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Deck 18: Internet Law and Ethics
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Deck 18: Internet Law and Ethics
1
Internet Access
As we have seen in other areas, market forces and legal regulation will blend in some uncertain, emerging formula to provide the security and confidence necessary for effective e-commerce. But ethics, too, will play a part. The speed, the traffic volume, the surface anonymity, and the global reach of the Internet suggest very difficult, and new, ethical issues, as well as old problems in a new venue. We turn now to two access issues.
The Digital Divide
The divide in the United States is not just along economic lines, but also along race, age, and geographic lines. Seventy-six percent of white households are connected, but only 57 percent of African-American households; 75 percent of those under 65 use the Internet, but only about 50 percent of those 65 and older; and the lowest Internet usage is in Mississippi, Alabama, and Arkansas. Although nearly 98 percent of American households are located where broadband is available, 20 percent of American adults are not connected-not at home, at work, through public access points such as libraries, or through a smart phone. Availability of service is not the problem; the cost of connecting and digital literacy are. But presumptions about availability exacerbate the disadvantages of the unconnected, as job an nouncements and applications, public school homework assignments, government services information and applications, among many other things, migrate to the web.
An even greater access imbalance exists at the global level. For example, only 15.6 percent of Africa's citizens have access, compared with 78.6 percent in North America. Worldwide, it is estimated that just over one-third of the population is connected. But the number of connections is growing by less than 9 percent annually. As in the United States, one issue of access is availability, another is user cost, and another is training. But each of these issues is more intransigent outside of the United States. For example, only 24 percent of the population in sub-Saharan Africa has access to electricity. In most of these countries, the gross domestic product per capita is under $2,000. A group of seven well-known high-tech companies announced in 2013 the start of an Internet access project to address the two-thirds of the world's population that is on the other side of the divide, but it is too early to tell if significant improvement will result. [For current statistics on world Internet usage, see www.internetworldstats.com/stats.htm ]
How would you deal with the reality that most Internet content is in English
As we have seen in other areas, market forces and legal regulation will blend in some uncertain, emerging formula to provide the security and confidence necessary for effective e-commerce. But ethics, too, will play a part. The speed, the traffic volume, the surface anonymity, and the global reach of the Internet suggest very difficult, and new, ethical issues, as well as old problems in a new venue. We turn now to two access issues.
The Digital Divide
The divide in the United States is not just along economic lines, but also along race, age, and geographic lines. Seventy-six percent of white households are connected, but only 57 percent of African-American households; 75 percent of those under 65 use the Internet, but only about 50 percent of those 65 and older; and the lowest Internet usage is in Mississippi, Alabama, and Arkansas. Although nearly 98 percent of American households are located where broadband is available, 20 percent of American adults are not connected-not at home, at work, through public access points such as libraries, or through a smart phone. Availability of service is not the problem; the cost of connecting and digital literacy are. But presumptions about availability exacerbate the disadvantages of the unconnected, as job an nouncements and applications, public school homework assignments, government services information and applications, among many other things, migrate to the web.
An even greater access imbalance exists at the global level. For example, only 15.6 percent of Africa's citizens have access, compared with 78.6 percent in North America. Worldwide, it is estimated that just over one-third of the population is connected. But the number of connections is growing by less than 9 percent annually. As in the United States, one issue of access is availability, another is user cost, and another is training. But each of these issues is more intransigent outside of the United States. For example, only 24 percent of the population in sub-Saharan Africa has access to electricity. In most of these countries, the gross domestic product per capita is under $2,000. A group of seven well-known high-tech companies announced in 2013 the start of an Internet access project to address the two-thirds of the world's population that is on the other side of the divide, but it is too early to tell if significant improvement will result. [For current statistics on world Internet usage, see www.internetworldstats.com/stats.htm ]
How would you deal with the reality that most Internet content is in English
Internet content is in English because English is one of the most widely used common languages. So, most of the country find it most appropriate to present the content on internet in this language. Additionally, there are few websites which provide content in multiple languages so that large population can access their content on internet in multiple languages. There are some companies as well which allow the user to translate the content in other languages by putting the translator tool on their website.
2
Plaintiff Marobie-FL, Inc., released software of copyrighted clip art for use in the fire service industry. Robisheaux administered the National Association of Fire Equipment Distributors (NAFED) Web page. He received the clip art from a source that he could not remember. He placed the clip art on NAFED's Web page. At that point, the clip art could be readily accessed and downloaded by any Web user.
Marobie claimed copyright infringement. Among other arguments, NAFED claimed that its display of the clip art constituted a fair use, within the meaning of federal copyright law. Decide. Explain. See Marobie-FL v. National Ass'n of Fire Equip. Dist., 983 F.Supp. 1167 (N.D. Ill. 1997).
Marobie claimed copyright infringement. Among other arguments, NAFED claimed that its display of the clip art constituted a fair use, within the meaning of federal copyright law. Decide. Explain. See Marobie-FL v. National Ass'n of Fire Equip. Dist., 983 F.Supp. 1167 (N.D. Ill. 1997).
NAFED lost. It violated the copyright agreement on the clip art.
3
Judge Fall
Defendant Jean Doe, a/k/a "moonshine_fr," appeals from an order… denying her motion to quash a subpoena issued to Yahoo! by plaintiff, Immunomedics, Inc., seeking all personally identifiable information relating to the person or identity who posted messages on the Yahoo! Finance Message Board under the identifier "moonshine_fr" which may identify or lead to the identification of that person or entity.
Immunomedics is a publicly held biopharmaceutical Delaware corporation … focused on the development, manufacture, and commercialization of diagnostic imaging and therapeutic products for the detection and treatment of cancer and infectious diseases.
Yahoo! is an Internet Service Provider (ISP) that maintains a Web site that includes a section called Yahoo! Finance. Yahoo! Finance maintains a message board for every publicly traded company, including Immunomedics. Visitors to the Immunomedics site can obtain up-to-date information on the company, and can post and exchange messages about issues related to the operation or performance of the company.
On October 12, 2000, Immunomedics filed a complaint against Jean Doe, also known by the computer screen name "moonshine_fr" ("Moonshine"). The complaint alleged that Moonshine had "posted a message on Yahoo! Finance." Immunomedics claimed that message contained information confidential and proprietary to Immunomedics. As a result, Immunomedics asserted it had sustained injury and that Moonshine should be held liable under theories of breach of contract, breach of duty of loyalty, and negligently revealing confidential and proprietary information.
Of the two messages in question, the first, with Moonshine describing herself as "[a] worried employee," stated that Immunomedics was "out of stock for diagnostic products in Europe" and claimed that there would be "no more sales if [the] situation [did] not change." The second message, allegedly posted by Moonshine after the initial complaint was filed, reported that Chairman of the Company Dr. Goldenberg was going to fire the Immunomedics "european manager." In her certification to the trial court, Immunomedics' Executive Vice President and Chief Operations Officer Cynthia L. Sullivan admitted that the statements were true, but that, as an employee, Moonshine had violated the company's confidentiality agreement and "several provisions" of the company's Employee Handbook.
On or about October 20, 2000, Immunomedics served a subpoena on Yahoo!, seeking discovery of Moonshine's true identity- Yahoo!, in turn, contacted Moonshine. In response, Moonshine filed a motion to quash the subpoena on or about November 15, 2000....
After considering the arguments, the judge denied Moonshine's motion, stating, in pertinent part, We have two issues here.
We have an issue, she's an employee, she signed a confidential document saying that she was not going to speak freely about information she learned at the company. So she contracted away her right of free speech if she's an employee. Number two, free speech, anonymous, but if it harms another individual, that is another way that we have a little bit of a dent in our rights for free speech.
Moonshine contends the motion judge erred in denying her motion to quash the subpoena, as anonymous speech is constitutionally protected and Immunomedics' complaint is insufficient to warrant a breach of that anonymity. Immunomedics argues that, while anonymous speech is constitutionally protected, that protection can be overcome if a defendant uses that freedom in an unlawful manner
In another case involving an application for expedited discover to disclose the identity of an anonymous user of an ISP message board, we concluded that courts must decide such applications by striking a balance between the First Amendment right of an individual to speak anonymously and the right of a company to protect its proprietary interest in the pursuit of claims based on actionable conduct by the ISP message board user.
We hold that… the trial court should first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously named defendants a reasonable opportunity to file and serve opposition to the application. These notification efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP's pertinent message board.
The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitute actionable speech.
The complaint and all information provided to the court should be carefully reviewed to determine whether plaintiff has set forth a prima facie cause of action against the fictitiously named anonymous defendants. In addition to establishing that its action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted, the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant.
Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed.
The application of these procedures and standards must be undertaken and analyzed on a case-by-case basis. The guiding principle is a result based on a meaningful analysis and a proper balancing of the equities and rights at issue.
... Here, Immunomedics' cause of action is based on Moonshine's status as an employee and her alleged violation of a confidentiality agreement, and Moonshine's alleged breach of her common law duty of loyalty....
Applying the procedure and test outlined, we conclude Judge Zucker-Zarett properly analyzed the disclosure issue, and we affirm substantially for the reasons articulated by the judge in her oral opinion.... We add the following. Immunomedics presented sufficient evidence that Moonshine is, or was, an employee of Immunomedics. Ms. Sullivan indicated in her certification that "all employees are bound by several Company policies and a confidentiality agreement." Within its "Confidentiality and Assignment Agreement," Immunomedics includes the following language:
This Agreement and any disputes arising under or in connection with it shall be governed by the laws of the State of New Jersey and each of the parties hereto hereby submits to the jurisdiction of any Federal or state court sitting in the State of New Jersey over any such dispute.
Accordingly, Immunomedics clearly established a prima facie cause of action for breach of the confidentiality agreement founded on the content of Moonshine's posted messages.
