Internet Law - Section 1
Final Examination
Professor Harpaz
December 15, 2010    

Question I
(Suggested Time: 60 minutes) (50 out of 150 total exam points)

    In February, 2009, Mary Morgan (MM) registered the domain name The website advances the view that Kim Kardashian (KK) and her family are positioning themselves to take over the world. It uses as evidence of this planned world domination the various TV shows, business ventures, magazine articles, and other forms of publicity the Kardashians have benefitted from in recent years. It imagines a political future for the family with Kris Jenner (Kim’s mother) running for president and defeating Sarah Palin. The website attracts a fair amount of traffic, but does not sell goods or include advertising.

    MM has come to you for legal advice. Based on correspondence she has received from Kim Kardashian’s attorney, MM is concerned that KK will soon file an administrative proceeding against her, utilizing ICANN’s Uniform Dispute Resolution Policy (UDRP), seeking to force her to stop using the domain name. The letters from KK’s attorney do not object to the use of Kim Kardashian’s name in the content of the website, but only object to the domain name that MM has registered. She has investigated and learned that Kim Kardashian has registered several trademarks in the Kim Kardashian name dating back to 2007. These are used in connection with the sale of products including makeup, jewelry, and clothing, as well as for entertainment services, namely live, televised and movie appearances by a professional entertainer and personal appearances by a media celebrity, model, and actress. In addition, she has a registered trademark in KK Kim Kardashian which is used to sell cosmetics, fragrances, handbags, purses, wallets, and tote bags.  The KK Kim Kardashian mark consists of two stylized “K”s back to back, superimposed on the letters “I” and “M”; the wording “KIM KARDASHIAN” appears underneath.

    In providing legal advice to MM, please answer the following four questions:

(1) What arguments could be made in support of a complaint under the UDRP by Kim Kardashian?
(2) What arguments could MM make in response to such a complaint and in defense of her right to use the domain name?
(3) Would MM be better off taking the initiative and immediately filing a declaratory judgment action under the Anticybersquatting Consumer Protection Act and/or the Federal Trademark Dilution Act to establish that she is entitled to use the domain name?
(4) What arguments could MM make in support of such a declaratory judgment action that might be more successful in a U.S. court than under the UDRP arbitration process?

Question II - This question consists of three parts.

Question II - Part One
(Suggested time: 60 minutes) (50 points out of 150 total exam points)

    Andrea Ames (AA), who resides in the State of Stone, is the former girlfriend of Chris Collins (CC), another Stone resident. AA and CC met at Stone State University where they are currently both seniors. After AA ended their relationship, CC posted both a nude photo of AA and a video of AA and CC having sex on the internet. CC did so by creating a fake profile for AA on, an internet dating site. The profile, in addition to the photo and video, included AA’s email address and work and home phone numbers and said she was interested in meeting sexually adventurous partners. The picture was taken and the video filmed without AA’s knowledge and both were placed on without her consent. Since the profile was created, AA has been flooded with emails sent through the website as well as phone calls at both work and home. AA has been distraught since the emails and calls began. She has called the police to ask whether a crime has been committed and has thus far only been told that the police are investigating the matter. In addition, she has contacted to ask it to take down the fake profile. was created in 2009 by Dwayne Dennis (DD) and Eric Edmonds (EE), residents of California. They are its only employees and they work out of a small home office in the basement of a house owned by DD’s parents in California. Since they began their website, 2000 profiles have been posted on their site and they have generated $50,000 in revenue from advertising. The profiles are posted at no cost. Revenue is generated by advertising that appears on’s website. Twenty of the 2000 profiles on were posted by residents of Stone, including the one posted by CC. None of’s current advertisers are businesses located in Stone, but one advertiser who paid $100 to post an ad on the site for a brief period in 2009 is a business located in the State of Stone. In addition, places ads on a number of websites. Many of these are based on reciprocity arrangements with other websites, but several require payment. Of the paid for ads, one ad appears on the website of a company headquartered in the State of Stone. Neither DD nor EE have ever been to Stone.   

