach, and work from home?

Consider privacy.  Many recent sordid revelations about politicians' personal lives came first from the Internet and only later appeared in the "mainstream" media.  Computerized records of on-line purchases may allow business or government to create comprehensive dossiers on our purchasing habits, proclivities and political views.  Will expansion of the Internet and the need to curb terrorism destroy privacy for people in public life?  in private life?  Will it weaken the accountability of journalists as their functions are taken over by anonymous "netizens" with no reputation for accuracy and nothing to lose?   If so, what effect will that have on political campaigns and the quality of public servants?  What effect will it have on every citizen's valuable right to be left alone?

More fundamentally, how will representative democracy change?  As law students, you already have experienced the increase in "transparency" that instant, on-line access to the law of the land provides.  But how will the same technology affect representative democracy?  Will our elected representatives become obsolete when important questions of public policy can be submitted for "real-time" electronic plebiscites?

Consider justice and the law.  The speed, geographic reach, and low cost of the Internet allow groups with common grievances to band together in their search for justice. They can seek counsel, on a pro bono basis or for pay, exchange information and documents, recruit new members, and even file papers electronically.  The ease of communicating has helped every group seeking justice, from people fighting poverty and racism, through Indian tribes, to those fighting tobacco and uncontrolled firearms.  Yet hate groups, paramilitary organizations, terrorists and pornographers have access to the same technologies.  Will the new technologies promote the dark side of human nature as much or more than the bright?

In theory, modern telecommunication technologies allow every person on the face of the planet to interact with every other, no matter how remote, almost as if in person.  The purposes of those communications can be as varied as human life: commerce, entertainment, education, politics, love, hate, justice, war, and revolution.  Electronic conversations in this "Virtual Global Village" will change not only the nature of business, education, and politics, but even personal relationships.  The resulting changes and social pressures may require re-examining our fundamental values, as well as our law.

Of course we will not cover all of these intriguing issues in this course.  Yet the technology, law and business practices that we study will affect their resolution.  Among other things, we will see first hand how blunt and often unresponsive an instrument the law may be when confronted with accelerating technological and social change.
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Course Content

The nascent Internet revolution will have such a widespread impact that no course could hope to cover it all.  This course therefore provides only a "sampler" of the many legal, economic, and political issues raised by the continuing revolution in telecommunication.  Among the areas we will cover are: free speech and the First Amendment, the control of unwanted communication (such as "spam"), intellectual property (chiefly trademarks and copyright), infrastructure and system protection (anti-"hacker" laws), and privacy.

We will also explore the basics of antitrust and competition policy, including an introduction to microeconomics, regulation, the convergence of media, and their effects on consumer choice.  Students often ask why this unit is included in the course.  The answer is both simple and important: today virtually the entire infrastructure of telecommunications in our country (including the Internet) is in private hands.  The First Amendment protects us against misuse of government power over information, but it governs only "state action."  What protects us against misuse of the enormous power over information now in the hands of such private companies as Microsoft, News Corp., and Time Warner, and perhaps even bigger ones in the future?  The primary answer is competition policy, as implemented principally in our antitrust laws.

Never before in our history has so much power over information been so hidden from citizens.  Do you know who designed the software that you use to browse the Web or send e-mail?  Do you know who controls your Internet Service Provider?  the "conduits" through which your ISP connects to the Internet?  the providers of "content" that you view on the Web?  the channels through which that content is provided?  Do you know who collects information stored in "cookies" on your computer and how it is used?  Each of these activities is controlled by one or more private firms (and ultimately by their stockholders), but finding out who and how is no longer as simple as looking at the masthead on your daily newspaper.  In such an environment, the only guarantee of fair and unbiased reporting and service is robust competition.  Accordingly, competition and the antitrust laws are not only vital to our economic health; they may ultimately be vital to our survival as a free society.

This course is necessarily interdisciplinary.  Besides the law, we will study technology, economics, business, and policy (including the economic policy underlying the antitrust laws). Our study of technology will come primarily from two sources: (1) reading the facts of decided cases and the legislative histories of recent statutes and (2) "hands on" experience surfing the Web.  Some assignments will involve investigating particular categories of Websites and recording and reporting the results of your exploration.

Economics is a vital part of the telecommunications revolution.  It is not the new technologies alone, but their dramatic effects on the economics of communication and commerce, that augur radical change.  Economics will determine which telecommunications modes and media succeed, whether the promise of the telecommunications revolution comes to pass and, if so, who benefits from it.  Hence we will keep one eye firmly fixed on economics throughout this course, particularly with regard to privacy, electronic commerce, and telecommunications policy. (Although an economic background is helpful, it is not required.  This course itself will provide all the economic background that you should need.)

Business will also be an underlying theme in much of our work.  Why do commercial firms act as they do?  What are the commercial prospects for the Internet and the World Wide Web?  What business motivations lie behind the cases and statutes that we read?  what other motivations?  What sort of motivations should the law encourage or discourage and how?  We must address these questions as we seek to understand the law and its evolution, so we will try to develop a "business sense" about the telecommunications revolution and the legal developments that address it.

