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Internet and Online Law

Kent D. Stuckey, Contributing Experts

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“A valuable practitioner's guide to the...law of the Internet. It portrays the law as it is, a still evolving system in all it's complexity and contradiction.”
Esther Dyson, President and EDventure Holding's Former Chair; ICANN Board and
Former Chair; and Board Member Emeritus, Electronic Frontier Foundation

Internet and Online Law, by an all-star team of legal experts, is the most comprehensive book in the field. This authoritative work describes the nature and growth of the law of the Internet and explains the legal obligations, opportunities, rights, and risks inherent in this complex medium.

Internet and Online Law includes coverage of: negotiating enforceable contracts and licenses; identifying legal and business issues in electronic commerce; limiting liability for online defamation and factual misstatements; avoiding criminal obscenity or indecency charges; complying with government regulations affecting Internet and online services; and special aspects of procedure, jurisdiction and other litigation issues. The book also discusses: the fundamental principles of the Copyright Act and the Patent Act relevant to online technology; regulatory and congressional reports on Internet telephony, universal service and access charges; privacy and encryption issues; and the impact of the Internet and other electronic means of communication on the obligations of issuers and other parties under securities laws. Contract issues explored include: application of common law; the U.C.C.; the Statute of Frauds; parol evidence; and electronic and “shrinkwrap” agreements. Also covered are electronic signatures and authentication, trademark protection and domain names, legal consequences of owning a Web page or hosting a message board, and the value of warnings and disclaimers.

Book #00637; looseleaf, one volume, 946 pages; published in 1996, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-074-6.

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 946
  • ISBN: 978-1-58852-074-6
  • Pub#/SKU#: 637
  • Volume(s): 1

Author Image
  • Kent D. Stuckey

Kent D. Stuckey is CEO and Board Chairman and Founder of 2Venture LLC and also acts as a consultant on electronic commerce and Internet legal matters. He served as General Counsel and Secretary of CompuServe Ventures, Inc. This overlapped his assumption of marketing management responsibility for much of the CompuServe Information Service. He then served as Director of Business Development and Vice President of CompuServe Ventures Incorporated, responsible for development and execution of alliance, joint venture, merger and acquisition strategies. Mr. Stuckey managed landmark cases applicable to online and Internet service, including Cubby v. CompuServe, Frank Music v. CompuServe, and CompuServe v. Patterson, and has played key roles in the development of online industry standards, self-regulation, practices and policy positions, including copyright, defamation, privacy, obscenity and indecency, and regulatory matters. Mr. Stuckey also supervised the legal and administrative aspects of CompuServes international expansion into Europe, South America and the Pacific Rim countries. He defined in detail the scope and structure of this book and its chapters, organized the all-star team of expert contributing authors, drafted various sections, and brought the book together in its final form.



Author Image

CHAPTER 1
Contracting in the Electronic Environment

§ 1.01 Introduction
[1] Sources of Law
[2] Contract Formation
[3] The Statute of Frauds
§ 1.02 Nontraditional Means of Contracting
[1] Agreements Formed in Earlier Times Via Telegram, Telex and Tape Recordings
[2] The Modern Approach to Signatures
[3] E-mail and Electronic Messaging
[4] Shrink-Wrap/Point-and-Click Agreements
[5] Contractual Issues of Particular Concern in an Online Context

CHAPTER 2
Defamation

§ 2.01 Introduction
[1] Scope
[2] Common Law Defamation and the First Amendment
[3] Chapter Overview
§ 2.02 Defamation Law in the United States
[1] Common Law Elements of a Defamation Claim
[2] Common Law Defenses to a Defamation Claim
[3] First Amendment Modifications of State Defamation Law
§ 2.03 Applying Defamation Law to Online Service Providers
[1] Overview
[2] CDA Immunity for Online Service Providers: Limits of Immunity
[3] CDA Immunity for Ordinary Users
[4] Application of First Amendment Doctrines to Online Speech
[5] Retraction Statutes
[6] Single Publication Rule
[7] Liability of Traditional Publishers for Misuse of Online Information
§ 2.04 First Amendment Protection for American Online Service Providers Subjected to Defamation Law of Foreign Countries
[1] Enforceability of Foreign Libel Judgments in the United States
[2] Application of Foreign Libel Law in Domestic Litigation

