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 kimkworlddomination.com. 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 kimkworlddomination.com domain
name. The letters from KK’s attorney do not object to the use of Kim
Kardashian’s name in the content of the kimkworlddomination.com
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 kimkworlddomination.com 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 kimkworlddomination.com 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 meetup.com, 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 meetup.com
without her consent. Since the meetup.com profile was created, AA has
been flooded with emails sent through the meetup.com 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
meetup.com to ask it to take down the fake profile.
Meetup.com 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
meetup.com’s website. Twenty of the 2000 profiles on meetup.com were
posted by residents of Stone, including the one posted by CC. None of
meetup.com’s current advertisers are businesses located in Stone, but
one advertiser who paid $100 to post an ad on the meetup.com site for a
brief period in 2009 is a business located in the State of Stone. In
addition, meetup.com 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 meetup.com about the fake
profile, meetup.com initially promised AA that it would remove the
profile. However, meetup.com has failed to do so despite AA’s repeated
requests. Meetup.com has not given AA an explanation for its change of
mind, but AA suspects it is because her situation has generated
publicity for meetup.com, including media appearances by its founders.
Based on meetup.com’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
meetup.com 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 meetup.com to remove AA’s profile, and damages. The
defendants, meetup.com, 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 meetup.com 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 meetup.com uses to host its
website. The notice and takedown letters assert that the photo and
video posted as part of AA’s fake meetup.com 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 meetup.com and BHC respond to this letter in light of
the provisions of Section 512 of the DMCA?
(2) Both meetup.com 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?
END OF EXAMINATION