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Author: Eric Goldman

4

Best and Worst Internet Laws

[Preface: I've already overstayed my guest visit, but before I go, I want to say thanks to the Concurring Opinions team for the opportunity to blog here, and thanks to all of you for the great comments and stimulating dialogue. A complete index of my guest blog posts. Meanwhile, I'll keep blogging on technology and marketing law at my main blog and on all other topics at my personal blog. Hope to see you there!]

Over the past dozen years, the lure of regulating the Internet has proven irresistible to legislators. For example, in the 109th Congress, almost 1,100 introduced bills referenced the word “Internet.” This legislative activity doesn’t always come to fruition. Still, in total, hundreds of Internet laws have been passed by Congress and the states. This body of work is now large enough that we can identify some winners and losers. So in the spirit of good fun, I offer an opinionated list of my personal votes for the best and worst Internet statutes in the United States.

[Keep reading for the list]

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2

Suggestions for Conference Organizers

Symposia/conferences are an integral part of my academic life, so I spend a lot of time attending them (and traveling to/from them). For example, during one particularly frenetic 18 month period, I took 34 business trips, and the bigwigs in our field travel way more than me.

I find conferences very helpful to my academic work. They can be a terrific way to learn about new ideas and meet new people. When I present, I get valuable feedback and an opportunity to evangelize my work and ideas. In theory, over time, repeated presentations could help build a fan base of people interested in an academic’s work and eagerly awaiting his or her next brilliant contribution.

These benefits don’t come free. Each conference requires significant time preparing a presentation and traveling to/from the conference (plus the actual time at the conference). All of this time has an opportunity cost; I could spend it on other professorial duties (such as writing articles) or wringing some valuable personal time out of my schedule. In my case, when I travel overnight, I leave my wife alone with our two young kids—a decision that puts significant burdens on my wife and, as a result, usually triggers some costly counter-demands from her (i.e., “want to go to that conference at Podunk U? Fine, that will cost you a kitchen remodel”).

[Keep reading for some recommendations/suggestions]

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9

Real Estate Appraisals and Copyrighting Facts

As reported by the Washington Post, an interesting intellectual property dispute is brewing in the real estate appraisal business. On one side are traditional real estate appraisers, who charge several hundred dollars for an appraisal that typically involves an onsite inspection. On the other side are online appraisal services that, relying on their databases and some algorithms, offer lenders an instantaneous appraisal at a small fraction of the cost.

The traditional appraisers are upset because the online services may be extracting information from their appraisals and using that information to improve their databases (and thus the accuracy of their online appraisals). Taken to its logical extreme, as online appraisers get better databases by capturing data from the traditional appraisers’ inspections, traditional appraisers will destroy their own industry.

Not surprisingly, the traditional appraisers are looking for ways to preserve their market niche, and intellectual property doctrines can be great tools to hinder marketplace competition. So the WaPo article mentions that the traditional appraisers are considering their copyrights in their appraisals. After all, traditional appraisers put in their sweat of the brow, so shouldn’t they be rewarded? (The article provides some good quotes reflecting this paradigm).

We know how this argument goes. Copyright doesn’t protect the labor invested to generate facts. Appraisers probably can copyright the report in its entirety, and they may even be able to copyright their specific price estimate (see, e.g., CDN v. Kapes), but there should be no way for appraisers or anyone else to obtain copyright protection for a home’s basic specifications (e.g., square footage, age, number of rooms). As a result, copyright law does not provide appraisers with any effective way to restrict online databases from extracting facts from their reports. Thus, if traditional appraisers are looking for a tool to restrict competition from online factual databases, copyright law may not be very helpful.

Even if copyright law isn’t availing, traditional appraisers have other tools at their disposal, including:

* providing services that online database providers can’t, such as the increased accuracy associated with the onsite inspections.

* restricting access to the appraisals. Right now, it appears that the biggest online database service gets some data by providing an online tool for appraisers to submit their reports to lenders—thus, allowing them to extract facts from appraisals that cross the network. Traditional appraisers could try to discourage lenders from using this delivery service, thereby making it harder or impossible for the online service to see the appraisals. Alternatively, if they keep using this delivery service, traditional appraisers could negotiate a contract that limits the service’s ability to extract facts. (The contract is probably some standardized click-through agreement, but it’s negotiable in theory).

* if traditional appraisers really think they are losing money, they could just increase their fees to lenders to cover the lost value (good luck!).

But despite these options, the long-term prognosis may not be very good. A good appraisal always will need an onsite inspection, but just about every other aspect of the appraisal business can be replicated or eliminated through online mechanisms. Thus, it could be that the Internet is disintermediating the appraisal industry, and no amount of rear-guard intellectual property saber-rattling will change that fact.

5

MySpace Sued for Facilitating Offline Sexual Assaults

AP reports that four families have sued MySpace because their daughters were sexually assaulted (offline) by other MySpace members. This isn’t the first time MySpace has been sued on this front; last year, MySpace was sued in Texas state court for the same issue in Doe v. MySpace.

