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 [...]]]> [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]

Best Internet Laws

With my libertarian leanings, it should not be surprising that my list of good Internet laws is both brief and skewed towards laws that minimized the scope of Internet regulation.

#2: Internet Tax Freedom Act

Many people mistakenly think this law eliminated sales tax for purchases over the Internet. It didn’t (if you don’t pay sales tax, you owe use taxes on those purchases). Instead, the law placed a temporary moratorium on states enacting Internet access taxes or e-commerce-specific taxes. By freezing new taxes, the law forestalled a tax frenzy during the dot com boom. The current moratorium expires in November, but Congress is proposing to extend the law permanently (see the Permanent Internet Tax Freedom Act of 2007, S.156 & H.R. 743). To which, I say: amen!

#1: 47 USC 230

The law was enacted in 1996 (as part of the Communications Decency Act, discussed below) during the heyday of the cyberspace exceptionalism movement–about the same time as Barlow’s Declaration of Independence and Johnson/Post’s Internet self-governance article. Indeed, this law is one of the most conspicuous examples of setting different rules for physical space and cyberspace. In this case, the law provides websites and other intermediaries a near-absolute immunization from liability for their users’ content—even if offline publishers would be liable for publishing the exact same user content in dead trees.

It’s hard to overstate the importance of this law to the Internet’s evolution. Without this law, all Internet content probably would be subject to a notice-and-takedown regime like we have for copyright law (see discussion about the DMCA Online Safe Harbors below). If websites had to remove user content upon notice to avoid liability, they would act conservatively, quickly pulling down complained-about content without much fuss. So, any company unhappy with negative consumer comments could simply contact the web host, claim that the comments were defamatory (making the web host potentially liable for the content), and expect the web host to scramble to take down the user’s comment.

But in this takedown melee, only negative remarks would be targeted (there would be no legal grounds—or reason—to target positive comments). Thus, notice-and-takedown rules would result in “lopsided” databases where only positive opinions/commentary would remain, but many negative comments could be quickly excised. This would ruin the ability of the consumer opinion sites (e.g., eBay’s feedback forum, Amazon product reviews) to hold people and companies accountable for their choices. Indeed, by undermining the credibility of Internet content generally, a notice-and-takedown scheme could diminish the Internet’s vitality as a mainstream information resource.

47 USC 230 eliminates the notice-and-takedown option for people and companies trying to escape accountability. As a result, 47 USC 230 is a big part of the reason why the Internet has been such a massive success.

Effective but Questionable Internet Laws

Two additional laws are noteworthy for substantially accomplishing their intended goals, even though I can’t classify them as “good” because of their deficient policy rationales.

#2: No Electronic Theft Act (NET Act)

In 1997, Congress changed the basic paradigm for criminal copyright infringement. Previously, the law required that defendants had to infringe for the money. After the NET Act, infringers may be criminal even if their infringement was non-commercial.

The NET Act specifically targeted warez traders, a group of hobbyist infringers who aggregate and disseminate copyrighted works as trophies—by finding and publicly presenting a hard-to-get copyrighted work, the warez trader demonstrates his/her prowess as a trader and earns recognition from the community. Warez traders generally subscribe to the “information wants to be free” philosophy, so they never exchange copyrighted works for the money, but their trading can have adverse consequences for copyright owners.

There are many reasons why the NET Act is lousy policy, most importantly because it will not change warez traders’ behavior. Yet, it has given the DOJ an effective tool to nail warez traders, and a couple hundred warez traders have been busted using the law.

#1: Anti-Cybersquatting Consumer Protection Act

The 1990s saw a frenzy of domain name registrations, often involving the registration of domain names containing well-known trademarks by someone other than the trademark owner (a process called “cybersquatting”). Courts struggled to apply trademark law to this behavior, so trademark owners appealed to Congress for help. Congress initially hoped that ICANN would promulgate its own anti-cybersquatting administrative regulations (which ultimately became the UDRP). But ICANN took too long, and an impatient Congress enacted the ACPA.