In balancing Moonshine's right of anonymous free speech against the strength of the prima facie case presented and the necessity for disclosure, it is clearthatthe motion judge struck the proper balance in favor of identity disclosure. With evidence demonstrating Moonshine is an employee of Immunomedics, that employees execute confidentiality agreements, and the content of Moonshine's posted messages providing evidence of the breach thereof, the disclosure of Moonshine's identity, which can be reasonably calculated to be achieved by information obtained from the subpoena, was fully warranted. Although anonymous speech on the Internet is protected, there must be an avenue for redress for those who are wronged. Individuals choosing to harm another or violate an agreement through speech on the Internet cannot hope to shield their identity and avoid punishment through invocation of the First Amendment.
Affirmed.
An FBI agent monitored an AOL chat room suspected of being a site for exchanging child pornography. The agent did not participate in the chat room conversations. Charbonneau allegedly distributed child pornography to the chat room participants, including the FBI agent. Charbonneau was arrested. Did Charbonneau have a First Amendment free speech right to transmit child pornography online? Explain. See U. S. v. Kenneth Charbonneau, 979 F.Supp. 1177 (S.D. Ohio 1997).
Defendant Jean Doe, a/k/a "moonshine_fr," appeals from an order… denying her motion to quash a subpoena issued to Yahoo! by plaintiff, Immunomedics, Inc., seeking all personally identifiable information relating to the person or identity who posted messages on the Yahoo! Finance Message Board under the identifier "moonshine_fr" which may identify or lead to the identification of that person or entity.
Immunomedics is a publicly held biopharmaceutical Delaware corporation … focused on the development, manufacture, and commercialization of diagnostic imaging and therapeutic products for the detection and treatment of cancer and infectious diseases.
Yahoo! is an Internet Service Provider (ISP) that maintains a Web site that includes a section called Yahoo! Finance. Yahoo! Finance maintains a message board for every publicly traded company, including Immunomedics. Visitors to the Immunomedics site can obtain up-to-date information on the company, and can post and exchange messages about issues related to the operation or performance of the company.
On October 12, 2000, Immunomedics filed a complaint against Jean Doe, also known by the computer screen name "moonshine_fr" ("Moonshine"). The complaint alleged that Moonshine had "posted a message on Yahoo! Finance." Immunomedics claimed that message contained information confidential and proprietary to Immunomedics. As a result, Immunomedics asserted it had sustained injury and that Moonshine should be held liable under theories of breach of contract, breach of duty of loyalty, and negligently revealing confidential and proprietary information.
Of the two messages in question, the first, with Moonshine describing herself as "[a] worried employee," stated that Immunomedics was "out of stock for diagnostic products in Europe" and claimed that there would be "no more sales if [the] situation [did] not change." The second message, allegedly posted by Moonshine after the initial complaint was filed, reported that Chairman of the Company Dr. Goldenberg was going to fire the Immunomedics "european manager." In her certification to the trial court, Immunomedics' Executive Vice President and Chief Operations Officer Cynthia L. Sullivan admitted that the statements were true, but that, as an employee, Moonshine had violated the company's confidentiality agreement and "several provisions" of the company's Employee Handbook.
On or about October 20, 2000, Immunomedics served a subpoena on Yahoo!, seeking discovery of Moonshine's true identity- Yahoo!, in turn, contacted Moonshine. In response, Moonshine filed a motion to quash the subpoena on or about November 15, 2000....
After considering the arguments, the judge denied Moonshine's motion, stating, in pertinent part, We have two issues here.
We have an issue, she's an employee, she signed a confidential document saying that she was not going to speak freely about information she learned at the company. So she contracted away her right of free speech if she's an employee. Number two, free speech, anonymous, but if it harms another individual, that is another way that we have a little bit of a dent in our rights for free speech.
Moonshine contends the motion judge erred in denying her motion to quash the subpoena, as anonymous speech is constitutionally protected and Immunomedics' complaint is insufficient to warrant a breach of that anonymity. Immunomedics argues that, while anonymous speech is constitutionally protected, that protection can be overcome if a defendant uses that freedom in an unlawful manner
In another case involving an application for expedited discover to disclose the identity of an anonymous user of an ISP message board, we concluded that courts must decide such applications by striking a balance between the First Amendment right of an individual to speak anonymously and the right of a company to protect its proprietary interest in the pursuit of claims based on actionable conduct by the ISP message board user.
We hold that… the trial court should first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously named defendants a reasonable opportunity to file and serve opposition to the application. These notification efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP's pertinent message board.
The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitute actionable speech.
The complaint and all information provided to the court should be carefully reviewed to determine whether plaintiff has set forth a prima facie cause of action against the fictitiously named anonymous defendants. In addition to establishing that its action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted, the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant.
Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed.
The application of these procedures and standards must be undertaken and analyzed on a case-by-case basis. The guiding principle is a result based on a meaningful analysis and a proper balancing of the equities and rights at issue.
... Here, Immunomedics' cause of action is based on Moonshine's status as an employee and her alleged violation of a confidentiality agreement, and Moonshine's alleged breach of her common law duty of loyalty....
Applying the procedure and test outlined, we conclude Judge Zucker-Zarett properly analyzed the disclosure issue, and we affirm substantially for the reasons articulated by the judge in her oral opinion.... We add the following. Immunomedics presented sufficient evidence that Moonshine is, or was, an employee of Immunomedics. Ms. Sullivan indicated in her certification that "all employees are bound by several Company policies and a confidentiality agreement." Within its "Confidentiality and Assignment Agreement," Immunomedics includes the following language:
This Agreement and any disputes arising under or in connection with it shall be governed by the laws of the State of New Jersey and each of the parties hereto hereby submits to the jurisdiction of any Federal or state court sitting in the State of New Jersey over any such dispute.
Accordingly, Immunomedics clearly established a prima facie cause of action for breach of the confidentiality agreement founded on the content of Moonshine's posted messages.
In balancing Moonshine's right of anonymous free speech against the strength of the prima facie case presented and the necessity for disclosure, it is clearthatthe motion judge struck the proper balance in favor of identity disclosure. With evidence demonstrating Moonshine is an employee of Immunomedics, that employees execute confidentiality agreements, and the content of Moonshine's posted messages providing evidence of the breach thereof, the disclosure of Moonshine's identity, which can be reasonably calculated to be achieved by information obtained from the subpoena, was fully warranted. Although anonymous speech on the Internet is protected, there must be an avenue for redress for those who are wronged. Individuals choosing to harm another or violate an agreement through speech on the Internet cannot hope to shield their identity and avoid punishment through invocation of the First Amendment.
Affirmed.
An FBI agent monitored an AOL chat room suspected of being a site for exchanging child pornography. The agent did not participate in the chat room conversations. Charbonneau allegedly distributed child pornography to the chat room participants, including the FBI agent. Charbonneau was arrested. Did Charbonneau have a First Amendment free speech right to transmit child pornography online? Explain. See U. S. v. Kenneth Charbonneau, 979 F.Supp. 1177 (S.D. Ohio 1997).
As per given passage, FBI agent examine a websites in suspect for exchanging child pornography. The agent has not even participated in the chat. Later C found distributing child pornography to the participant of chat room. Consequently C was arrested.
In context of child pornography C did not have a rational anticipation of privacy regarding e-mails that he sent to an on-line chat room. Thus, messages collected from the chat room by government agents were allowable. Therefore, C did not have any free speech right to transfer child pornography online.
In context of child pornography C did not have a rational anticipation of privacy regarding e-mails that he sent to an on-line chat room. Thus, messages collected from the chat room by government agents were allowable. Therefore, C did not have any free speech right to transfer child pornography online.
4
Recently journalist John Snell remarked, "Not long ago you couldn't turn around in cyberspace without bumping into a tech geek. Now you're no more than a mouse click away from a lawyer. Attorneys are everywhere." 84 What factors account for the dramatic increase in lawyers addressing Internet issues
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5
Will this decision effectively stop illegal downloading of copyrighted material Explain.
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6
At this writing, more than a thousand new top-level domain names (TLDs) are just starting to go live. TLDs are the descriptors that follow the period in a Web address, such as.com.org, and gov. Up until 2014, there were 22 general TLDs and 280 country-specific ones. Some of the new TLDs will be written in Arabic, Chinese, and Russian scripts; others are likely to be company names, such as.google or.amazon; still others will be generic terms, such as.blog or.pizza. Successful registrants will have the right to sell second-level domains (the portion of the address that precedes the TLD). Thus, popular TLDs could also be very lucrative to their holders. Verisign, which currently manages the.com and.net TLDs, reported $874 million in 2012 revenues. ICANN accepted proposals from applicants for both open-use TLDs and restricted TLDs, the use of which the successful applicant might reserve solely for itself. L'Oreal is seeking the TLD.beauty and has stated that it would reserve some second-level domains, such as personal. beauty for itself. Amazon indicated that all of the TLDs for which it applied will be closed, for its use only. ICANN has indicated, however, that it has not yet determined whether to allow "closed generic domains." [For more on the new TLDs, see http://newgtlds.icann.org/en]
Applicants were charged $185,000 for each TLD application they filed. They will incur another $25,000 annually for each TLD they retain. Do these fees raise ethical issues in terms of who might have wanted to control a particular TLD, but were financially unable to pay these fees Explain.
Applicants were charged $185,000 for each TLD application they filed. They will incur another $25,000 annually for each TLD they retain. Do these fees raise ethical issues in terms of who might have wanted to control a particular TLD, but were financially unable to pay these fees Explain.
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7
PROCEDURAL HISTORY
[Defendant] La Ligue Contre Le Racisme Et L'Antisemitisme ("LICRA") [is a French nonprofit organization] dedicated to eliminating anti-Semitism. Plaintiff Yahoo!, Inc. ("Yahoo!") is a corporation organized under the laws of Delaware with its principal place of business in Santa Clara, California…. Yahoo! services ending in the suffix ".com," without an associated country code as a prefix or extension (collectively, "Yahooi's U.S. Services"), use the English language and target users who are residents of, utilize servers based in, and operate under the laws of the United States. Yahoo! subsidiary corporations operate regional Yahoo! sites and services in 20 other nations, including, for example, Yahoo! France, Yahoo! India, and Yahoo! Spain. Each of these regional websites contains the host nation's unique two-letter code as either a prefix or a suffix in its URL. Yahooi's regional sites use the local region's primary language, target the local citizenry, and operate under local laws.