These lawsuits are obvious losers for two independent reasons. First, there’s a major causation problem. Can MySpace be deemed, as a legal matter, a contributing factor to an intentional tort committed outside its “four walls”? This strikes me as a major stretch of causation doctrines.

Even if you don’t buy that, then I’m 100% confident these attempts to hold MySpace liable for other people’s behavior will fail due to 47 USC 230. 47 USC 230 has routinely insulated websites for liability for torts committed outside their network. This was the central issue in the Fourth Circuit’s seminal Zeran v. AOL case, 129 F.3d 327 (4th Cir. Nov. 12, 1997), where the court insulated AOL for the offline harassment sparked by online postings. For other examples of websites avoiding liability for offline conduct, see, e.g., Doe v. America Online, 783 So. 2d 1010 (Fla. 2001) (AOL not liable to harmed child for child porn generated off AOL and distributed through it); Doe v. Bates, 2006 WL 3813758 (E.D. Tex. Dec. 27, 2006) (same basic case as Doe v. AOL); Prickett v. infoUSA, Inc., 2006 WL 887431 (E.D. Tex. Mar. 30, 2006) (information republisher not liable for offline harassing behavior made using published data); Barnes v. Yahoo, Inc., 2005 WL 3005602 (D. Or. Nov. 7, 2005) (Yahoo not liable for offline harassments made in response to bogus profile submitted by angry ex-boyfriend).

Given the obviously futile nature of this lawsuit, this lawsuit may be more about publicity than about seeking justice. Despite this, these lawsuits may nevertheless exacerbate two trends, both of which are not necessarily positive.

First, legislators cannot resist the meme of protecting kids online, and this lawsuit will give legislators another incentive to think that they should regulate social networking sites to protect kids. See, for example, Sen. McCain’s proposed “Stop the Online Exploitation of Our Children Act.” (How could anyone ever oppose a law with a title like that???) However, such regulations run into difficult definitional issues (what is a “social networking site”?) and, if poorly drafted (as Congress tends to do with Internet regulation), could jeopardize lots of legitimate activities and conversations.

Second, this lawsuit will also encourage Congress to target sexual offenders for further restrictions of their online behavior, like McCain’s Stop the Online Exploitation of Our Children Act and like the proposed federal sex offender email registry as a way to blacklist them online (see a similar effort in Virginia). Sexual offenders have become the new pariah in our society–they are a tiny percent of the population and, based on the nature of their offenses, shunned by majority interests (indeed, it is politically incorrect to do anything but shun them). As a result, there is no meaningful counterbalance to any majority-led political efforts to strip them of rights. To the extent that depriving them of rights online could improve the safety of children, I’m all for it. However, I have yet to see any social science explaining what online restrictions of sexual offender behavior actually supports this goal. Without any scientific support, regulatory efforts are typically more about grandstanding by attacking unpopular minorities than about improving our safety.

I want to be clear–I worry a lot about how I can protect my children online, and I haven’t figured out how to best do that. This kind of stuff keeps me up at nights because of my heavy responsibilities as a parent. At the same time, I remain concerned that legal intervention to supplement my efforts will not help me execute my duties as a parent, but they will nevertheless come at a significant cost by curtailing otherwise robust and socially enriching communication environments.

4

Curriculum Proliferation

As part of my administrative duties, I spend some time thinking about curriculum design. On that front, a striking elements of most law schools’ course offerings is the rapid and extensive accretion of new courses, a phenomenon I call “curriculum proliferation.”

Curriculum proliferation has positive aspects:

* new courses can freshen a curriculum and update it to reflect modern legal developments

* new courses can focus on more specialized topics, better serving students’ unique interests

* more courses generally should result in smaller enrollments in each course across the curriculum

* new courses can allow professors to match course content to their current research interests

However, curriculum proliferation isn’t all good news:

* new courses may substantively overlap with existing courses. This can confuse students selecting between courses, and if the redundancy isn’t pedagogically valuable, students in overlapping courses may feel like they are wasting their time. Even if the curricular additions don’t overlap, a larger curriculum still can be confusing for students to navigate

* if more instructors are needed to serve the same number of students, this creates new incremental costs

* it is administratively taxing to manage a larger curriculum (if you’ve never dealt with this, then trust me)

* most importantly, an expanded curriculum induces some students to skip existing courses and take the new offerings instead. In aggregate, curriculum proliferation may have the practical consequence of diverting students from existing “core” courses to more esoteric offerings. This reduces the amount of shared experiences or common skills of a school’s graduates. It could also affect bar passage rate to the extent student skip “bar courses” to take specialty electives. (I’m assuming, as many professors do–but without any empirical support–that taking bar courses improves performance on the bar exam. I wonder if this has ever been studied?).

