Cyberlaw - Section 1
May 3, 1999
(Suggested time: 60 minutes) ( 40 out of 120 total exam points)
A "zipper" is an electronic message board, usually rectangular in shape, that displays a constantly moving line of text such as news headlines, stock prices, weather reports, or advertising slogans. Such zippers can often be seen moving around the face of buildings in prominent places such as Times Square in New York City, and increasingly in other places such as inside stores, affixed to newsstands and on billboards.
Recently, the City of Springdale, in order to increase citizen involvement in issues of public concern and reduce voter apathy, sponsored a competition to find ways to accomplish these goals. The winning entry suggested that the city create an electronic message board, or zipper, that would be displayed in a prominent location in front of city hall. The zipper would be linked to a Web page created by the city. Residents of the city could type messages on the page and those messages would be displayed on the Web page and on the zipper in front of city hall.
The City of Springdale implemented this suggestion by erecting a zipper in front of city hall. The zipper is linked to a Web page with the address of www.citizenzip.gov. City residents who fill out online registration forms giving their name and proof they reside within the city are then permitted to send e-mail messages to the Web page and the zipper. Each message is permanently displayed on the citizenzip Web page. In addition, each message is automatically displayed on the zipper for five minutes and then replaced with a new message. Messages sent to the zipper are rotated for a 24-hour period before being retired from the system. Messages appear as written by the sender and are usually unsigned, although senders can sign their names if they choose.
The zipper has now been in operation for several months. During that time, the content of the Web page and the zipper have frequently caused upset at city hall which has received numerous complaints about particular messages. Complaints have been received as a result of foul language, allegedly defamatory messages, racist and sexist remarks, threats of violence and sexually offensive messages. Local newspaper, radio and television stations regularly report on the content of the zipper and it has even received coverage in the national media.
In order to respond to the complaints, the city has decided to assign one of its employees to moderate the Web page and to screen e-mail messages before they are posted on the page and on the zipper. The monitor is to enforce a resolution adopted by the city council in response to the numerous complaints received about zipper messages. The resolution reads as follows: "The citizenzip Web page and the city hall zipper were created to encourage public discourse on issues of public concern. They were not created to allow attacks directed at particular individuals or to encourage citizens to speak in an uncivil way. Citizen discourse is effective only if citizens show respect for each other and engage in civil discourse. Messages will not be displayed if they depart from any of these standards."
Several weeks ago, Janet Adams, a resident of Springdale, accessed the citizenzip Web page and sent an anonymous e-mail message that read "Fuck the mayor, everyone else does." The message was not displayed on the Web page or the zipper as a result of the city moderator's decision that the message was insulting to a particular individual and contained uncivil discourse because of its use of foul language."
Ms. Adams has filed suit against the City of Springdale as a result of the censorship of her e-mail message claiming that the city's actions violated her rights under the First Amendment to the United States Constitution. You are a law clerk to the judge assigned to the case. The judge has asked you to write a memorandum of law discussing the First Amendment arguments available to Ms. Adams in challenging the city's censorship of her message as well as the arguments available to the City of Springdale in defense of its actions.
(Suggested time: 45 minutes) (30 out of 120 total exam points)
NOTE: Question II is not a typical exam question. It is an experiment to attempt to give you an opportunity to employ in a creative way the use of analogies as applied to aspects of the Internet. Grading the answers to the question will require some creativity as well. Try your best to answer the question in the spirit in which it is asked.
The practice of one Web site creating a hyperlink, usually called a link, to another Web site is a common practice on the World Wide Web. Recently, complaints about this practice have begun to surface in a variety of forms. For example, the owners of registered trademarks that appear as a logo or Web address linking one Web site to another have begun to complain that the practice is a trademark infringement.
Legislators have begun to consider whether they should enact legislation that would, at least in some instances, require the permission of a Web site operator before a link to that site could be created by the operator of another site. Lawmakers are somewhat confused about how they should view the practice of linking. They are seeking ideas about analogies that they might be able to use to help them to think through the issues of whether links should be able to be freely created or whether some controls on such links should be imposed.