CHAPTER 3
Factual Misstatements, Deception, and Abusive Practices

§ 3.01 Introduction
§ 3.01A Federal Law
[1] The Computer Fraud and Abuse Act
[2]  The CAN SPAM Act
§ 3.02 State Law Theories
[1] Negligent Misrepresentation
[2] Other Tort Theories
§ 3.03 Applying State Tort Law Theories to Internet Service Providers and Other Internet Information Providers
[1] Introduction
[2] Negligent Misrepresentation: ISPs and Comparable Media
[3] Products Liability
§ 3.04 First Amendment Considerations
[1] Introduction
[2] Negligence Liability for Non-Defamatory Speech Addressing Matters of Public Concern
[3] First Amendment Concerns as a Significant Factor in Negligent Misrepresentation Cases
§ 3.05 Conclusion

CHAPTER 4
Obscenity and Indecency

§ 4.01 Introduction
§ 4.02 The Law of Obscenity
[1] The Test for Obscenity
[2] Scienter Requirement
[3] The Role of Consent
[4] Private Possession of Obscene Material
§ 4.03 Online Activity and Potentially Applicable Obscenity Laws
[1] Online Sales of Obscene Material Under Federal Law
[2] Additional Penalties for Violating Federal Obscenity Laws
[3] State Obscenity Laws and Penalties
[4] International Transmission of Obscene Material
§ 4.04 The Law of Indecency
[1] The Communications Decency Act of 1996
[2] The Child Online Protection Act and Other Federal Legislation
[3] State Statutes
§ 4.05 Child Pornography
[1] State Statutes
[2] Federal Statutes
§ 4.06 Types of Online Activities That Could Trigger Liability for Violations of Obscenity, Indecency, or Child Pornography Laws
[1] Uploading and Downloading of Material to and from an Online Provider’s System or a BBS
[2] Providing Access to Third Party Materials or Servers Through an Online Provider’s Network
[3] Transmission of E-Mail
[4] Selling Products Online
[5] Facilitating Criminal Activity
§ 4.07 Approaches to Complying with Obscenity, Indecency, and Child Pornography Laws
[1] Doing Nothing
[2] Providing Warnings to Users
[3] Providing Filtering Software to Users
[4] Cautioning or Contractually Binding Uploading Subscribers and Content Providers
[5] Requiring Sysops to Monitor and to Remove Obscene Material or Child Pornography or to Segregate Indecent Material
[6] Segregating Sexually Oriented Materials and Restricting Minors’ Access
[7] Special Considerations for Libraries and Schools
§ 4.08 Conclusion

CHAPTER 5
Privacy, Data Protection and Related Issues

§ 5.01 Introduction
§ 5.02 The Constitutional, Legislative and Regulatory Framework
[1] Fourth Amendment
[2] Fifth Amendment
[3] Mail Privacy Statute
[4] Wiretap Statutes
[5] Electronic Communications Privacy Act and Stored Communications
[6] The Communications Assistance for Law Enforcement Act
[7] Computer Fraud and Abuse Act
[8] Cable Communications Policy Act
[9] Video Privacy Protection Act
[10] Privacy Act
[10A] Federal Trade Commission Act
[11] Family Education Rights and Privacy Act
[12] Children’s Online Privacy Protection Act
[13] Telephone Records and Privacy Protection Act
[14] USA Patriot Act
[15] Health Insurance Portability and Accountability Act
[16] Graham-Leach-Bliley Act
[17] Common Law Invasion of Privacy Torts
[18] Fair Credit Reporting Act
[19] Fair and Accurate Credit Transactions Act
[20] State Laws and Requirements Imposed on States by the Federal Government
§ 5.03 Privacy of Electronic Communications, Fair Information Practices, and Encryption Issues
[1] Privacy of Electronic Communications
[2] Fair Information Practices
[3] Encryption and Related Law Enforcement Issues
[4] Anonymity
[5] Consumer Financial Information
[6] Identity Theft
[7] The Tension Between Public and “Hyper-Public” Information