The ACPA targeted cybersquatting, and in that respect the law has worked well. The classic 1990s cybersquatting “land-grab” registrations of [trademarkowner].[tld] have effectively dried up, and the few cases where a true cybersquatter has gone to court to defend against an ACPA claim generally have resulted in resounding victories for the trademark owner.

A silver lining of the ACPA: it contains an immunization of domain name registrars and registries that completely eliminated them as the targets of trademark owners. Prior to ACPA, domain name registrars (especially Network Solutions, the monopoly .com registrar for most of that time) had been sued repeatedly. Now, plaintiffs don’t even think about it.

However, the ACPA isn’t all good news. From a defense perspective, the ACPA has emerged as a tool to attack gripers and other critics. From a trademark owner’s perspective, the ACPA hasn’t curbed domain name parking, domain tasting and other AdSense-fueled sites all using trademarks or typographical versions of them. So no one is really happy with the law. Nevertheless, as a point solution to the cybersquatting problem, I think ACPA is fairly characterized as a solid success.

Worst Internet Laws

I want a little credit for finding 4 laws that I could say something good about. It wasn’t easy. In contrast, the list of bad laws is much longer, so I’ve limited myself to 10.

What makes a law “bad”? Unfortunately, there are many routes to ignominy, and mere legislative cluelessness isn’t sufficient. Some common themes: poor/ambiguous drafting, unintended consequences, justification bait-and-switch (publicly declaring that the law was designed to do X, when it was never likely to do so), and attempts to legislatively manufacture markets or change consumer behavior.

The dishonor roll:

#10: E-Sign

E-Sign generally says that online contracts won’t be denied enforcement simply because they are in electronic form rather than on paper. Superficially, this sounds positive because it stops courts from underenforcing electronic contracts or engaging in funky cyberspace exceptionalism. The problem? This law was completely unnecessary, as many states had already enacted the Uniform Electronic Transactions Act (UETA) before Congress passed the substantially identical E-Sign. Worse, E-Sign has a partial preemption clause that makes it difficult/impossible to figure out what state laws survived it. So E-Sign is a prime example of how Congress cannot resist the lure of Internet regulation—even if it adds no value (or even subtracts value)in the process.

#9: DMCA Online Safe Harbors

Another law that looks good on the surface, the law purports to provide safe harbors to protect online intermediaries from copyright infringement caused by other people. However, this law has at least two major flaws. First, it sets up a notice-and-takedown procedure which has led to significant abuse.

Second, and perhaps more importantly, the law only governs late 1990s technologies. It doesn’t contemplate P2P file sharing and other decentralized forms of communications. This technological dependency makes the safe harbor increasingly irrelevant as technology evolves. As a stark example, consider that the online safe harbors didn’t get mentioned–not a single reference!–in the most important online secondary infringement case to date, the Grokster Supreme Court opinion.

#8: Unlawful Internet Gambling Enforcement Act of 2006 (see the end of this file)

As I have said elsewhere, this law is a “a flagship example of how special interest lobbying combined with legislative mumbling can produce an unreadable mess.” First, the law is written in unintelligible Congress-ese. Second, the law is pockmarked with special interest exceptions, clearly showing who has the best lobbyists. Third, and most importantly, Congress did not specify (in this law or elsewhere) what constitutes illegal Internet gambling, yet the law requires third party money sources to block the flow of money to illegal gambling operations. Thus, just like Kafka might write it, Congress deputizes private actors to block illegal activity without deciding for itself what constitutes illegal activity. The consequence is that banks and other money sources are going to curtail lots of legitimate activity to be on the safe side.

#7: DMCA Anti-Circumvention

There are lots of reasons not to like the DMCA anti-circumvention law. Most obviously, the law targets “bad” technology rather than bad behavior—a regulatory model that usually fails when technological innovation bypasses such restrictions, or worse, the restrictions inhibit the development of socially beneficial technology.