Yahoo! provides a variety of means by which people from all over the world can communicate and interact with one another over the Internet-As relevant here, Yahooi's auction site allows anyone to post an item for sale and solicit bids from any computer user from around the globe. Yahoo! records when a posting is made and after the requisite time period lapses sends an e-mail notification to the highest bidder and seller with their respective contact information. Yahoo! is never a party to a transaction, and the buyer and seller are responsible for arranging privately for payment and shipment of goods. Yahoo! monitors the transaction through limited regulation by prohibiting particular items from being sold (such as stolen goods, body parts, prescription and illegal drugs, weapons, and goods violating U.S. copyright laws or the Iranian and Cuban embargos) Yahoo! informs auction sellers that they must comply with Yahooi's policies and may not offer items to buyers in jurisdictions in which the sale of such item violates the jurisdiction's applicable laws. Yahoo! does not actively regulate the content of each posting, and individuals are able to post, and have in fact posted, highly of fensive matter, including Nazi-related propaganda and Third Reich memorabilia, on Yahooi's auction sites.
On or about April 5, 2000, LICRA sent a "cease and desist" letter to Yahooi's Santa Clara headquarters informing Yahoo! that the sale of Nazi and Third Reich-related goods through its auction services violates French law. LICRA threatened to take legal action unless Yahoo! took steps to prevent such sales within eight days. Defendants subsequently utilized the United States Marshal's Office to serve Yahoo! with process in California and filed a civil complaint against Yahoo! in the Tribunal de Grande Instance de Paris (the "French Court").
The French Court found that approximately 1,000 Nazi and Third Reich-related objects, including Adolf Hitler's Mein Kampf, The Protocol of the Elders of Zion (an infamous anti- Semitic report produced by the Czarist secret police in the early 1900s), and purported "evidence" that the gas chambers of the Holocaust did not exist, were being offered for sale on Yahoo.com's auction site. Because any French citizen is able to access these materials on Yahoo.com directly or through a link on Yahoo.fr, the French Court concluded that the Yahoo.com auction site violates Section R645-1 of the French Criminal Code, which prohibits exhibition of Nazi propaganda and artifacts for sale. On May 20, 2000, the French Court entered an order requiring Yahoo! to (1) eliminate French citizens' access to any material on the Yahoo.com auction site that offers for sale any Nazi objects, relics, insignia, emblems, and flags; (2) eliminate French citizens' access to Web pages on Yahoo, com displaying text, extracts, or quotations from Mein Kampf and Protocol of the Elders of Zion;(3) post a warning to French citizens on Yahoo.fr that any search through Yahoo.com may lead to sites containing material prohibited by Section R645-1 of the French Criminal Code, and that such viewing of the prohibited material may result in legal action against the Internet user; (4) remove from all browser directories accessible in the French Republic index headings entitled "negationists" and from all hypertext links the equation of "negationists" under the heading "Holocaust." The order subjects Yahoo! to a penalty of 100,000 Euros for each day that it fails to comply with the order …..
The French Court also provided that penalties assessed against Yahoo! Inc. may not be collected from Yahoo! France. Defendants again utilized the United States Marshal's Office to serve Yahoo! in California with the French Order.
Yahoo! subsequently posted the required warning and prohibited postings in violation of Section R645-1 of the French Criminal Code from appearing on Yahoo.fr. Yahoo! also amended the auction policy ofYahoo.com to prohibit individuals from auctioning:
Any item that promotes, glorifies, or is directly associated with groups or individuals known principally for hateful or violent positions or acts, such as Nazis or the Ku Klux Klan. Official government-issue stamps and coins are not prohibited under this policy. Expressive media, such as books and films, may be subject to more permissive standards as determined by Yahoo! in its sole discretion.
Notwithstanding these actions, the Yahoo.com auction site still offers certain items for sale (such as stamps, coins, and a copy of Mein Kampf) which appear to violate the French Order....
Yahoo! claims that because it lacks the technology to block French citizens from accessing the Yahoo.com auction site to view materials which violate the French order or from accessing other Nazi-based content of websites on Yahoo, com, it cannot comply with the French order without banning Nazi-related material from Yahoo.com altogether. Yahoo! contends that such a ban would infringe impermissibly upon its rights under the First Amendment to the United States Constitution. Accordingly, Yahoo! filed a complaint in this Court seeking a declaratory judgment that the French Court's orders are neither cognizable nor enforceable under the laws of the United States.
Defendants immediately moved to dismiss on the basis that this Court lacks personal jurisdiction over them. That motion was denied....
II. OVERVIEW
As this Court and others have observed, the instant case presents novel and important issues arising from the global reach of the Internet. Indeed, the specific facts of this case implicate issues of policy, politics, and culture that are beyond the purview of one nation's judiciary. Thus it is critical that the Court define at the outset what is and is not at stake in the present proceeding.
This case is not about the moral acceptability of promoting the symbols or propaganda of Nazism. Most would agree that such acts are profoundly offensive. By any reasonable standard of morality, the Nazis were responsible for one of the worst displays of inhumanity in recorded history….
Nor is this case about the right of France or any other nation to determine its own law and social policies. A basic function of a sovereign state is to determine by law what forms of speech and conduct are acceptable within its borders….
What is at issue here is whether it is consistent with the Constitution and laws of the United States for another nation to regulate speech by a United States resident within the United States on the basis that such speech can be accessed by Internet users in that nation. In a world in which ideas and information transcend borders and the Internet in particular renders the physical distance between speaker and audience virtually meaningless, the implications of this question go far beyond the facts of this case. The modern world is home to widely varied cultures with radically divergent value systems. There is little doubt that Internet users in the United States routinely engage in speech that violates, for example, China's laws against religious expression, the laws of various nations against advocacy of gender equality or homosexuality, or even the United Kingdom's restrictions on freedom of the press.
The French order prohibits the sale or display of items based on their association with a particular political organization and bans the display of websites based on the authors' viewpoint with respect to the Holocaust and anti-Semitism. A United States court constitutionally could not make such an order. The First Amendment does not permit the government to engage in viewpoint-based regulation of speech absent a compelling governmental interest, such as averting a clear and present danger of imminent violence.
Comity
No legal judgment has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived…. The extent to which the United States, or any state, honors the judicial decrees of foreign nations is a matter of choice, governed by "the comity of nations." United States courts generally recognize foreign judgments and decrees unless enforcement would be prejudicial or contrary to the country's interests.
As discussed previously, the French order's content and viewpoint-based regulation of the Web pages and auction site on Yahoo.com, while entitled to great deference as an articulation of French law, clearly would be inconsistent with the First Amendment if mandated by a court in the United States….
The reason for limiting comity in this area is sound. "The protection to free speech and the press embodied in [the First] amendment would be seriously jeopardized by the entry of foreign judgments granted pursuant to standards deemed appropriate in [another country] but considered antithetical to the protections afforded the press by the U.S. Constitution." Absent a body of law that establishes international standards with respect to speech on the Internet and an appropriate treaty or legislation addressing enforcement of such standards to speech originating within the United States, the principle of comity is outweighed by the Court's obligation to uphold the First Amendment.
CONCLUSION
Yahoo! seeks a declaration from this Court that the First Amendment precludes enforcement within the United States of a French order intended to regulate the content of its speech over the Internet…. Accordingly, the motion for summary judgment will be granted.
AFTERWORD
On appeal in 2006 the Ninth Circuit Court of Appeals ruled by a vote of eight to three that the California district court had personal jurisdiction over the French defendants, but six judges also held that Yahoo! could not pursue its declaratory judgment action. Three of those six said the declaratory judgment action was not "ripe" for decision, while the other three were the minority that held that the court had no personal jurisdiction. The Supreme Court declined to review the decision.
If you were sitting on the Ninth Circuit, how would you have decided the jurisdiction question? Consider both the U.S. rule of minimum contacts and the Restatement provision.
[Defendant] La Ligue Contre Le Racisme Et L'Antisemitisme ("LICRA") [is a French nonprofit organization] dedicated to eliminating anti-Semitism. Plaintiff Yahoo!, Inc. ("Yahoo!") is a corporation organized under the laws of Delaware with its principal place of business in Santa Clara, California…. Yahoo! services ending in the suffix ".com," without an associated country code as a prefix or extension (collectively, "Yahooi's U.S. Services"), use the English language and target users who are residents of, utilize servers based in, and operate under the laws of the United States. Yahoo! subsidiary corporations operate regional Yahoo! sites and services in 20 other nations, including, for example, Yahoo! France, Yahoo! India, and Yahoo! Spain. Each of these regional websites contains the host nation's unique two-letter code as either a prefix or a suffix in its URL. Yahooi's regional sites use the local region's primary language, target the local citizenry, and operate under local laws.
Yahoo! provides a variety of means by which people from all over the world can communicate and interact with one another over the Internet-As relevant here, Yahooi's auction site allows anyone to post an item for sale and solicit bids from any computer user from around the globe. Yahoo! records when a posting is made and after the requisite time period lapses sends an e-mail notification to the highest bidder and seller with their respective contact information. Yahoo! is never a party to a transaction, and the buyer and seller are responsible for arranging privately for payment and shipment of goods. Yahoo! monitors the transaction through limited regulation by prohibiting particular items from being sold (such as stolen goods, body parts, prescription and illegal drugs, weapons, and goods violating U.S. copyright laws or the Iranian and Cuban embargos) Yahoo! informs auction sellers that they must comply with Yahooi's policies and may not offer items to buyers in jurisdictions in which the sale of such item violates the jurisdiction's applicable laws. Yahoo! does not actively regulate the content of each posting, and individuals are able to post, and have in fact posted, highly of fensive matter, including Nazi-related propaganda and Third Reich memorabilia, on Yahooi's auction sites.