Last but by no means least, there is policy.  The telecommunications revolution now under way is likely to have social and economic effects as profound as those of Gutenberg's invention of moveable type.  Some see in the Internet a harbinger of a new, more participatory democracy and ultimately a return to stronger community values in the midst of mass culture.  Others see a devilish tool of conspiracy, terrorism, invasion of privacy, persecution, and cheapening of cultural values.  Still others see a potential for vast social dislocation, as intermediaries of all types, from insurance and stock brokers to car dealers, lose their economic advantage and their jobs and are replaced by software and Web programmers.

Whatever one's initial view, it is clear that policy—including such fundamental values as liberty, autonomy, democracy, competition, and privacy—will affect and be affected by this technological revolution.  As we study recent statutes, we will see half measures and missteps in matching the law to policy, and we will ask how to correct or prevent them by appropriately interpreting or changing the law.
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Prerequisites

This course has no absolute course prerequisites, i.e., no courses are absolutely required before enrolling in this one.  You should be aware, however, that this course is an advanced course, with heavy emphasis on intellectual property and economic concepts and more than occasional reference to constitutional law.  You will get the most out of this course if you have taken (or take concurrently) Introduction to Intellectual Property or a course in trademarks and unfair competition or copyright.  Having taken (or taking concurrently) a course in antitrust law or basic constitutional law would also be helpful.

This course, however, does have prerequisites of a technical nature.  You must have access to a personal computer with e-mail and "Web-surfing" capability in order to enroll in this course.  All class announcements and assignments will be posted on this Website, and some may be given by e-mail alone. (See Electronic Communication).

Any kind of personal computer will do.  Your computer need not be IBM-compatible or run Windows.  Apple owners and Linux users are welcome.  If you do not have a personal computer of your own, you may still take this course.  Just see the Library staff for instruction on using the Library's computers to send and receive e-mail and "surf the Web."

If you have a laptop computer, you are welcome to bring it to class as long as you don't disturb other students (for example, by loud and manic typing).  The readings for this course will be offered primarily on this Website, in HTML format only. While you may print them out using your Web browser (Netscape Navigator or Microsoft Internet Explorer), you may find it easier to use them directly in your browser.  With your browser, for example, you can go to and return from footnotes at the click of a mouse, or you can use your browser's "Find and Replace" feature to find words or phrases in a long opinion or other reading.

Whatever your level of skill, you should check your electronic mail at least twice a week for mail relating to this course.  You should also check this Website at least 48 hours before each class to receive your reading assignment for that class.
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Pegagogic Approach

The revolution in telecommunications will affect virtually every field of human endeavor, and hence virtually every field of law. We will not have time to cover even the most significant issues in exhaustive detail.  Accordingly, this course will focus on important issues and fundamental concepts of law, economics, business, and policy, seeking to provide a basis for future understanding and further research.  The goal will be a broad overview and accurate understanding at the conceptual level. Our reading materials will be more varied than is usual in law school courses.  Of course there will be the usual edited cases, statutes, and regulatory materials.  However, there will be more and more difficult statutory material because many of the statutes that we will study are so new that they have not yet been fully digested by the courts.  You will therefore have to acquire the valuable skill of assimilating new statutory material aided only by its text and legislative history.  There will also be more than the usual use of explanatory materials from books and articles, as well as some current news reports.  The focus will be on analysis, understanding, and prediction, using the assigned reading materials as a springboard for discussion.  Some assignments will consist merely of statutory reading and applying the material read to hypothetical problems.
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Study Groups

Because this course is conceptually challenging and involves complex material, I strongly urge those who have study groups to maintain them, and those who do not to consider forming them, either in general or specially for this course.  No one (not even your professor!) sees all of the angles, all of the time, in complex legal situations.  Therefore having a regular "sounding board" and "reality check" among your peers can improve your understanding, as well as increase your confidence in yourself and your enjoyment of the course.
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Reading Material

Most readings for this course will be posted on this Website or (for the antitrust and competition policy unit only) given to you in the form of paper handouts.  Unless you plan to study from your laptop, you should print out each assignment and bring it to class with you.

Although most statutory reading material will be provided on line, I recommend that you bring to class any compendmium of intellectual property statutes that you may have bought for a course taken previously or concurrently.  My favorite is Paul Goldstein and Edmund W. Kitch, Unfair Competition, Trademark, Copyright and Patent: Selected Statutes and International Agreements (2005 ed., Foundation Press).  There are several equivalent commercial publications.  The best of these books contain not only the federal copyright and trademark statutes, to which we will frequently refer, but also the black letter of the Restatement of Unfair Competition and the most important statutes from other fields of intellectual property, as well as governing treaties and international agreements.

Please bring your reading materials and your statutory compendium with you to class every day.
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