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Internet Exceptionalism

The court in Noah v. AOL held that online places are not
the same as brick and mortar places and online places have distinct
characteristics that make the internet an improper area for rigid
application of laws passed long before the advent of this unique and
wholly new medium for world-wide human communication.
Jurisdiction?
Establishing JX on the internet can be done through either:
 1) general JX, where the parties had physical presence, or a
continuous and systematic contact with the JX;
 2) consent, where JX is not challenged by the party; or
 3) specific JX, which requires either:
o 1) minimum contacts with the JX, or
o 2) that the defendant expressly aimed intentional
tortious actions at the JX and caused foreseeable harm
therein (the Effects Test); and
o the exercise of JX must ultimately comport with the
traditional notions of substantial justice and fair play.
 Minimum contacts are determined by looking at
the nature and quality of commercial activity
online. If the party merely passively publishes
content online, JX will only be proper under the
effects test, however test for JX over more
interactive sites will be based upon the extent of
the interactions and commercial exchanges.
Valid Contract Formed Online?
Online formation of a valid contract requires:
 1) reasonably conspicuous notice of the existence of contract
terms, and
 2) an unambiguous assent to be bound to those terms
(Specht).
 To determine if the method of assent online is unambiguous,
courts look at:
o 1) the specific terms at the time of use,
o 2) what user interaction was required to manifest
assent, and
o 3) whether the evidence of assent is credible.
 Further, the contract will not be enforced if it is illusory, due
to either a lack of consideration or the ability of one party to
unilaterally change the terms without limitation, or if there is
not sufficient evidence of the contract formed to meet the
statute of frauds, including evidence that the particular
individual in question assented. However, courts will not bail
out users who simply do not remember the terms.
Online Trespass to Chattels
Due to the concept of Internet Exceptionalism, in a
majority of the states, in order to establish an actionable claim for
electronic trespass to chattels, the plaintiff must show:
 1) actual use of the system which deprived the plaintiff of the
efficient functioning of the computer system, or
 2) unauthorized use that causes actual damage to the
computer system.
 Some courts also require the plaintiff to show that they at
least attempted self-help, and CA specifically defines
“damage” as electric signals causing, or threatening to cause
in the aggregate, a measurable loss to the computer system’s
resources.
Online Copyright Infringement?
To hold a valid copyright pursuant to the Copyright Act of
1976, the work must be:
 1) an original,
 2) work of authorship,
 3) fixed in a tangible medium for more than a mere transitory
period, and
 4) registered before the filing of the suit.
Once a valid copyright has been proven, its duration lasts for:
 the life of the author plus 70 years or
 the shorter of 95 years from the date of publication or
 120 years from the date of creation.
Next, to show direct infringement, the copyright holder must
show that there was copying-in-fact by either
 1) providing actual evidence of copying,
 2) showing that 100% of the work was copied, or
 3) showing a striking similarity together with sufficient access
to make independent creation unlikely;
o and that what was copied was too much, constituting
infringement, through both an objective analysis of the
individual elements of the work copied and the
subjective “heart of the work” test.
To prove third-party liability for infringement on the internet
under the Grokster test,
 there must first be a direct infringer, and then the plaintiff
must show that the third-party either:
o 1) knowingly induced, caused, or materially contributed
to the infringing activities of the direct infringers
(Contributory Infringement), or
o 2) had the ability or right to supervise the direct
infringers’ infringing acts and had a direct financial
interest therein (Vicarious Infringement).
o The plaintiff must also plead the right form of
infringement as seen in the Cartoon Network case.
Fair-Use Defense?
Even if the court finds the defendant liable for
infringement, they may still be able to claim exception through the
doctrine of fair use.
 To determine whether the exception of fair use should apply,
courts look at the:
o 1) purpose and character of the work,
o 2) the nature of the copyrighted work,
o 3) the amount and substantiality of the portion used
compared to the whole
 (under both an objective analysis, which looks at
the similarity of the elements, and under the
subjective analysis, which looks to the “heart of
the work”), and
o 4) the potential effect on the market value of the
copyrighted work
 (said by some courts to be the single most
important factor).
§512(c) – Safe Harbor?