On or about April 5, 2000, LICRA sent a "cease and desist" letter to Yahooi's Santa Clara headquarters informing Yahoo! that the sale of Nazi and Third Reich-related goods through its auction services violates French law. LICRA threatened to take legal action unless Yahoo! took steps to prevent such sales within eight days. Defendants subsequently utilized the United States Marshal's Office to serve Yahoo! with process in California and filed a civil complaint against Yahoo! in the Tribunal de Grande Instance de Paris (the "French Court").
The French Court found that approximately 1,000 Nazi and Third Reich-related objects, including Adolf Hitler's Mein Kampf, The Protocol of the Elders of Zion (an infamous anti- Semitic report produced by the Czarist secret police in the early 1900s), and purported "evidence" that the gas chambers of the Holocaust did not exist, were being offered for sale on Yahoo.com's auction site. Because any French citizen is able to access these materials on Yahoo.com directly or through a link on Yahoo.fr, the French Court concluded that the Yahoo.com auction site violates Section R645-1 of the French Criminal Code, which prohibits exhibition of Nazi propaganda and artifacts for sale. On May 20, 2000, the French Court entered an order requiring Yahoo! to (1) eliminate French citizens' access to any material on the Yahoo.com auction site that offers for sale any Nazi objects, relics, insignia, emblems, and flags; (2) eliminate French citizens' access to Web pages on Yahoo, com displaying text, extracts, or quotations from Mein Kampf and Protocol of the Elders of Zion;(3) post a warning to French citizens on Yahoo.fr that any search through Yahoo.com may lead to sites containing material prohibited by Section R645-1 of the French Criminal Code, and that such viewing of the prohibited material may result in legal action against the Internet user; (4) remove from all browser directories accessible in the French Republic index headings entitled "negationists" and from all hypertext links the equation of "negationists" under the heading "Holocaust." The order subjects Yahoo! to a penalty of 100,000 Euros for each day that it fails to comply with the order …..
The French Court also provided that penalties assessed against Yahoo! Inc. may not be collected from Yahoo! France. Defendants again utilized the United States Marshal's Office to serve Yahoo! in California with the French Order.
Yahoo! subsequently posted the required warning and prohibited postings in violation of Section R645-1 of the French Criminal Code from appearing on Yahoo.fr. Yahoo! also amended the auction policy ofYahoo.com to prohibit individuals from auctioning:
Any item that promotes, glorifies, or is directly associated with groups or individuals known principally for hateful or violent positions or acts, such as Nazis or the Ku Klux Klan. Official government-issue stamps and coins are not prohibited under this policy. Expressive media, such as books and films, may be subject to more permissive standards as determined by Yahoo! in its sole discretion.
Notwithstanding these actions, the Yahoo.com auction site still offers certain items for sale (such as stamps, coins, and a copy of Mein Kampf) which appear to violate the French Order....
Yahoo! claims that because it lacks the technology to block French citizens from accessing the Yahoo.com auction site to view materials which violate the French order or from accessing other Nazi-based content of websites on Yahoo, com, it cannot comply with the French order without banning Nazi-related material from Yahoo.com altogether. Yahoo! contends that such a ban would infringe impermissibly upon its rights under the First Amendment to the United States Constitution. Accordingly, Yahoo! filed a complaint in this Court seeking a declaratory judgment that the French Court's orders are neither cognizable nor enforceable under the laws of the United States.
Defendants immediately moved to dismiss on the basis that this Court lacks personal jurisdiction over them. That motion was denied....
II. OVERVIEW
As this Court and others have observed, the instant case presents novel and important issues arising from the global reach of the Internet. Indeed, the specific facts of this case implicate issues of policy, politics, and culture that are beyond the purview of one nation's judiciary. Thus it is critical that the Court define at the outset what is and is not at stake in the present proceeding.
This case is not about the moral acceptability of promoting the symbols or propaganda of Nazism. Most would agree that such acts are profoundly offensive. By any reasonable standard of morality, the Nazis were responsible for one of the worst displays of inhumanity in recorded history….
Nor is this case about the right of France or any other nation to determine its own law and social policies. A basic function of a sovereign state is to determine by law what forms of speech and conduct are acceptable within its borders….
What is at issue here is whether it is consistent with the Constitution and laws of the United States for another nation to regulate speech by a United States resident within the United States on the basis that such speech can be accessed by Internet users in that nation. In a world in which ideas and information transcend borders and the Internet in particular renders the physical distance between speaker and audience virtually meaningless, the implications of this question go far beyond the facts of this case. The modern world is home to widely varied cultures with radically divergent value systems. There is little doubt that Internet users in the United States routinely engage in speech that violates, for example, China's laws against religious expression, the laws of various nations against advocacy of gender equality or homosexuality, or even the United Kingdom's restrictions on freedom of the press.
The French order prohibits the sale or display of items based on their association with a particular political organization and bans the display of websites based on the authors' viewpoint with respect to the Holocaust and anti-Semitism. A United States court constitutionally could not make such an order. The First Amendment does not permit the government to engage in viewpoint-based regulation of speech absent a compelling governmental interest, such as averting a clear and present danger of imminent violence.
Comity
No legal judgment has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived…. The extent to which the United States, or any state, honors the judicial decrees of foreign nations is a matter of choice, governed by "the comity of nations." United States courts generally recognize foreign judgments and decrees unless enforcement would be prejudicial or contrary to the country's interests.
As discussed previously, the French order's content and viewpoint-based regulation of the Web pages and auction site on Yahoo.com, while entitled to great deference as an articulation of French law, clearly would be inconsistent with the First Amendment if mandated by a court in the United States….
The reason for limiting comity in this area is sound. "The protection to free speech and the press embodied in [the First] amendment would be seriously jeopardized by the entry of foreign judgments granted pursuant to standards deemed appropriate in [another country] but considered antithetical to the protections afforded the press by the U.S. Constitution." Absent a body of law that establishes international standards with respect to speech on the Internet and an appropriate treaty or legislation addressing enforcement of such standards to speech originating within the United States, the principle of comity is outweighed by the Court's obligation to uphold the First Amendment.
CONCLUSION
Yahoo! seeks a declaration from this Court that the First Amendment precludes enforcement within the United States of a French order intended to regulate the content of its speech over the Internet…. Accordingly, the motion for summary judgment will be granted.
AFTERWORD
On appeal in 2006 the Ninth Circuit Court of Appeals ruled by a vote of eight to three that the California district court had personal jurisdiction over the French defendants, but six judges also held that Yahoo! could not pursue its declaratory judgment action. Three of those six said the declaratory judgment action was not "ripe" for decision, while the other three were the minority that held that the court had no personal jurisdiction. The Supreme Court declined to review the decision.
If you were sitting on the Ninth Circuit, how would you have decided the jurisdiction question? Consider both the U.S. rule of minimum contacts and the Restatement provision.
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8
Bitcoin: The Rise and Fall of a Virtual Currency
A paper published anonymously in 2008 outlined a method for creating a digital currency that could be exchanged on a peer-to-peer basis, but which would not be susceptible to unauthorized duplication. A year later the first Bitcoins were "mined" using an open-source program, which by design constrains how many digital coins can be created and at what intervals (currently 25 every 10 minutes, but dropping in half every four years, with a total cap of 21 million). Digital currencies, of which Bitcoin is just one example, al-though the one with the largest circulation thus far, are creatures of the Internet. They may have no issuing or governing body, can be self-authenticating, and are usable worldwide by members of the general public to engage in the same types of direct, one-to-one transactions that daily occur using government-issued currencies.
As a currency, a digital currency may have some advantages over other mediums of exchange. For example, merchants may prefer payment in Bitcoins because there is little or no transaction cost, in contrast to the 2 to 3 percent charged on most credit card transactions. Fees are charged on exchanges of Bitcoins into or out of a specific national currency, which is also true for any foreign-exchange transaction. But the global nature of Bitcoin makes such exchanges less necessary-or at least will make them less necessary if its fluctuation in value ultimately settles down. At present, however, its value can fluctuate tremendously. For example, as of early March 2013, one exchange showed its historical high closing at $1,147 on December 4, 2013, but on February 25, 2014, the closing was $535, following the announcement that the world's largest Bitcoin exchange, Mt. Gox in Japan, was likely to file for bankruptcy following its discovery of a large theft from its exchange. Just a week later, however, the price was hovering around $660.
Another cause of its fluctuating price is that the currency has largely gone unregulated by the world's governments. The United States has exerted some authority over the regulation of exchanges that deal in Bitcoin, but the currency itself is largely free of governmental interference. If the currency is going to survive, that likely will change at least to some degree.
Question
The questions for digital currencies are, of course, should they be regulated and, if so, by whom Based on Bitcoin's short history, what could regulation achieve What might it impede
A paper published anonymously in 2008 outlined a method for creating a digital currency that could be exchanged on a peer-to-peer basis, but which would not be susceptible to unauthorized duplication. A year later the first Bitcoins were "mined" using an open-source program, which by design constrains how many digital coins can be created and at what intervals (currently 25 every 10 minutes, but dropping in half every four years, with a total cap of 21 million). Digital currencies, of which Bitcoin is just one example, al-though the one with the largest circulation thus far, are creatures of the Internet. They may have no issuing or governing body, can be self-authenticating, and are usable worldwide by members of the general public to engage in the same types of direct, one-to-one transactions that daily occur using government-issued currencies.