However, the anti-circumvention laws make this list principally because of their unintended consequences. The law was designed to bolster content protection technology: the purported justification was that content owners wouldn’t feel comfortable putting content online without content protection measures, and this law restricts the ability to bypass those measures.

As it turns out, the hottest area of anti-circumvention litigation has nothing to do with such content protection schemes but instead involves companies using the DMCA as an anti-competition law. Two flagship examples—Chamberlain, involving the sale of compatible after-market universal garage door openers (a case the EFF calls “mind-bogglingly absurd”) and Lexmark, involving refilled printer cartridges—ultimately reached pro-competitive outcomes, but only after significant litigation and some disconcerting early rulings. Even with these rulings, companies now routinely consider anti-circumvention claims as part of a general anti-competitor campaign. As a result, the law has increased the cost of doing business, given plaintiffs another tool to try to restrict legitimate competition, and done almost nothing to protect content owners.

#6: Electronic Communications Privacy Act

This law was written in 1986 (amending earlier versions), back when the Internet was an obscure academic network. Although the law wasn’t written with the Internet in mind, it has the heroic responsibility of governing a huge swath of private Internet communications, including emails, private chat, VOIP and others. Even if the law were well-drafted, applying a pre-Internet law to these communications would create plenty of ambiguity and friction. Unfortunately, this is not a well-drafted law; in my opinion, this law as one of the most poorly drafted statutes ever. The result is a tangled convoluted hairball that no one (even privacy experts) can understand or apply.

#5: Utah Digital Signatures Act

In 1995, there was some concern that the lack of Internet authentication would inhibit the development of e-commerce. As a result, VeriSign (and others) advocated that everyone on the Internet—both users and websites—should have digital certificates to validate their identity (the equivalent of an Internet driver’s license) so that websites and users each could figure out who they were dealing with. However, VeriSign and others expressed concern that a digital certificate issuer would face significant liability if the authenticated information was wrong. Thus, the argument went, if only digital certificate vendors could get some liability protection, digital certificate vendors would provide the necessary authentication that would allow e-commerce to explode.

In response to these concerns, Utah enacted the Digital Signatures Act to regulate the process of granting accurate certificates and limit the liability of digital certificate vendors. Utah hoped the law would make cause digital certificate vendors to relocate to Utah to take advantage of its friendly legal climate, making Utah a leader in e-commerce.

As it turns out, digital certificates weren’t needed to catalyze e-commerce, nor did the market materialize for digital certificates in the form contemplated by the statute (as a PKI-based system). As a result, this law was a complete failure, and no companies ever complied with the statute’s formalities. Indeed, the law proved to be so irrelevant that Utah has taken the highly unusual step of repealing the law. At least they owned up to their mistake (this time).

#4: Anti-Kid Spam Laws in Utah and Michigan

Nothing fires up the legislative machine like trying to protect kids from Internet dangers. In this case, Utah and Michigan created “do-not-email” registries, similar to the national Do-Not-Call registries, for the registration of kids’ email addresses. Porn spammers are supposed to check these databases and eliminate any registered kids’ addresses from their porn spam distributions.

While do-not-contact registries are generally popular, I’m in the minority of people of who think they are suboptimal policy (I explain my thinking, by deconstructing the federal Do-Not-Call registry, here). In these cases, the do-not-email registries claim to be protecting kids, but they actually don’t try to authenticate registrants’ ages—making them a generic do-not-email registry, something even the FTC doesn’t favor. Most importantly, assuming the database actually contains kids’ email addresses, it becomes a juicy targets for criminal hackers, pedophiles and other bad actors. Based on this concern, the FTC has advocated against the idea.

#3: Dot Kids Implementation and Efficiency Act of 2002

As we saw with the Utah Digital Signatures Act, legislators can’t stimulate market demand simply by legislating the market into existence. In my opinion, no legislative act better illustrates this principle than the Dot Kids Implementation and Efficiency Act of 2002. In the name of providing a safe online haven for kids, Congress co-opted the .kids.us domain and decreed that only kid-safe content could reside there. In theory, parents would feel safe letting their kids loose there, and content publishers would have a good place to reach kids. Ultimately, Internet filters could simply enable .kids.us websites and shut off the rest of the Internet to kids.