17 U.S.C. §512(c) provides a safe harbor for an online
service provider against claims for copyright infringement as long as
the provider shows that they:
 1) are a service provider and not a content provider,
 2) stored the infringing material solely at the request of a
user,
 3) have a policy of terminating repeat infringers,
 4) reasonably implement the policy in 3,
 5) accommodate standard technical measures,
 6) designate an agent to receive the take-down notices,
 7) post that agent’s contact info on the website,
 8) expeditiously respond to notices, and
 9) not have prior knowledge or red flags about the
infringement, the right/ability to control the infringement, or
a direct financial interest therein.
Online Trademark Infringement?
To prove trademark infringement online, the plaintiff bears the
burden of making out the prima facie case, consisting of;
 1) ownership of a valid trademark,
o requiring distinctiveness (where Arbitrary, Fanciful, and
Suggestive marks are inherently distinct, yet
Descriptive and Generic marks require secondary
meaning),
 2) priority, which goes to the first party to use the mark in
commerce
o (where there is a split of authority on what constitutes a
use in commerce with some courts holding that
anything covered by the Commerce clause counts, and
others hold that the use must be in connection with the
sale, offer for sale, distribution, or advertising of a good
or service),
 3) defendant’s use of the mark in commerce
o (again, with the same split as above), and
 4) likelihood of consumer confusion,
o using either the Initial Interest Confusion test
 (which asks if the use of another’s trademark
reasonably calculated to capture initial consumer
attention, even though no actual sale is finally
completed as a result of the confusion) or
o the Sleekcraft factors, which are:
 1) strength of the mark,
 2) defendant’s use of the mark,
 3) similarity of sight/sound/meaning,
 4) evidence of actual confusion,
 5) defendant’s intent,
 6) marketing channels,
 7) degree of purchaser care, and
 8) potential expansion of both uses.
Trademark Dilution occurs where:
 1) the mark has achieved the status of Famous,
 2) the use is used in commerce,
 3) after the mark became famous,
 4) there is a likelihood of dilution through either blurring,
which impairs the mark’s distinctiveness, or tarnishing, which
harms the mark’s reputation.
Nominative Use Defense
The defendant may have a defense of nominative use if the
defendant’s use is:
 1) the only way, or one of only a few ways to refer to the
product,
 2) only what the defendant actually needs to use, and
 3) is not suggestive of endorsement.
Descriptive Fair Use
The defendant may have a Descriptive Fair Use defense
 if the mark is descriptive and the defendant’s use of the mark
is purely descriptive.
Cybersquatting
The defendant will be found guilty of cybersquatting if plaintiff
can show that defendant:
 1) had a bad faith intent to profit from using the domain, and
 2) the domain is identical or confusingly similar (Falwell).
Constitutionality of Law Regulating Pornography on the
Internet
 In Reno, the Supreme Court held that the Communications
Decency Act of 1996, designed to prevent minors from
viewing “indecent” and “patently offensive” content on the
internet, was unconstitutional because it was overbroad,
because it prohibited protected speech as well as
unprotected, and the CDA fails to provide any definition of
“indecent” and omits any requirement that the “patently
offensive material” lack serious literary, artistic, political or
scientific value.
 Then in Ashcroft, the court held that where there is a
challenge to a content-based speech restriction under First
Amendment, the burden of proof is on the government to
prove that proposed alternatives will not be as effective as
challenged statute.
Defamation
Defamation requires that the defendant made a:
 1) false statement of fact,
 2) to a third-party, which is
 3) injurious to the plaintiff’s reputation.
o Truth and opinion are defenses to a claim of
defamation, as well as the statutory safe harbor.
§230 – Safe Harbor
 The 47 U.S.C. §230 safe harbor holds that when the
defendant is the:
o 1) provider or user of any information service, system,
or access software that provides or enables computer
access by multiple users to a computer server, including
specifically a service or system that provides access to
the Internet and such systems operated or services
offered by libraries or educational institutions; the
defendant will not be
o 2) treated as the publisher or speaker (excluding
federal crimes and IP laws) of content which is
o 3) provided by any person or entity, other than the
defendant, who is in whole or in part responsible for the
creation or development of the content.