As a currency, a digital currency may have some advantages over other mediums of exchange. For example, merchants may prefer payment in Bitcoins because there is little or no transaction cost, in contrast to the 2 to 3 percent charged on most credit card transactions. Fees are charged on exchanges of Bitcoins into or out of a specific national currency, which is also true for any foreign-exchange transaction. But the global nature of Bitcoin makes such exchanges less necessary-or at least will make them less necessary if its fluctuation in value ultimately settles down. At present, however, its value can fluctuate tremendously. For example, as of early March 2013, one exchange showed its historical high closing at $1,147 on December 4, 2013, but on February 25, 2014, the closing was $535, following the announcement that the world's largest Bitcoin exchange, Mt. Gox in Japan, was likely to file for bankruptcy following its discovery of a large theft from its exchange. Just a week later, however, the price was hovering around $660.
Another cause of its fluctuating price is that the currency has largely gone unregulated by the world's governments. The United States has exerted some authority over the regulation of exchanges that deal in Bitcoin, but the currency itself is largely free of governmental interference. If the currency is going to survive, that likely will change at least to some degree.
Question
The questions for digital currencies are, of course, should they be regulated and, if so, by whom Based on Bitcoin's short history, what could regulation achieve What might it impede
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9
In March 1992 Danish police seized the business records of BAMSE, a computer bulletin board system based in Denmark that sold child pornography over the Internet. The records included information that Mohrbacher, who lived in Paradise, California, had downloaded two graphic interface format (GIF) images from BAMSE in January 1992.
In March 1993 police executed a search warrant at Mohrbacher's workplace and found, among other images, two files that had been downloaded from BAMSE, one of a nude girl and one of a girl engaged in a sex act with an adult; both girls were under 12. During the execution of the warrant, Mohrbacher was cooperative, confessing that he had downloaded the two images from BAMSE. Mohrbacher was charged with transporting or shipping images by computer as prohibited by 18 U.S.C. 2252(a)(1). Mohrbacher argued that downloading is properly characterized as receiving images by computer, which is proscribed by section 2252(a)(2). He was not charged under (a)(2).
Does downloading from a computer bulletin board constitute shipping or transporting within the meaning of 18 U.S.C. section 2252(a)(1) Explain. See United States of America v. Mohrbacher, 182 F.3d 1041 (9th Cir. 1999).
In March 1993 police executed a search warrant at Mohrbacher's workplace and found, among other images, two files that had been downloaded from BAMSE, one of a nude girl and one of a girl engaged in a sex act with an adult; both girls were under 12. During the execution of the warrant, Mohrbacher was cooperative, confessing that he had downloaded the two images from BAMSE. Mohrbacher was charged with transporting or shipping images by computer as prohibited by 18 U.S.C. 2252(a)(1). Mohrbacher argued that downloading is properly characterized as receiving images by computer, which is proscribed by section 2252(a)(2). He was not charged under (a)(2).
Does downloading from a computer bulletin board constitute shipping or transporting within the meaning of 18 U.S.C. section 2252(a)(1) Explain. See United States of America v. Mohrbacher, 182 F.3d 1041 (9th Cir. 1999).
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10
The United Nations recently warned that the worldwide growth of e-commerce may constitute a threat to the well-being of the world's developing nations as well as parts of Europe. Explain the UN concerns.
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11
Judge Fall
Defendant Jean Doe, a/k/a "moonshine_fr," appeals from an order… denying her motion to quash a subpoena issued to Yahoo! by plaintiff, Immunomedics, Inc., seeking all personally identifiable information relating to the person or identity who posted messages on the Yahoo! Finance Message Board under the identifier "moonshine_fr" which may identify or lead to the identification of that person or entity.
Immunomedics is a publicly held biopharmaceutical Delaware corporation … focused on the development, manufacture, and commercialization of diagnostic imaging and therapeutic products for the detection and treatment of cancer and infectious diseases.
Yahoo! is an Internet Service Provider (ISP) that maintains a Web site that includes a section called Yahoo! Finance. Yahoo! Finance maintains a message board for every publicly traded company, including Immunomedics. Visitors to the Immunomedics site can obtain up-to-date information on the company, and can post and exchange messages about issues related to the operation or performance of the company.
On October 12, 2000, Immunomedics filed a complaint against Jean Doe, also known by the computer screen name "moonshine_fr" ("Moonshine"). The complaint alleged that Moonshine had "posted a message on Yahoo! Finance." Immunomedics claimed that message contained information confidential and proprietary to Immunomedics. As a result, Immunomedics asserted it had sustained injury and that Moonshine should be held liable under theories of breach of contract, breach of duty of loyalty, and negligently revealing confidential and proprietary information.
Of the two messages in question, the first, with Moonshine describing herself as "[a] worried employee," stated that Immunomedics was "out of stock for diagnostic products in Europe" and claimed that there would be "no more sales if [the] situation [did] not change." The second message, allegedly posted by Moonshine after the initial complaint was filed, reported that Chairman of the Company Dr. Goldenberg was going to fire the Immunomedics "european manager." In her certification to the trial court, Immunomedics' Executive Vice President and Chief Operations Officer Cynthia L. Sullivan admitted that the statements were true, but that, as an employee, Moonshine had violated the company's confidentiality agreement and "several provisions" of the company's Employee Handbook.
On or about October 20, 2000, Immunomedics served a subpoena on Yahoo!, seeking discovery of Moonshine's true identity- Yahoo!, in turn, contacted Moonshine. In response, Moonshine filed a motion to quash the subpoena on or about November 15, 2000....
After considering the arguments, the judge denied Moonshine's motion, stating, in pertinent part, We have two issues here.
We have an issue, she's an employee, she signed a confidential document saying that she was not going to speak freely about information she learned at the company. So she contracted away her right of free speech if she's an employee. Number two, free speech, anonymous, but if it harms another individual, that is another way that we have a little bit of a dent in our rights for free speech.
Moonshine contends the motion judge erred in denying her motion to quash the subpoena, as anonymous speech is constitutionally protected and Immunomedics' complaint is insufficient to warrant a breach of that anonymity. Immunomedics argues that, while anonymous speech is constitutionally protected, that protection can be overcome if a defendant uses that freedom in an unlawful manner
In another case involving an application for expedited discover to disclose the identity of an anonymous user of an ISP message board, we concluded that courts must decide such applications by striking a balance between the First Amendment right of an individual to speak anonymously and the right of a company to protect its proprietary interest in the pursuit of claims based on actionable conduct by the ISP message board user.
We hold that… the trial court should first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously named defendants a reasonable opportunity to file and serve opposition to the application. These notification efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP's pertinent message board.
The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitute actionable speech.
The complaint and all information provided to the court should be carefully reviewed to determine whether plaintiff has set forth a prima facie cause of action against the fictitiously named anonymous defendants. In addition to establishing that its action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted, the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant.
Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed.
The application of these procedures and standards must be undertaken and analyzed on a case-by-case basis. The guiding principle is a result based on a meaningful analysis and a proper balancing of the equities and rights at issue.
... Here, Immunomedics' cause of action is based on Moonshine's status as an employee and her alleged violation of a confidentiality agreement, and Moonshine's alleged breach of her common law duty of loyalty....
Applying the procedure and test outlined, we conclude Judge Zucker-Zarett properly analyzed the disclosure issue, and we affirm substantially for the reasons articulated by the judge in her oral opinion.... We add the following. Immunomedics presented sufficient evidence that Moonshine is, or was, an employee of Immunomedics. Ms. Sullivan indicated in her certification that "all employees are bound by several Company policies and a confidentiality agreement." Within its "Confidentiality and Assignment Agreement," Immunomedics includes the following language:
This Agreement and any disputes arising under or in connection with it shall be governed by the laws of the State of New Jersey and each of the parties hereto hereby submits to the jurisdiction of any Federal or state court sitting in the State of New Jersey over any such dispute.
Accordingly, Immunomedics clearly established a prima facie cause of action for breach of the confidentiality agreement founded on the content of Moonshine's posted messages.
In balancing Moonshine's right of anonymous free speech against the strength of the prima facie case presented and the necessity for disclosure, it is clearthatthe motion judge struck the proper balance in favor of identity disclosure. With evidence demonstrating Moonshine is an employee of Immunomedics, that employees execute confidentiality agreements, and the content of Moonshine's posted messages providing evidence of the breach thereof, the disclosure of Moonshine's identity, which can be reasonably calculated to be achieved by information obtained from the subpoena, was fully warranted. Although anonymous speech on the Internet is protected, there must be an avenue for redress for those who are wronged. Individuals choosing to harm another or violate an agreement through speech on the Internet cannot hope to shield their identity and avoid punishment through invocation of the First Amendment.
Affirmed.
Having read these materials on freedom of speech and the limits on the right to anonymity, what would you advise a friend who was a regular blogger A classmate posting comments on www.ratemyprofessors.com Your middle school cousin who is an avid Facebook user Explain.
Defendant Jean Doe, a/k/a "moonshine_fr," appeals from an order… denying her motion to quash a subpoena issued to Yahoo! by plaintiff, Immunomedics, Inc., seeking all personally identifiable information relating to the person or identity who posted messages on the Yahoo! Finance Message Board under the identifier "moonshine_fr" which may identify or lead to the identification of that person or entity.
Immunomedics is a publicly held biopharmaceutical Delaware corporation … focused on the development, manufacture, and commercialization of diagnostic imaging and therapeutic products for the detection and treatment of cancer and infectious diseases.
Yahoo! is an Internet Service Provider (ISP) that maintains a Web site that includes a section called Yahoo! Finance. Yahoo! Finance maintains a message board for every publicly traded company, including Immunomedics. Visitors to the Immunomedics site can obtain up-to-date information on the company, and can post and exchange messages about issues related to the operation or performance of the company.
On October 12, 2000, Immunomedics filed a complaint against Jean Doe, also known by the computer screen name "moonshine_fr" ("Moonshine"). The complaint alleged that Moonshine had "posted a message on Yahoo! Finance." Immunomedics claimed that message contained information confidential and proprietary to Immunomedics. As a result, Immunomedics asserted it had sustained injury and that Moonshine should be held liable under theories of breach of contract, breach of duty of loyalty, and negligently revealing confidential and proprietary information.