CHAPTER 6
Copyright

§ 6.01 Introduction
§ 6.02 Copyrightable Material
[1] Originality and Fixation
[2] Statutory Categories of Works of Authorship
[3] The Idea/Expression Dichotomy and Doctrine of Merger
§ 6.03 The Exclusive Rights of the Copyright Owner
[1] The Right of Reproduction
[2] The Right of Preparation of Derivative Works
[3] The Right of Public Distribution
[4] The Right of Public Performance
[5] The Right of Public Display
[6] The Right of Public Digital Performance in Sound Recordings
[7] Common Law Copyright and Preemption
[8] The Digital Millennium Copyright Act
§ 6.04 Duration, Formalities and Works in the Public Domain
[1] Duration of Copyright Protection
[2] Copyright Formalities
[3] Works in the Public Domain
§ 6.05 Copyright Protection of Specialized Works
[1] Compilations, Collective Works and Derivative Works
[2] Computer Software
§ 6.06 Limitations on the Exclusive Rights of the Copyright Holder
[1] Fair Use
[2] First Sale Doctrine
§ 6.07 Copyright Infringement
[1] Direct, Contributory, Vicarious and Intentional Liability
[2] Remedies for Infringement
[3] Statute of Limitations and Discovering Online Infringement
§ 6.08 Exclusive Rights in the Online Context
[1] The Right of Reproduction
[2] The Right of Preparation of Derivative Works
[3] The Right of Public Distribution
[4] The Right of Public Performance
[5] The Right of Public Display
§ 6.09 Copyright Implications of Online Activities
[1] User Uploads
[2] Granting Public Access to a Work
[3] Browsing
[4] Downloading
[5] E-Mail and List Servers
[6] Caching, Mirroring and Ephemeral Copies
[7] Hyperlinking
[8] Framing
[9] Pop-Up Advertising
§ 6.10 Copyright Liability of Online Service Providers
[1] Direct Infringement
[2] Contributory Infringement
[3] Vicarious Liability
[4] Intentional Inducement Liability
[5] The Appropriate Standard of Liability for Online Service Providers
§ 6.11 Fair Use as a Defense in the Online Context
§ 6.12 Distance Education-TEACH Act
§ 6.13 Copyright Preemption in the Online and New Media Context

CHAPTER 7
Trademark and Unfair Competition Issues

§ 7.01 Introduction: Unfair Competition and Online Services
§ 7.02 Trademark Infringement
[1] Federal Trademark Infringement and False Advertising
[2] State Trademark Infringement Laws
§ 7.03 Trademark Dilution
[1] Pleading a Cause of Action
[2] Defenses
[3] Remedies
§ 7.04 False Advertising
[1] Federal Cause of Action under Section 43(a) of the Lanham Act
[2] False Advertising and the Federal Trade Commission
[3] State False Advertising Law-UDAP
§ 7.05 Right of Publicity
[1] Pleading a Cause of Action
[2] Defenses
[3] Remedies
§ 7.06 Misappropriation and Other Common Law Unfair Competition Claims
[1] Passing Off
[2] Misappropriation
§ 7.07 Unique Issues Involving Trademarks and the Internet
[1] Domain Names
[2] Metatags
[3] Pop-Up Advertising and Keyword Buys
[4] Linking and Framing
[5] Gripe Sites and Fan Sites
[6] Unsolicited Commercial E-Mail

CHAPTER 8
Social Networking

§ 8.01 Introduction
§ 8.02 Privacy Considerations
§ 8.03 Social Networking and the First Amendment
§ 8.04 Social Networking in the Workplace
[1] Employee Use of Social Networking
[2] Employer Use of Social Networking
§ 8.05 Commercial Use of Social Networking
§ 8.06  Governmental Use of Social Networking
[1] Government as a Social Networking Provider
[2] Law Enforcement
§ 8.07 Sexting and the Culture Clash Between Technology and Law