You are a consultant to a think tank that devotes itself to issues arising in the use of new technology. You have been asked to suggest several analogies to use in thinking about links and to at least tentatively explore the consequences of those analogies. Your answer should contain at least two possible analogies and your thoughts about whether each of the analogies you suggest should encourage or discourage lawmakers to regulate the practice of creating links.
(Suggested time: 75 minutes) (50 out of 120 total exam points)
Despite some powerful arguments against discouraging the practice of unauthorized hyperlinks, the Commonwealth of Virginia recently enacted a statute called the Virginia Unauthorized Internet Hyperlink Act of 1999 (VUIHA). The critical provisions of the statute provide as follows:
101. (a) a person, partnership, corporation, organization, institution, or any other entity that maintains a Web page, hereinafter referred to as an operator or linker, shall be liable for including a hyperlink to another Web page without the permission of the operator of the linked Web site.
(b) A person, partnership, corporation, organization, institution, or any other entity that maintains a Web page, hereinafter referred to as an operator or linkee, is entitled to refuse permission to create a link to its site if the linkee has reasonable grounds to believe that it will suffer significant harm to its interests, whether commercial or noncommercial and including intangible interests such as reputation, as a result of the creation of the link.
(c) If permission to create a link is refused for any reason other than those specified in section (b), the linkee will be barred from bringing suit under this statute.
(d) This statute shall apply to unauthorized links to Web sites that are maintained by residents of the Commonwealth of Virginia, or are hosted on servers that are physically present in the Commonwealth including those of interactive computer service providers such as America Online (AOL).
(e) Violations of this statute are actionable and can result in both injunctive and monetary relief.
Shortly after the enactment of VUIHA, Allen Potter, a resident of Virginia and the operator of a Web site located at www.mysterywriter.com brought suit under the statute. Mr. Potter sells a series of workbooks to help beginning mystery writers develop their craft. The books are available for sale through his Web site. Mr. Potter recently became aware that Lucy Carrington, the author of a series of popular mystery books who maintains a Web site at www.lucycarrington.com had created a link to his mysterywriter site without his permission.
Ms. Carrington lives in New Mexico and her Web site is hosted through a server located in New Mexico. Ms. Carrington's Web site includes an opportunity for fans of her mysteries to send Ms. Carrington e-mail as well as to read a newsletter intended to help beginning writers who want to try their hand at writing mysteries. Among the pieces of advice Ms. Carrington offers readers of her newsletters is that commercial authoring tools such as Mr. Potter's mystery writer workbooks are not an effective way to become a mystery writer. In discussing this subject she includes a link to Mr. Potter's mysterywriter Web site. Fans of Ms. Carrington can subscribe to her newsletter at no cost by filling out a form with their e-mail address. Subscribers receive new issues of the newsletter automatically. Ms. Carrington currently has 25 residents of Virginia among her subscribers. Nonsubscribers can read new issues by accessing Ms. Carrington's Web site. Ms. Carrington's Web site also contains lists and brief descriptions of all of her books and a list of bookstores where her books can be purchased as well as links to several online sellers of her books. Ms. Carrington does not sell copies of her books or any other products on her Web site.
Mr. Potter believes that Ms. Carrington's unfavorable reference to his mystery writer workbooks will be commercially harmful to him. Mr. Potter informed Ms. Carrington that her link to his site is unauthorized and asked her to eliminate the link. Shortly after she refused his request, he filed his lawsuit alleging a violation of the Virginia Unauthorized Internet Hyperlink Act.
Ms. Carrington has come to you for legal advice. In advising her please describe the legal arguments you would make on her behalf in responding to Mr. Potter's lawsuit as well as the legal arguments you expect Mr. Potter to make in response to your arguments.
END OF EXAMINATION