Of the two messages in question, the first, with Moonshine describing herself as "[a] worried employee," stated that Immunomedics was "out of stock for diagnostic products in Europe" and claimed that there would be "no more sales if [the] situation [did] not change." The second message, allegedly posted by Moonshine after the initial complaint was filed, reported that Chairman of the Company Dr. Goldenberg was going to fire the Immunomedics "european manager." In her certification to the trial court, Immunomedics' Executive Vice President and Chief Operations Officer Cynthia L. Sullivan admitted that the statements were true, but that, as an employee, Moonshine had violated the company's confidentiality agreement and "several provisions" of the company's Employee Handbook.
On or about October 20, 2000, Immunomedics served a subpoena on Yahoo!, seeking discovery of Moonshine's true identity- Yahoo!, in turn, contacted Moonshine. In response, Moonshine filed a motion to quash the subpoena on or about November 15, 2000....
After considering the arguments, the judge denied Moonshine's motion, stating, in pertinent part, We have two issues here.
We have an issue, she's an employee, she signed a confidential document saying that she was not going to speak freely about information she learned at the company. So she contracted away her right of free speech if she's an employee. Number two, free speech, anonymous, but if it harms another individual, that is another way that we have a little bit of a dent in our rights for free speech.
Moonshine contends the motion judge erred in denying her motion to quash the subpoena, as anonymous speech is constitutionally protected and Immunomedics' complaint is insufficient to warrant a breach of that anonymity. Immunomedics argues that, while anonymous speech is constitutionally protected, that protection can be overcome if a defendant uses that freedom in an unlawful manner
In another case involving an application for expedited discover to disclose the identity of an anonymous user of an ISP message board, we concluded that courts must decide such applications by striking a balance between the First Amendment right of an individual to speak anonymously and the right of a company to protect its proprietary interest in the pursuit of claims based on actionable conduct by the ISP message board user.
We hold that… the trial court should first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously named defendants a reasonable opportunity to file and serve opposition to the application. These notification efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP's pertinent message board.
The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitute actionable speech.
The complaint and all information provided to the court should be carefully reviewed to determine whether plaintiff has set forth a prima facie cause of action against the fictitiously named anonymous defendants. In addition to establishing that its action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted, the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant.
Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed.
The application of these procedures and standards must be undertaken and analyzed on a case-by-case basis. The guiding principle is a result based on a meaningful analysis and a proper balancing of the equities and rights at issue.
... Here, Immunomedics' cause of action is based on Moonshine's status as an employee and her alleged violation of a confidentiality agreement, and Moonshine's alleged breach of her common law duty of loyalty....
Applying the procedure and test outlined, we conclude Judge Zucker-Zarett properly analyzed the disclosure issue, and we affirm substantially for the reasons articulated by the judge in her oral opinion.... We add the following. Immunomedics presented sufficient evidence that Moonshine is, or was, an employee of Immunomedics. Ms. Sullivan indicated in her certification that "all employees are bound by several Company policies and a confidentiality agreement." Within its "Confidentiality and Assignment Agreement," Immunomedics includes the following language:
This Agreement and any disputes arising under or in connection with it shall be governed by the laws of the State of New Jersey and each of the parties hereto hereby submits to the jurisdiction of any Federal or state court sitting in the State of New Jersey over any such dispute.
Accordingly, Immunomedics clearly established a prima facie cause of action for breach of the confidentiality agreement founded on the content of Moonshine's posted messages.
In balancing Moonshine's right of anonymous free speech against the strength of the prima facie case presented and the necessity for disclosure, it is clearthatthe motion judge struck the proper balance in favor of identity disclosure. With evidence demonstrating Moonshine is an employee of Immunomedics, that employees execute confidentiality agreements, and the content of Moonshine's posted messages providing evidence of the breach thereof, the disclosure of Moonshine's identity, which can be reasonably calculated to be achieved by information obtained from the subpoena, was fully warranted. Although anonymous speech on the Internet is protected, there must be an avenue for redress for those who are wronged. Individuals choosing to harm another or violate an agreement through speech on the Internet cannot hope to shield their identity and avoid punishment through invocation of the First Amendment.
Affirmed.
Having read these materials on freedom of speech and the limits on the right to anonymity, what would you advise a friend who was a regular blogger A classmate posting comments on www.ratemyprofessors.com Your middle school cousin who is an avid Facebook user Explain.
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12
Internet Access
As we have seen in other areas, market forces and legal regulation will blend in some uncertain, emerging formula to provide the security and confidence necessary for effective e-commerce. But ethics, too, will play a part. The speed, the traffic volume, the surface anonymity, and the global reach of the Internet suggest very difficult, and new, ethical issues, as well as old problems in a new venue. We turn now to two access issues.
The Digital Divide
The divide in the United States is not just along economic lines, but also along race, age, and geographic lines. Seventy-six percent of white households are connected, but only 57 percent of African-American households; 75 percent of those under 65 use the Internet, but only about 50 percent of those 65 and older; and the lowest Internet usage is in Mississippi, Alabama, and Arkansas. Although nearly 98 percent of American households are located where broadband is available, 20 percent of American adults are not connected-not at home, at work, through public access points such as libraries, or through a smart phone. Availability of service is not the problem; the cost of connecting and digital literacy are. But presumptions about availability exacerbate the disadvantages of the unconnected, as job an nouncements and applications, public school homework assignments, government services information and applications, among many other things, migrate to the web.
An even greater access imbalance exists at the global level. For example, only 15.6 percent of Africa's citizens have access, compared with 78.6 percent in North America. Worldwide, it is estimated that just over one-third of the population is connected. But the number of connections is growing by less than 9 percent annually. As in the United States, one issue of access is availability, another is user cost, and another is training. But each of these issues is more intransigent outside of the United States. For example, only 24 percent of the population in sub-Saharan Africa has access to electricity. In most of these countries, the gross domestic product per capita is under $2,000. A group of seven well-known high-tech companies announced in 2013 the start of an Internet access project to address the two-thirds of the world's population that is on the other side of the divide, but it is too early to tell if significant improvement will result. [For current statistics on world Internet usage, see www.internetworldstats.com/stats.htm ]
Can you think of any imaginative ways to provide widespread Internet access in developing countries For one approach, watch the video at. http://www.ted.com/talks/aleph_molinari_let_s_bridge_the_digital_divide.html.
As we have seen in other areas, market forces and legal regulation will blend in some uncertain, emerging formula to provide the security and confidence necessary for effective e-commerce. But ethics, too, will play a part. The speed, the traffic volume, the surface anonymity, and the global reach of the Internet suggest very difficult, and new, ethical issues, as well as old problems in a new venue. We turn now to two access issues.
The Digital Divide
The divide in the United States is not just along economic lines, but also along race, age, and geographic lines. Seventy-six percent of white households are connected, but only 57 percent of African-American households; 75 percent of those under 65 use the Internet, but only about 50 percent of those 65 and older; and the lowest Internet usage is in Mississippi, Alabama, and Arkansas. Although nearly 98 percent of American households are located where broadband is available, 20 percent of American adults are not connected-not at home, at work, through public access points such as libraries, or through a smart phone. Availability of service is not the problem; the cost of connecting and digital literacy are. But presumptions about availability exacerbate the disadvantages of the unconnected, as job an nouncements and applications, public school homework assignments, government services information and applications, among many other things, migrate to the web.
An even greater access imbalance exists at the global level. For example, only 15.6 percent of Africa's citizens have access, compared with 78.6 percent in North America. Worldwide, it is estimated that just over one-third of the population is connected. But the number of connections is growing by less than 9 percent annually. As in the United States, one issue of access is availability, another is user cost, and another is training. But each of these issues is more intransigent outside of the United States. For example, only 24 percent of the population in sub-Saharan Africa has access to electricity. In most of these countries, the gross domestic product per capita is under $2,000. A group of seven well-known high-tech companies announced in 2013 the start of an Internet access project to address the two-thirds of the world's population that is on the other side of the divide, but it is too early to tell if significant improvement will result. [For current statistics on world Internet usage, see www.internetworldstats.com/stats.htm ]
Can you think of any imaginative ways to provide widespread Internet access in developing countries For one approach, watch the video at. http://www.ted.com/talks/aleph_molinari_let_s_bridge_the_digital_divide.html.
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13
As a consequence of this decision, is peer-to-peer technology now unlawful Explain.
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14
Review the materials on privacy issues in this chapter and then log on to the website for an Internet vendor that you, or someone you know, has used. Can you find the vendor's privacy policy Is it easy to find Is it easy to access, read, and understand How long is it How complicated Do any of its provisions surprise you What control do you have over the use of your personal information by that vendor Is that information easy to find Can you tell when the policy was last updated and what changes were made in it Has the policy received approval from TRUSTe.org (indicated by a seal displayed on the policy page) Would you purchase again from this vendor
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15
At this writing, more than a thousand new top-level domain names (TLDs) are just starting to go live. TLDs are the descriptors that follow the period in a Web address, such as.com.org, and gov. Up until 2014, there were 22 general TLDs and 280 country-specific ones. Some of the new TLDs will be written in Arabic, Chinese, and Russian scripts; others are likely to be company names, such as.google or.amazon; still others will be generic terms, such as.blog or.pizza. Successful registrants will have the right to sell second-level domains (the portion of the address that precedes the TLD). Thus, popular TLDs could also be very lucrative to their holders. Verisign, which currently manages the.com and.net TLDs, reported $874 million in 2012 revenues. ICANN accepted proposals from applicants for both open-use TLDs and restricted TLDs, the use of which the successful applicant might reserve solely for itself. L'Oreal is seeking the TLD.beauty and has stated that it would reserve some second-level domains, such as personal. beauty for itself. Amazon indicated that all of the TLDs for which it applied will be closed, for its use only. ICANN has indicated, however, that it has not yet determined whether to allow "closed generic domains." [For more on the new TLDs, see http://newgtlds.icann.org/en]
Donuts Inc. filed the most applications, 307, and paid $57 million for the privilege to do so. It was the only applicant for 149 of them. Some have expressed concern with Donuts Inc. as an appropriate registrant because of its alleged ties to Demand Media, "a company with a well-documented history of providing services to spammers and other perpetrators of Internet abuses." Demand Media has been a "host to sites that commit 'cybersquatting.'" Would you vote to allow Donuts Inc. to control over a hundred new TLDs Discuss.
