Internet Law - Section 1
May 9, 2005
(Suggested time: 90 minutes) (75 out of 150 total exam points)
The Northeast News (NN) is the largest daily newspaper in the State of Northeast with a circulation of over a million copies sold each day and even more on Sunday. It has been published continuously since 1905 and first registered the name Northeast News as a trademark in 1950. NN operates a website at northeastnews.com. Its website features an online version of its newspaper. Recently, NN learned that Peter Paulson (PP) had registered three websites with the domain names mynortheastnews.com, northeastnewscustom.com and northeastnewssports.com. When anyone types in the names of any of those three sites or locates them with the use of a search engine, they are automatically redirected to another website operated by PP called abortioniskilling.com.
The content of the abortioniskilling.com website argues that abortion is wrong and that anyone who obtains an abortion or performs one is guilty of murder. The website also contains graphic images of aborted fetuses. The website contains no advertisements. On the bottom of the homepage of the website it contains a disclaimer stating that it has no connection with the Northeast News.
Northeast News has filed a lawsuit in the Federal District Court for the District of Northeast against Peter Paulson claiming trademark infringement as a result of his registration and use of the mynortheastnews.com, northeastnewscustom.com and northeastnewssports.com domain names. The lawsuit asserts claims under the Anticybersquatting Consumer Protection Act of 1999 (ACPA) and seeks both damages and injunctive relief. PP has filed a motion to dismiss on the ground that the court lacks personal jurisdiction over him because he resides in the State of Southwest, has not done any business in Northeast, and is not targeting Northeast by any of his activities. The Northeast long-arm statute allows the exercise of jurisdiction to the fullest extent allowed under the U.S. Constitution.
Because NN is dissatisfied with the attorneys currently representing the newspaper, you have been hired to advise NN about its options at this point. You have done some additional research and learned the following additional facts:
(1) PP has registered all three of the domain names that include the words “northeastnews” through an internet registrar called Initials Online located in Paris, France. Initials Online is an ICANN accredited registrar.
(2) PP resides in the State of Southwest, as he claims, and appears to have no connection to the State of Northeast other than through his internet activity.
(3) PP’s abortioniskilling.com website is served by PP from his home in the State of Southwest. His internet service provider is Southwest Internet, an ISP located in the State of Southwest. The redirect instruction is implemented by Initials Online in Paris, France.
(4) After NN filed suit against him, PP added to his website a claim that the Northeast News supports abortion. This claim is backed up by references to editorials the paper published opposing legislation that limited the rights of women to obtain abortions. NN has told you that each of the references is an accurate report of the paper’s editorial positions.
(5) While the abortioniskilling website does not sell any merchandise or accept any donations, it does contain a page of related links. One of the links is to the prolifemerchandise.com website that sells hats, shirts, neckties, and license plates with antiabortion themes. PP does not have any connection with the prolifemerchandise website and receives no financial benefit from including the link on his website.
(6) The abortioniskilling website contains a reader comment page. Comments from three readers who identify themselves by their first names and the fact that they live in Northeast are among the fifty comments currently posted on the reader comment page.
(7) The abortioniskilling website allows readers to sign up to receive a free monthly e-mail newsletter about the pro-life cause written by PP. The website does not provide any information about how many people have signed up to receive the newsletter or where they reside.
In providing the Northeast News with additional legal advice, the newspaper is interested in learning the answers (and accompanying analysis) to the following questions: (1) Is it likely that PP will succeed in getting the lawsuit dismissed based on a lack of personal jurisdiction? (25 points); (2) If that occurs, what other legal options will NN have in order to pursue its claims against PP? (25 points); and (3) If the court does find that there is personal jurisdiction over PP in Northeast, what arguments will NN present on the merits of its claims under the ACPA, what defenses will PP raise and how will NN respond to those defenses?(25 points).
(Suggested time: 90 minutes) (75 out of 150 total exam points)
Blogworlde.com is a website that allows subscribers to create blogs at no cost. It currently hosts thousands of blogs. Blogworlde is run by Larry Lincoln (LL) who administers the website in his spare time. To offset his costs of running blogworlde and to generate a small profit, LL solicits advertising for the blogworlde website. Blogworlde exercises no control over the content of blogs written by its subscribers.
Recently, LL installed RSS software on his website. RSS is a way to publish regular updates to web-based content in the form of a news feed or scroll bar displayed on a computer screen. Most RSS feeds contain headlines, links and brief summaries of new information posted on a website. Once subscribers sign up to receive an RSS feed, it is not necessary for the subscribers to visit the website supplying the feed in order to receive the RSS feed. Instead, the feed is automatically delivered to their computers at whatever interval the subscribers select. Anyone can receive an RSS feed once they download software to display RSS feeds. The software is widely available, often at no cost or little cost. Another important privacy protection feature of RSS is that, unlike a newsletter, you don’t have to give out your e-mail address in order to receive an RSS feed. After LL installed the RSS software, many of the blogs on the blogworlde website began to offer RSS feeds to their readers.
Blogchanger is one of the blogs on the blogworlde website. It is a very popular political blog written by Mary Morris (MM). Blogchanger allows readers to post comments in response to the commentary posted by MM. MM never censors the comments submitted to her blog. Recently blogchanger created an RSS feed that could be subscribed to by visitors to the site. In addition to items posted on the RSS feed by MM, blogchanger allows visitors to the website to submit items to be displayed on the RSS feed. The only requirement is that the item can’t be longer than 60 characters long. Each RSS feed item is only displayed on the feed for a brief period of time, usually no longer than one hour. Recent postings submitted to the blogchanger RSS feed by visitors to the site have included the following: “I hate Hillary - read about it on Conservativebuzz.com” and “Latest Bush Lies at bushbasher.blogger.com.” Both postings included live links to the websites where the content appears, as is typical of items displayed on RSS feeds.
In response to a recent series of blogchanger postings on the subject of Grokster, MM began to receive items for display on the blogchanger RSS feed like the following: “latest music for free” and “beat the system - free downloads.” By clicking on the links accompanying each item, the reader was taken to websites where copyrighted music was available at no cost in violation of U.S. copyright law. As was her practice, MM displayed each of the items on the blogchanger RSS feed without reviewing them or altering them in any way. In addition, MM did not attempt to activate the links to examine the content of the linked-to websites.
As a result of these and similar items displayed on the blogchanger RSS feed, a copyright infringement lawsuit has been filed by the music industry against both Larry Lincoln and Mary Morris charging each with contributory infringement and vicarious infringement. Both of the defendants have claimed that they are not liable for copyright infringement based on their actions since the infringing content did not appear on blogworlde and they are not responsible for the infringing content in any way. In addition, MM argues that she has only been notified by any of the plaintiffs that a link to copyrighted material was displayed on the blogchanger RSS feed on two occasions. On one of those occasions she removed the link immediately. On the other occasion, by the time she received the notification, the item was no longer being displayed on the feed.
You are a law clerk to the judge in the case. The judge has asked you to write a memorandum describing the arguments that can be made by the plaintiff copyright owners to support their claims of contributory and vicarious copyright infringement. The judge also wants you to describe any arguments available to LL and MM to support their position that they have not violated the plaintiffs’ copyrights. In addition, the judge would like you to consider the possible application of Section 512 of the Digital Millennium Copyright Act as an additional defense available to LL and MM.
END OF EXAMINATION