The problem? Not many content publishers saw the value of creating kid-safe websites and housing them under the restrictive rules of the law. As a result, .kids.us is a virtual wasteland, housing less than 20 websites, almost all of which have less-than-compelling content. (You mean to tell me you’ve never been there? Check it out yourself). Not exactly the most enticing destination for Junior. So .kids.us is a ghost-town-like reminder that legislators should stay out of the business of trying to manufacture markets.

#2: Utah/Alaska Anti-Adware Laws

Have you noticed a trend here? Utah makes my dud-law list three times—a hat trick of legislative incompetence. This is such a remarkable feat that we might consider banning Utah from enacting further Internet regulations until they can show that they will use their powers wisely.

This law makes my list because of the deceptive rationales used to justify it. Touted as “anti-spyware” “consumer protection” law, it was neither. The law only targeted adware, not spyware, and it gave enforcement rights to trademark owners, not consumers. As a result, the law gave trademark owners the power to take software out of consumers’ hands—even if the consumers actually wanted the technology. Further, by allowing trademark owners to attack competitors for engaging in comparative advertising, the law tried to inhibit beneficial competition rather than promoting it. Thus, despite its billing, this law was a profoundly regressive anti-consumer law.

Given its deceptive nature and adverse policy effects (which I explain in lengthy detail here), it should not be surprising that the law was quickly enjoined. (Disclosure note: I worked on an amicus brief challenging the law). Chastened, the act’s sponsor subsequently amended the law to make it effectively irrelevant.

However, before Utah amended its law, Alaska implemented its own bastardization of Utah’s initial law. Among the Alaska law’s defects, it expects adware vendors to pop-up a notice to potential downloaders asking them for their geography; with this information, in theory, the vendor can avoid downloading the regulated software to Alaska residents. In other words, in an effort to fight unwanted pop-ups, the Alaska law mandates that software vendors deliver lots of unwanted pop-ups to consumers–even when both the vendors and consumers are located outside of Alaska. Gotta love that logic.

#1: Communications Decency Act

Based on the discussion above, clearly there was plenty of competition for the worst Internet law of all time. However, I found picking a “winner” surprisingly easy. In fact, in my book, it isn’t particularly close.

The Communications Decency Act, passed in 1996, was Congress’ first comprehensive attempt to regulate Internet content. Not surprisingly, Congress made a lot of rookie mistakes. The CDA tried to keep kids away from Internet porn, a reaction to a sensational 1995 article (the “Rimm Report”) published in the Georgetown Law Journal that proclaimed that the Internet was awash in porn. But later examinations thoroughly discredited the Rimm Report—meaning that Congress’ efforts/overreactions were based on bad social science.

Worse, Congress mistakenly assumed that non-porn content could be easily segregated from porn. In defense of this assumption, the government’s expert witness proposed a content tagging system that would enable browsers to wall off porn. But this exposed a deep flaw in the law—the tagging system didn’t exist, browsers weren’t written to honor the tag, and it turns out that requiring publisher self-tagging for all Internet content is burdensome and cost-prohibitive.

Because web and email content publishers had no easy way to comply with the law, the law threatened to restrict virtually Internet speaker. Further, Congress imposed punitive and draconian sanctions (including stiff jail time) for breaking the law. Congress really, really wanted to wipe porn off the Internet, but it chose a particularly mean-spirited way of doing so.

Not surprisingly, the law fared poorly in the courts. Within a week, it was enjoined. The next year, the US Supreme Court unanimously struck down the law (although 2 judges would have found a way to preserve some of the law). For its lack of policy support, its sloppy blunderbuss approach to regulating speech, and its flat-out meanness, I hereby crown the CDA the worst Internet law (to date…).