Donuts Inc. filed the most applications, 307, and paid $57 million for the privilege to do so. It was the only applicant for 149 of them. Some have expressed concern with Donuts Inc. as an appropriate registrant because of its alleged ties to Demand Media, "a company with a well-documented history of providing services to spammers and other perpetrators of Internet abuses." Demand Media has been a "host to sites that commit 'cybersquatting.'" Would you vote to allow Donuts Inc. to control over a hundred new TLDs Discuss.
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16
In your opinion, should employers, police, and others who have been damaged by anonymous postings be able to obtain the identity of the poster from the hosting site or the poster's ISP Explain.
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17
PROCEDURAL HISTORY
[Defendant] La Ligue Contre Le Racisme Et L'Antisemitisme ("LICRA") [is a French nonprofit organization] dedicated to eliminating anti-Semitism. Plaintiff Yahoo!, Inc. ("Yahoo!") is a corporation organized under the laws of Delaware with its principal place of business in Santa Clara, California…. Yahoo! services ending in the suffix ".com," without an associated country code as a prefix or extension (collectively, "Yahooi's U.S. Services"), use the English language and target users who are residents of, utilize servers based in, and operate under the laws of the United States. Yahoo! subsidiary corporations operate regional Yahoo! sites and services in 20 other nations, including, for example, Yahoo! France, Yahoo! India, and Yahoo! Spain. Each of these regional websites contains the host nation's unique two-letter code as either a prefix or a suffix in its URL. Yahooi's regional sites use the local region's primary language, target the local citizenry, and operate under local laws.
Yahoo! provides a variety of means by which people from all over the world can communicate and interact with one another over the Internet-As relevant here, Yahooi's auction site allows anyone to post an item for sale and solicit bids from any computer user from around the globe. Yahoo! records when a posting is made and after the requisite time period lapses sends an e-mail notification to the highest bidder and seller with their respective contact information. Yahoo! is never a party to a transaction, and the buyer and seller are responsible for arranging privately for payment and shipment of goods. Yahoo! monitors the transaction through limited regulation by prohibiting particular items from being sold (such as stolen goods, body parts, prescription and illegal drugs, weapons, and goods violating U.S. copyright laws or the Iranian and Cuban embargos) Yahoo! informs auction sellers that they must comply with Yahooi's policies and may not offer items to buyers in jurisdictions in which the sale of such item violates the jurisdiction's applicable laws. Yahoo! does not actively regulate the content of each posting, and individuals are able to post, and have in fact posted, highly of fensive matter, including Nazi-related propaganda and Third Reich memorabilia, on Yahooi's auction sites.
On or about April 5, 2000, LICRA sent a "cease and desist" letter to Yahooi's Santa Clara headquarters informing Yahoo! that the sale of Nazi and Third Reich-related goods through its auction services violates French law. LICRA threatened to take legal action unless Yahoo! took steps to prevent such sales within eight days. Defendants subsequently utilized the United States Marshal's Office to serve Yahoo! with process in California and filed a civil complaint against Yahoo! in the Tribunal de Grande Instance de Paris (the "French Court").
The French Court found that approximately 1,000 Nazi and Third Reich-related objects, including Adolf Hitler's Mein Kampf, The Protocol of the Elders of Zion (an infamous anti- Semitic report produced by the Czarist secret police in the early 1900s), and purported "evidence" that the gas chambers of the Holocaust did not exist, were being offered for sale on Yahoo.com's auction site. Because any French citizen is able to access these materials on Yahoo.com directly or through a link on Yahoo.fr, the French Court concluded that the Yahoo.com auction site violates Section R645-1 of the French Criminal Code, which prohibits exhibition of Nazi propaganda and artifacts for sale. On May 20, 2000, the French Court entered an order requiring Yahoo! to (1) eliminate French citizens' access to any material on the Yahoo.com auction site that offers for sale any Nazi objects, relics, insignia, emblems, and flags; (2) eliminate French citizens' access to Web pages on Yahoo, com displaying text, extracts, or quotations from Mein Kampf and Protocol of the Elders of Zion;(3) post a warning to French citizens on Yahoo.fr that any search through Yahoo.com may lead to sites containing material prohibited by Section R645-1 of the French Criminal Code, and that such viewing of the prohibited material may result in legal action against the Internet user; (4) remove from all browser directories accessible in the French Republic index headings entitled "negationists" and from all hypertext links the equation of "negationists" under the heading "Holocaust." The order subjects Yahoo! to a penalty of 100,000 Euros for each day that it fails to comply with the order …..
The French Court also provided that penalties assessed against Yahoo! Inc. may not be collected from Yahoo! France. Defendants again utilized the United States Marshal's Office to serve Yahoo! in California with the French Order.
Yahoo! subsequently posted the required warning and prohibited postings in violation of Section R645-1 of the French Criminal Code from appearing on Yahoo.fr. Yahoo! also amended the auction policy ofYahoo.com to prohibit individuals from auctioning:
Any item that promotes, glorifies, or is directly associated with groups or individuals known principally for hateful or violent positions or acts, such as Nazis or the Ku Klux Klan. Official government-issue stamps and coins are not prohibited under this policy. Expressive media, such as books and films, may be subject to more permissive standards as determined by Yahoo! in its sole discretion.
Notwithstanding these actions, the Yahoo.com auction site still offers certain items for sale (such as stamps, coins, and a copy of Mein Kampf) which appear to violate the French Order....
Yahoo! claims that because it lacks the technology to block French citizens from accessing the Yahoo.com auction site to view materials which violate the French order or from accessing other Nazi-based content of websites on Yahoo, com, it cannot comply with the French order without banning Nazi-related material from Yahoo.com altogether. Yahoo! contends that such a ban would infringe impermissibly upon its rights under the First Amendment to the United States Constitution. Accordingly, Yahoo! filed a complaint in this Court seeking a declaratory judgment that the French Court's orders are neither cognizable nor enforceable under the laws of the United States.
Defendants immediately moved to dismiss on the basis that this Court lacks personal jurisdiction over them. That motion was denied....
II. OVERVIEW
As this Court and others have observed, the instant case presents novel and important issues arising from the global reach of the Internet. Indeed, the specific facts of this case implicate issues of policy, politics, and culture that are beyond the purview of one nation's judiciary. Thus it is critical that the Court define at the outset what is and is not at stake in the present proceeding.
This case is not about the moral acceptability of promoting the symbols or propaganda of Nazism. Most would agree that such acts are profoundly offensive. By any reasonable standard of morality, the Nazis were responsible for one of the worst displays of inhumanity in recorded history….
Nor is this case about the right of France or any other nation to determine its own law and social policies. A basic function of a sovereign state is to determine by law what forms of speech and conduct are acceptable within its borders….
What is at issue here is whether it is consistent with the Constitution and laws of the United States for another nation to regulate speech by a United States resident within the United States on the basis that such speech can be accessed by Internet users in that nation. In a world in which ideas and information transcend borders and the Internet in particular renders the physical distance between speaker and audience virtually meaningless, the implications of this question go far beyond the facts of this case. The modern world is home to widely varied cultures with radically divergent value systems. There is little doubt that Internet users in the United States routinely engage in speech that violates, for example, China's laws against religious expression, the laws of various nations against advocacy of gender equality or homosexuality, or even the United Kingdom's restrictions on freedom of the press.
The French order prohibits the sale or display of items based on their association with a particular political organization and bans the display of websites based on the authors' viewpoint with respect to the Holocaust and anti-Semitism. A United States court constitutionally could not make such an order. The First Amendment does not permit the government to engage in viewpoint-based regulation of speech absent a compelling governmental interest, such as averting a clear and present danger of imminent violence.
Comity
No legal judgment has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived…. The extent to which the United States, or any state, honors the judicial decrees of foreign nations is a matter of choice, governed by "the comity of nations." United States courts generally recognize foreign judgments and decrees unless enforcement would be prejudicial or contrary to the country's interests.
As discussed previously, the French order's content and viewpoint-based regulation of the Web pages and auction site on Yahoo.com, while entitled to great deference as an articulation of French law, clearly would be inconsistent with the First Amendment if mandated by a court in the United States….
The reason for limiting comity in this area is sound. "The protection to free speech and the press embodied in [the First] amendment would be seriously jeopardized by the entry of foreign judgments granted pursuant to standards deemed appropriate in [another country] but considered antithetical to the protections afforded the press by the U.S. Constitution." Absent a body of law that establishes international standards with respect to speech on the Internet and an appropriate treaty or legislation addressing enforcement of such standards to speech originating within the United States, the principle of comity is outweighed by the Court's obligation to uphold the First Amendment.
CONCLUSION
Yahoo! seeks a declaration from this Court that the First Amendment precludes enforcement within the United States of a French order intended to regulate the content of its speech over the Internet…. Accordingly, the motion for summary judgment will be granted.
AFTERWORD
On appeal in 2006 the Ninth Circuit Court of Appeals ruled by a vote of eight to three that the California district court had personal jurisdiction over the French defendants, but six judges also held that Yahoo! could not pursue its declaratory judgment action. Three of those six said the declaratory judgment action was not "ripe" for decision, while the other three were the minority that held that the court had no personal jurisdiction. The Supreme Court declined to review the decision.
Notice the Court's conclusion that the principle of comity is outweighed by its constitutional obligation to uphold the freedom of speech. Is this approach to the requirements of comity consistent with the discussion of comity in Chapter 16?