    After AA contacted about the fake profile, initially promised AA that it would remove the profile. However, has failed to do so despite AA’s repeated requests. has not given AA an explanation for its change of mind, but AA suspects it is because her situation has generated publicity for, including media appearances by its founders. Based on’s promise to remove the profile, AA did not accept media offers to tell her side of the story and did not pursue disciplinary action at Stone State University under the Student Conduct Code.  

    AA has now filed suit in the State of Stone against and DD and EE, its two founders, based on a breach of contract theory that relies on promissory estoppel as a substitute for consideration. The elements of the cause of action are (1) a promise; (2) which the promisor, as a reasonable person, could foresee would induce conduct of the kind which occurred; (3) actual reliance on the promise; (4) resulting in a change in position; and (5) justice requires enforcement of the promise. The suit seeks injunctive relief ordering to remove AA’s profile, and damages. The defendants,, DD, and EE, have filed a motion to dismiss the action. It asserts three grounds for the motion: (1) the suit should be dismissed because there is no personal jurisdiction over the defendants despite the fact that the State of Stone’s long-arm statute extends to all cases where personal jurisdiction could be asserted over a nonresident defendant consistent with the Fourteenth Amendment Due Process Clause; (2) the defendants are immune from suit under Section 230 of the Communications Decency Act (pages 492-93 in casebook); and (3) the defendants’ actions are protected by the First Amendment.

    You are a law clerk to the judge assigned to the case. The judge asks you to write an analysis of the arguments that the defendants can make in support of the three grounds they have asserted in their motion to dismiss as well as the arguments that AA can make in response to the motion to dismiss to argue that none of the three grounds justify the dismissal of her lawsuit.

Question II - Part Two
(Suggested time: 30 minutes) (25 points out of 150 total exam points)

    AA has also had her attorney send notice and takedown letters to the designated agents for and Business Host Co. (BHC) under Section 512 of the Digital Millennium Copyright Act (DMCA) (pages 520-24 in casebook). BHC, a webhosting company located in California, is the company that uses to host its website. The notice and takedown letters assert that the photo and video posted as part of AA’s fake profile are copyrighted materials and that AA and not CC is the copyright owner. Further, the letters assert that the material has been posted by CC without AA’s consent. The letter asks that both the photo and video be taken down immediately. The letter includes all of the elements required by Section 512 (c)(3).  

Please provide answers to the following two questions:
(1) How should and BHC respond to this letter in light of the provisions of Section 512 of the DMCA?
(2) Both and BHC doubt that AA is the copyright owner of the photo and video since she is the subject and not the photographer or videographer, but they cannot be certain of this fact. Should their belief that her copyright claim is not valid affect their response to the letters they have received?

Question II - Part Three
(Suggested time: 30 minutes) (25 points out of 150 total exam points)
    The police have forwarded the information about CC’s actions to the District Attorney’s Office. The District Attorney is investigating whether she can charge CC with a crime under the State of Stone Criminal Code. Section 21 of the Stone Criminal Code makes it a crime to engage in harassment by stalking. The law was enacted in 1987. The District Attorney is considering indicting CC under Section 21 which provides as follows:

(1) A person commits harassment by stalking if, with intent to harass, annoy, or alarm another person, he or she commits any of the following acts within the State of Stone:

(a) Strikes, shoves, kicks, or otherwise subjects a person to physical contact; or
(b) In a public place directs obscene language, obscene images, or an obscene gesture to or at another person; or
(c) Follows a person in or about a public place; or
(d) Initiates communication with a person, anonymously or otherwise by telephone or mail, in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone or mail which is obscene; or
(e) Makes a telephone call or causes a telephone to ring repeatedly, whether or not a conversation ensues, with no purpose of legitimate conversation; or
(f) Makes repeated communications at inconvenient hours that invade the privacy of another and interfere in the use and enjoyment of another's home or private residence or other private property; or
(g) Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to another in a manner likely to provoke a violent or disorderly response.

    The District Attorney is considering indicting CC under subsections (b), (d), and (g). What arguments can she make that each of these subsections applies to CC’s conduct? What arguments can be made that each of these subsections does not apply to CC’s conduct?