Cyberlaw - Section 1
Professor Harpaz
Final Examination
December 21, 2000
Question I
(Suggested time: 60 minutes) (50 out of 150 total exam points)
Roger Newman is a retired local government employee. Mr. Newman is the author and publisher of The Corruption Chronicle (the Chronicle), a Web-based nonprofit publication he has published for the past three years. New editions of the Chronicle appear twice a month. Although Mr. Newman lives in Florida, the Chronicle reports examples of government corruption throughout the country. The stories it reports usually are provided by confidential sources, often government employees, who inform Mr. Newman about corruption they are aware of through their jobs in various government offices. The current edition as well as back issues of the Chronicle can be read on its Web site at www.corruptionchronicle.com. In addition, readers can subscribe at no cost to the Chronicle by signing up on its Web site. Subscribers are automatically e-mailed each new edition of the Chronicle. The Chronicle currently has 5000 subscribers and approximately 10,000 daily visitors. The Chronicle is also available through links appearing on various other Web sites. Mr. Newman aggressively pursues every opportunity to establish links to his site. He estimates that at least 200 links to his site exist and that the links produce many new readers and subscribers for his publication.
Last year, Roger Newman published a series of articles about government corruption in the City of Madison, Tennessee. His investigations resulted in the indictment and conviction of two Madison government officials. While Mr. Newman’s investigations and reporting have sometimes resulted in criminal prosecutions of government employees, he has also been accused of libel and threatened with lawsuits on a number of occasions although none of those threatened lawsuits were ever filed. In several instances, he has retracted charges he previously published to avoid a potential lawsuit. In other instances, the threatened lawsuits were never filed for unstated reasons. The most recent libel accusation occurred over a year ago.
Mr. Newman has attempted to establish links between his Web site and the sites of cities and towns throughout the country where official government Web sites permit such linking. He has been particularly interested in establishing links with the sites of government units he has written about in his publication. In pursuing this objective, recently he contacted the City of Madison, Tennessee. Madison maintains a Web site for the city at www.madisontennessee.gov. The site contains information about various government services, how to contact government officials, resources available within the city and activities taking place in the city.
The site also contains a page of links to other sites of interest to city residents including a local technical college, a law firm located in the city, several Internet service providers, a local newspaper, several private social service organizations serving the city, several local restaurants and other local businesses. The page of links contains the following disclaimer: “The city is not responsible for the content of material contained on linked sites. The city cannot attest to the accuracy of the content of such sites since it does not review, screen, author or in any other way participate in the creation of the content on such sites. The creation of a link does not signify approval or sponsorship by the city of the linked site.”
The Madison site informs readers that requests to create additional links should be sent by e-mail to Steve Cord, Madison’s computer operations manager. Mr. Cord responds to these requests on a case-by-case basis. The only written standards that govern Mr. Cord’s decisions require that the linked sites: (1) provide information of interest to city residents, (2) not contain sexually explicit material that would be harmful to children, (3) not contain profanity and (4) not contain defamatory material that might result in legal liability for the city. Using these four standards, Mr. Cord has rejected two prior linking requests from adult entertainment sites, but has granted all other requests.
Mr. Newman has asked the City of Madison to include a link to his Corruption Chronicles Web site on its page of links. Mr. Cord, on behalf of the city, has rejected his request on the ground that his is not a local publication with information of interest to city residents and that his publication contains defamatory material that might result in legal liability for the city.
Mr. Newman has come to you for legal advice. He is considering bringing a lawsuit against the City of Madison claiming that the city violated his First Amendment rights by its refusal of his linking request. Your job is to describe all the legal arguments you would make on behalf of Mr. Newman in a potential suit against the city asserting a violation of his First Amendment rights as well as the responses you would expect to be made by the City of Madison in defending against such a lawsuit.
Question II
(Suggested time: 60 minutes) (50 out of 150 total exam points)
SOAR (Save Our Artistic Resources) is a non-profit organization that helps to preserve works of art. SOAR is headquartered in California where it has office space and several volunteer full and part-time employees. Among its projects, it trains volunteers in the skills of artistic preservation and sponsors projects to restore murals and other large works of art and architecture; it funds research into preservation techniques to preserve paintings, murals and manuscripts; and it films the preforming arts such as dance performances, stage plays and concerts to retain a permanent record of those events. SOAR receives the majority of its funding from several large foundations and wealthy private donors. Persons participating in its training programs and artistic preservation projects are required to pay their own expenses as well as a fee to participate in the training program.
SOAR has a Web site located at www.soar.org. Its site describes the activities it engages in and allows visitors to the site to sign up to receive e-mail updates on the progress of SOAR artistic preservation projects as well as the initiation of new projects. SOAR’s site lists scheduled training programs and the fees required of participants in those programs. SOAR’s Web site also describes the sources of its funding including its foundation sponsors as well as several large donors who have allowed their names to be used. The site tells readers that if they are interested in contributing to SOAR or if they can help to identify any additional sources of funding, they should please contact SOAR by mail, phone or e-mail for additional information. Persons who contact SOAR about contributing funds are asked for their mailing address and are sent a fundraising request via the U.S. Postal Service.