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 [...]]]> 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]

To facilitate a cost-benefit analysis about the decision to participate in a conference, conference organizers should provide some basic information as part of every invitation, such as:

* the event’s date and location. This seems obvious, but in some cases the date is flexible (such as a standalone lecture/workshop) or not set in stone. Usually, the timing matters a great deal—not just because of express conflicts, but also because of workload balancing during the semester, other deadlines, a desire to include some vacation time on the trip, weather issues (including the risk of getting stranded), etc.

* any paper requirements and expected deadlines. A paper requirement is a significant request because of the time required to do it. I can prepare a satisfactory talk (by my standards) in a matter of hours, but it takes me weeks or even months to write a paper, even a “short” paper. Deferred deadlines help somewhat by creating more runway to get the work done, but it doesn’t lessen the workload.

* what expenses are reimbursable. Usually, law school conferences cover travel expenses for invited presenters, but there are notable exceptions, such as work-in-progress events. Therefore, organizers should clarify expense coverage in the invitation. While law professors usually have a travel budget to cover some conferences without asking for money from the dean, the budget usually gets burned up quickly, and asking the dean for money is never fun, even if the dean is willing to grant the request readily.

In the rare cases when an honorarium is being offered, this definitely should be highlighted in the invitation!

* details about the talk’s structure and audience. In some cases, the conference organizers will assign a precise topic; in other cases, the presentation will be part of a topical panel; in yet other cases, the topic is totally up to the presenter. Topic selection affects the amount of preparation work required; it’s easier to minimize preparation when speakers have complete discretion about topics (the topic can then recycle from a previous talk or coincide with a current research effort).

It is also helpful to know about the audience. Not only does this ensure that any topic will be relevant to the audience’s interests, but the nature of the audience can affect the amount of required preparation. Often, it’s easier to prepare practitioner presentations than academic ones (except when the talk is being recycled). In particular, if other academics are going to be critiquing my work, I will want to prepare a more bullet-proof talk, which increases the amount of preparation work substantially. Finally, I generally prefer larger audiences to smaller ones, although a sophisticated audience, even if small, for a work-in-progress event can be very compelling.

Some Tips to Conference Organizers

I’ve participated in many terrific conferences, but I’ve also experienced many duds. Some suggestions to conference organizers about ways to improve the event:

* Keep speakers to stated time limits. Otherwise, long talks cut into the time available to subsequent panelists and valuable Q&A/discussion time. Therefore, conference organizers should designate moderators/time-keepers for every panel, provide constant information about time remaining to speakers (big LED count-down clocks are very helpful), and ensure that moderators cut off speakers who run over their allotted time.

* Schedule adequate breaks throughout the day. First, we all have biological needs! Second, an audience’s attention can wander if a session goes on too long. Finally, and most importantly, the breaks provide extremely valuable social interaction time—this is a key opportunity for people to catch up with friends, debate points about a presentation, provide feedback to the speakers, etc. Don’t skimp on the break time!

* Some must-haves throughout the day: bottled water (hydration is so important!), caffeinated sodas, snacks (both sweet and healthy), and an Internet connection! And directions to the nearest bathroom.

* Name badges should display names in large letters so that I don’t have to stare at someone’s chest.

* Skip the speaker’s gifts. I know it’s the thought that counts, but most end up in the trash.

* Provide speakers with clear instructions on how to get from place to place (or, even better, provide a chaperone and transportation). Even though it’s possible to figure out direction from the Internet in advance, it usually takes some time, and no one knows geography as well as locals.

* Solicit speakers’ AV needs well in advance of the event, especially if a computer and projector aren’t going to be available automatically.

* If the conference isn’t providing lunch, provide very clear instructions and directions about where to go for lunch.

* Please reimburse expenses quickly. I hate having to harass for my reimbursement.

Ilya Vedrashko provides some additional recommendations about designing trade conferences.

Do you have any other suggestions for conference organizers, or want to take issue with mine?

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 [...]]]> 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.

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 [...]]]> 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.

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 [...]]]> 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?

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 [...]]]> 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?

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 [...]]]> 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.