CHAPTER 9
Regulatory Issues

§ 9.01 Introduction
§ 9.02 The Threat of the Application of Public Utility-Type Regulation to Online Services
[1] The Nature of Common Carrier Regulation
[2] Computer I Proceeding
[3] Computer II Proceeding
§ 9.03 Preemption of State Regulation of the Rates of Enhanced Service Providers
§ 9.04 The Need for Competitive Safeguards to Protect Against Anticompetitive Abuses When Telephone Companies Provide Enhanced Services
[1] Why Safeguards Are Necessary
[2] Computer II Proceeding Structural Safeguards
[3] BOC Separation Order
[4] Computer III Proceeding
[5] California I Decision
[6] Computer III Remand Order
[7] California II and III Decisions
[8] The Telecommunications Act of 1996
[9] Computer III Further Remand Proceeding
§ 9.05 Regulation to Protect Customer Proprietary Network Information
§ 9.06 Application of Access Charges to Online Service Providers
[1] The Access Charge Proceeding
[2] Exemption of ESPs from Carrier Access Charges
[3] Access Charges in the ONA Context
[4] Universal Service Under the Telecommunications Act of 1996
[5] Access Charges/Universal Service Implementation Proceedings
[6] FCC Report to Congress on Universal Service
[7] Inter-Carrier Compensation for ISP-Bound Traffic
§ 9.07 Potential Regulatory Issues Raised by Online and Internet Phone Services
[1] Internet Phone Applications
[2] Regulatory Implications of Voice Applications
[3] Internet Telephony
[4] ISP Access to Cable Television Systems
§ 9.08 The Impact of the Modified Final Judgment on the Online Services Industry
[1] The MFJ Line-of-Business Restrictions
[2] The First Triennial Review
[3] Removal of the Information Services Restriction
[4] The Telecommunications Act of 1996
[5] Implementation of Local Competition Provisions
§ 9.09 Potential Regulation of Online Services in New Areas Because of Perceived Concerns
§ 9.10 Regulation of E-Commerce
[1] Federal Regulation
[2] Economic Protectionism and State Regulation
[3] State Regulation of Alcohol Sales
[4] Internet Sales of Cigarettes
[5] State Regulation of Payday Lending
[6] Internet Sales of Prescription Contact Lenses
[7] Internet Sales of Prescription Drugs
[8] Internet Sales of Automobiles
[9] Online Appliance Sales
[10] Internet Gambling
[11] “Net Neutrality”
§ 9.11 Americans with Disabilities Act

CHAPTER 10
Procedural Issues

§ 10.01 Introduction
§ 10.02 Jurisdictional Issues in General
[1] Personal Jurisdiction Analysis
[2] Personal Jurisdiction Problems in the Online Environment
[3] Anonymous Defendants
§ 10.02A Venue
§ 10.03 Evidentiary Issues
[1] Hearsay (Federal Rules of Evidence 801 et seq.)
[2] Authentication (Federal Rules of Evidence 901 et seq.)
[3] Original Documents (Federal Rules of Evidence 1001 et seq.)
§ 10.04 Discovery Issues
§ 10.05 Alternative Dispute Resolution
[1] Arbitration
[2] Other ADR Methods

CHAPTER 11
International Aspects of Internet Law

§ 11.01 Introduction
§ 11.02 International Treaties and Legal Conventions Applicable to Online Activity
[1] World Intellectual Property Organization Treaties
[2] The World Trade Organization Agreements
[3] U.N. Convention on Contracts for the International Sale of Goods
[4] New York Convention
§ 11.03 Major Foreign Legal Provisions Affecting International Online Commerce
[1] Foreign Privacy and Data Protection Laws
[2] Foreign Data Retention Laws
[3] Foreign Censorship and Content-Suppression Laws
[4] Foreign Consumer Protection Laws
[5] Foreign Criminal Laws

Index