From my perspective, these problems are serious enough that it is worth trying to minimize curriculum proliferation. But, this isn’t easy. Curriculum proliferation is driven by a variety of forces, including:

* expanding curricular requirements from accrediting bodies

* course schedulers’ reliance on market mechanisms for course selection (i.e., the willingness to throw a course out to the students to see if it gets any traction enrollment-wise)

* the difficulty saying no to existing faculty members who request a specialty course or to noteworthy lawyers who express an interest in becoming an adjunct professor to teach a course uniquely suited to their talents

These forces are challenging, so let me propose (for discussion purposes) a slightly radical solution to combat unwanted curriculum proliferation. In my opinion, the real culprit is the lack of explicit scarcity in the curricular decision-making process, which could be corrected simply by introducing scarcity. For example, a law school could fix the total number of courses it offers. Thus, to add a new course, curricular decision-makers would need to drop an existing course. This constraint would force a careful deliberation before new courses are added, and it could have the added bonus of churning out underperforming courses from the curriculum. In theory, then, self-imposed scarcity should progressively improve the overall curriculum.

Of course, at many schools, this system would be a disaster in practice. Some professors who teach courses targeted for deletion would advocate to keep their courses, creating uncomfortable political dynamics that most faculties would choose to avoid. So maybe there’s a better way to introduce scarcity into the curriculum process.

Do you think curriculum proliferation is a problem? If so, how do you think it can be addressed?

2

Favorite Holiday-Themed Cases

I can’t imagine doing anything as radical as wearing a chicken suit when teaching the chicken case in Contracts, but I do like to find ways to reinforce classroom pedagogical lessons in entertaining ways. In particular, when timed right, it’s especially fun to teach holiday-themed material on or around the holiday.

For example, around Halloween, Contracts or Property professors can teach Stambovsky v. Ackley, 572 N.Y.S.2d 672 (NY App. Div. 1991), in which buyers sought rescission for failure to disclose that their new house was haunted. Among other remarkable aspects, the court said that the house was haunted as a matter of law. Or, Civil Procedure professors might teach US ex rel Mayo v. Satan, 54 F.R.D. 282 (W.D. Pa. 1971), which matter-of-factly discusses whether it is possible to establish personal jurisdiction over Satan.

I’m not particularly creative about holiday/teaching material pairings, so I’ll turn the question over to you. What’s your favorite holiday-themed case or other teaching material? Any good St. Patrick’s Day materials? Valentine’s Day? Earth Day? Festivus?

1

A Guest Blogger’s “Meta” Post About Guest Blogging

Thanks to Dan and the rest of the Concurring Opinions team for hosting me this month. Incredible as it may seem (given the number of law geeks involved and our sophistication about the applicable law), we enter into this guest-blogging arrangement without any contract of any sort. Thus, any legal consequences of my guest-blogging are governed by default rules…whatever those are.

Fortunately, with respect to liability to third parties, the default rules are generally favorable. 47 USC 230 absolutely immunizes my blog hosts from most types of liability for what I say or do. If I defame someone, I’ll be on the hook, but my peers won’t be. After the California Supreme Court’s opinion in Barrett v. Rosenthal, I think it’s also 100% clear that I’m generally not liable for the posts of my peers. (Pursuant to the reasoning of that case, I could claim to be a “user” of the Concurring Opinions interactive computer service). Even though Dan doesn’t like 47 USC 230 as much as I do, we all benefit from it in this case.

But 47 USC 230 doesn’t cover all types of third party liability—most critically, it leaves open the risk of copyright liability. For example, if I post an infringing photo to the site, not only would I be liable, but my blog hosts could face contributory or vicarious liability. A statutory safe harbor, 17 USC 512, putatively provides some relief, but (1) that safe harbor isn’t nearly as robust as 47 USC 230, and (2) more importantly, 512 has a number of prerequisite formalities, including the requirement that the website register with the Copyright Office, which Concurring Opinions has not done. (You can confirm that here).

As a result, default copyright doctrines apply to any infringing posts I make. Of most concern is vicarious copyright infringement, which would hold the Concurring Opinions folks liable for my infringing posts if they had the right and ability to supervise my infringing activities and a direct financial interest in those activities. (Because it’s a vicarious doctrine, scienter is irrelevant). Even though Concurring Opinions doesn’t generate any revenues (as far as I know!), the Napster court found that Napster had a direct financial interest in infringing P2P file sharing even though Napster didn’t generate a dime of revenues. Instead, the court said that the infringing materials acted as a “draw” to induce people to use Napster. So the principal issue in any vicarious copyright infringement claim would be whether my blog hosts had the right and ability to supervise my infringing activities. Many defendants do not find this a comforting standard…

(Note this analysis could work in reverse as well, where I could be liable for any infringements committed by my peers. As a guest-blogger, I feel a little better that I lack the requisite right and ability to supervise the infringing activities of my peers…but this may be a self-serving statement!)

If you’re interested in a more extensive analysis of liability for guest-blogging, see here.

While the liability situation could be disconcerting, I think the dynamics of being a guest blogger may alleviate some concerns. I am finding guest-blogging a little inhibiting because I don’t want to violate the norms of my blog hosts, which makes me even more cautious than normal. In this respect, guest-blogging feels a little like visiting a friend’s home. The friend may say “mi casa su casa,” but I’ll still carefully wipe the dirt off my shoes and try not to use the guest towels in the vanity bathroom. Similarly, I’ll blog politely here and save my reckless blogging for my own blogs.