Recently, SOAR received a letter from the Commonwealth of Massachusetts Division of Charities. SOAR was instructed that as a result of making its Web site available to residents of Massachusetts, it was required under Massachusetts law to register as a charitable organization and pay an annual fee to the Division of Charities. SOAR was informed by the Division of Charities that it could be subject to fine and imprisonment if it continued to solicit funds from Massachusetts residents on its Web site without a required certificate of registration. In addition, the Commonwealth threatened to bring a civil action against SOAR in the courts of Massachusetts seeking to enjoin its unauthorized charitable solicitation. SOAR was given 30 days to respond to the Commonwealth.
The relevant provision of Massachusetts law provides:
§ 19. Certain Charitable Organizations Intending to Solicit Contributions Required to Register
Every charitable organization which intends to solicit contributions from persons within the commonwealth shall, prior to any such solicitation, pay an annual registration fee in the amount of $250 and file an annual registration statement with the Division of Charities upon prescribed forms, which shall be refiled in the next and each following year in which such charitable organization is engaged in solicitation activities; provided, that the provisions of this chapter have been complied with, the director of the division shall issue a certificate of registration to a charitable organization. No charitable organization required to be registered under this section shall solicit funds without a valid certificate of registration. Failure to file the required registration statement and pay the required annual registration fee shall result in the suspension or cancellation of a certificate of registration. Solicitation without a required certificate of registration may result in a fine of up to $1000 or imprisonment for not more than one year, or both. In addition, the Division of Charities may bring a civil action in the courts of the commonwealth to enjoin any such unauthorized solicitation.
SOAR has come to you for legal advice. It wants to know whether Massachusetts can require the organization to pay an annual fee and file the required registration statement based on the content of SOAR’s Web site. It also wants to know whether it can be sued in the courts of the Commonwealth of Massachusetts to enjoin its Web site from providing information about its fundraising activities if it continues to operate without a Massachusetts certificate of registration.
SOAR informs you that it has never sponsored a preservation project or training program in Massachusetts, although 25 Massachusetts residents have participated in its training programs and preservation projects in other locations. It also tells you that it believes it has Massachusetts residents among the subscribers to the e-mail updates it sends about current and future projects as well as visitors to its site who reside in Massachusetts. It does not know the number of such persons since subscribers are not required to provide any information other than their e-mail address and visitors are not monitored other than by keeping track of the number of visitors. It further informs you that none of its donors are Massachusetts residents or charitable foundations headquartered in Massachusetts and that none of the people on its mailing list who have contacted it about contributing to SOAR have Massachusetts addresses. SOAR’s only other Massachusetts connection is that last year the current president of SOAR was a speaker at a conference held at Harvard University in Cambridge, Massachusetts on the subject of artistic preservation.
Please assess the legal position of SOAR. Write a memorandum of law assessing whether SOAR can be sued in Massachusetts and whether SOAR, consistent with the United States Constitution, can be required to pay the annual registration fee and file the annual registration statement based on the content of its Web site. Please include in your memorandum the arguments that are likely to be made by the Commonwealth of Massachusetts in response to your arguments.
Question III
(Suggested time: 60 minutes) (50 out of 150 total exam points)
Itsah Steel, Inc. is a major manufacturer of steel products sold throughout the world. Its product line includes both industrial steel products as well as steel products marketed directly to consumers. The corporate headquarters of Itsah Steel is in Ohio and it has manufacturing plants throughout the world. Since 1981, Itsah Steel has owned a federally registered trademark on the name “Itsah Steel.” In several trademark infringement lawsuits Itsah Steel has filed over the years, courts consistently have found Itsah Steel to be a famous mark. In 1995, Itsah Steel registered the domain name “www.itsahsteel.com.” It has operated a Web site using that domain name since 1997. The site contains information about the company and its products. Last year, it began to sell some of its consumer products online.
During the past month, several consumers have contacted Itsah Steel to complain that they have had trouble locating the Itsah Steel Web site. Instead, they erroneously located another site: www.itsasteal.com. Itsah Steel has discovered that the domain name “www.itsasteal.com” was registered on November 8, 2000 by Alan Brand in the wake of the presidential election. After registering the name, Mr. Brand began to use his site to report information about the presidential election in Florida which he believes resulted in George Bush stealing the election from Al Gore. His site contains information about voting irregularities and vote counts in all Florida counties. He intends to update that information once the ballots are examined by the Miami Herald and others under Florida’s open records law. Mr. Brand’s site has several other features including an online store selling election 2000 memorabilia and a forum for discussion by other disgruntled citizens. Mr. Brand intends to continue his site and report on other close election contests throughout the country and other voting problems that arise in subsequent elections. A popular feature of his site contains information about various voting machines and malfunctions that arise in the use of those machines.
You represent Itsah Steal. The company would like to stop Alan Brand from using the “itsasteal” domain name because it is so similar to its “itsahsteel” domain name. It would like you to consider whether it would be successful in suing for trademark infringement under two theories: (1) trademark infringement under the Federal Trademark Dilution Act of 1995; and (2) trademark infringement under the Anticybersquatting Consumer Protection Act of 1999. Please write a memorandum of law detailing the arguments that Itsah Steel would make to establish liability under these two trademark infringement statutes as well as the arguments that Alan Brand would make refuting these two claims and defending his continued use of the “itsasteal” domain name.
END OF EXAMINATION