[Defendant] La Ligue Contre Le Racisme Et L'Antisemitisme ("LICRA") [is a French nonprofit organization] dedicated to eliminating anti-Semitism. Plaintiff Yahoo!, Inc. ("Yahoo!") is a corporation organized under the laws of Delaware with its principal place of business in Santa Clara, California…. Yahoo! services ending in the suffix ".com," without an associated country code as a prefix or extension (collectively, "Yahooi's U.S. Services"), use the English language and target users who are residents of, utilize servers based in, and operate under the laws of the United States. Yahoo! subsidiary corporations operate regional Yahoo! sites and services in 20 other nations, including, for example, Yahoo! France, Yahoo! India, and Yahoo! Spain. Each of these regional websites contains the host nation's unique two-letter code as either a prefix or a suffix in its URL. Yahooi's regional sites use the local region's primary language, target the local citizenry, and operate under local laws.
Yahoo! provides a variety of means by which people from all over the world can communicate and interact with one another over the Internet-As relevant here, Yahooi's auction site allows anyone to post an item for sale and solicit bids from any computer user from around the globe. Yahoo! records when a posting is made and after the requisite time period lapses sends an e-mail notification to the highest bidder and seller with their respective contact information. Yahoo! is never a party to a transaction, and the buyer and seller are responsible for arranging privately for payment and shipment of goods. Yahoo! monitors the transaction through limited regulation by prohibiting particular items from being sold (such as stolen goods, body parts, prescription and illegal drugs, weapons, and goods violating U.S. copyright laws or the Iranian and Cuban embargos) Yahoo! informs auction sellers that they must comply with Yahooi's policies and may not offer items to buyers in jurisdictions in which the sale of such item violates the jurisdiction's applicable laws. Yahoo! does not actively regulate the content of each posting, and individuals are able to post, and have in fact posted, highly of fensive matter, including Nazi-related propaganda and Third Reich memorabilia, on Yahooi's auction sites.
On or about April 5, 2000, LICRA sent a "cease and desist" letter to Yahooi's Santa Clara headquarters informing Yahoo! that the sale of Nazi and Third Reich-related goods through its auction services violates French law. LICRA threatened to take legal action unless Yahoo! took steps to prevent such sales within eight days. Defendants subsequently utilized the United States Marshal's Office to serve Yahoo! with process in California and filed a civil complaint against Yahoo! in the Tribunal de Grande Instance de Paris (the "French Court").
The French Court found that approximately 1,000 Nazi and Third Reich-related objects, including Adolf Hitler's Mein Kampf, The Protocol of the Elders of Zion (an infamous anti- Semitic report produced by the Czarist secret police in the early 1900s), and purported "evidence" that the gas chambers of the Holocaust did not exist, were being offered for sale on Yahoo.com's auction site. Because any French citizen is able to access these materials on Yahoo.com directly or through a link on Yahoo.fr, the French Court concluded that the Yahoo.com auction site violates Section R645-1 of the French Criminal Code, which prohibits exhibition of Nazi propaganda and artifacts for sale. On May 20, 2000, the French Court entered an order requiring Yahoo! to (1) eliminate French citizens' access to any material on the Yahoo.com auction site that offers for sale any Nazi objects, relics, insignia, emblems, and flags; (2) eliminate French citizens' access to Web pages on Yahoo, com displaying text, extracts, or quotations from Mein Kampf and Protocol of the Elders of Zion;(3) post a warning to French citizens on Yahoo.fr that any search through Yahoo.com may lead to sites containing material prohibited by Section R645-1 of the French Criminal Code, and that such viewing of the prohibited material may result in legal action against the Internet user; (4) remove from all browser directories accessible in the French Republic index headings entitled "negationists" and from all hypertext links the equation of "negationists" under the heading "Holocaust." The order subjects Yahoo! to a penalty of 100,000 Euros for each day that it fails to comply with the order …..
The French Court also provided that penalties assessed against Yahoo! Inc. may not be collected from Yahoo! France. Defendants again utilized the United States Marshal's Office to serve Yahoo! in California with the French Order.
Yahoo! subsequently posted the required warning and prohibited postings in violation of Section R645-1 of the French Criminal Code from appearing on Yahoo.fr. Yahoo! also amended the auction policy ofYahoo.com to prohibit individuals from auctioning:
Any item that promotes, glorifies, or is directly associated with groups or individuals known principally for hateful or violent positions or acts, such as Nazis or the Ku Klux Klan. Official government-issue stamps and coins are not prohibited under this policy. Expressive media, such as books and films, may be subject to more permissive standards as determined by Yahoo! in its sole discretion.
Notwithstanding these actions, the Yahoo.com auction site still offers certain items for sale (such as stamps, coins, and a copy of Mein Kampf) which appear to violate the French Order....
Yahoo! claims that because it lacks the technology to block French citizens from accessing the Yahoo.com auction site to view materials which violate the French order or from accessing other Nazi-based content of websites on Yahoo, com, it cannot comply with the French order without banning Nazi-related material from Yahoo.com altogether. Yahoo! contends that such a ban would infringe impermissibly upon its rights under the First Amendment to the United States Constitution. Accordingly, Yahoo! filed a complaint in this Court seeking a declaratory judgment that the French Court's orders are neither cognizable nor enforceable under the laws of the United States.
Defendants immediately moved to dismiss on the basis that this Court lacks personal jurisdiction over them. That motion was denied....
II. OVERVIEW
As this Court and others have observed, the instant case presents novel and important issues arising from the global reach of the Internet. Indeed, the specific facts of this case implicate issues of policy, politics, and culture that are beyond the purview of one nation's judiciary. Thus it is critical that the Court define at the outset what is and is not at stake in the present proceeding.
This case is not about the moral acceptability of promoting the symbols or propaganda of Nazism. Most would agree that such acts are profoundly offensive. By any reasonable standard of morality, the Nazis were responsible for one of the worst displays of inhumanity in recorded history….
Nor is this case about the right of France or any other nation to determine its own law and social policies. A basic function of a sovereign state is to determine by law what forms of speech and conduct are acceptable within its borders….
What is at issue here is whether it is consistent with the Constitution and laws of the United States for another nation to regulate speech by a United States resident within the United States on the basis that such speech can be accessed by Internet users in that nation. In a world in which ideas and information transcend borders and the Internet in particular renders the physical distance between speaker and audience virtually meaningless, the implications of this question go far beyond the facts of this case. The modern world is home to widely varied cultures with radically divergent value systems. There is little doubt that Internet users in the United States routinely engage in speech that violates, for example, China's laws against religious expression, the laws of various nations against advocacy of gender equality or homosexuality, or even the United Kingdom's restrictions on freedom of the press.
The French order prohibits the sale or display of items based on their association with a particular political organization and bans the display of websites based on the authors' viewpoint with respect to the Holocaust and anti-Semitism. A United States court constitutionally could not make such an order. The First Amendment does not permit the government to engage in viewpoint-based regulation of speech absent a compelling governmental interest, such as averting a clear and present danger of imminent violence.
Comity
No legal judgment has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived…. The extent to which the United States, or any state, honors the judicial decrees of foreign nations is a matter of choice, governed by "the comity of nations." United States courts generally recognize foreign judgments and decrees unless enforcement would be prejudicial or contrary to the country's interests.
As discussed previously, the French order's content and viewpoint-based regulation of the Web pages and auction site on Yahoo.com, while entitled to great deference as an articulation of French law, clearly would be inconsistent with the First Amendment if mandated by a court in the United States….
The reason for limiting comity in this area is sound. "The protection to free speech and the press embodied in [the First] amendment would be seriously jeopardized by the entry of foreign judgments granted pursuant to standards deemed appropriate in [another country] but considered antithetical to the protections afforded the press by the U.S. Constitution." Absent a body of law that establishes international standards with respect to speech on the Internet and an appropriate treaty or legislation addressing enforcement of such standards to speech originating within the United States, the principle of comity is outweighed by the Court's obligation to uphold the First Amendment.
CONCLUSION
Yahoo! seeks a declaration from this Court that the First Amendment precludes enforcement within the United States of a French order intended to regulate the content of its speech over the Internet…. Accordingly, the motion for summary judgment will be granted.
AFTERWORD
On appeal in 2006 the Ninth Circuit Court of Appeals ruled by a vote of eight to three that the California district court had personal jurisdiction over the French defendants, but six judges also held that Yahoo! could not pursue its declaratory judgment action. Three of those six said the declaratory judgment action was not "ripe" for decision, while the other three were the minority that held that the court had no personal jurisdiction. The Supreme Court declined to review the decision.
Notice the Court's conclusion that the principle of comity is outweighed by its constitutional obligation to uphold the freedom of speech. Is this approach to the requirements of comity consistent with the discussion of comity in Chapter 16?
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18
a. Explain how the Court was able to hold software distributors like Grokster liable for the misconduct of others (those who actually used the peer-to-peer networks to download copyrighted materials).
b. What does the Court mean by "contributory" and "vicarious" copyright infringement
c. Why did the Supreme Court overrule the Court of Appeals decision
b. What does the Court mean by "contributory" and "vicarious" copyright infringement
c. Why did the Supreme Court overrule the Court of Appeals decision
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19
Are online bloggers (that is, authors of topical Web logs) entitled to protection as journalists under the First Amendment with regard to the confidentiality of their sources What if those sources have illegally revealed corporate trade secrets 82
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20
Explain why employers might want to monitor their employees' computer activities.
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In your judgment do Grokster and other peer-to-peer software distributors have a moral responsibility regarding the unlawful use of their products by third parties Explain.
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22
Privacy Policies: Did Someone Say Privacy
These days an online merchant is likely to have a privacy policy posted on its site that de-scribes, among other things, what data it collects and how they are used. For example, Amazon.com's Privacy Notice states "Information about our customers is an important part of our business, and we are not in the business of selling it to others."4' The information it automatically collects includes "login; e-mail address; password; computer and connection information such as browser type, version, and time-zone setting, browser plug-in types and versions, operating system, and platform; purchase history...; the full Uniform Resource Locator (URL) clickstream to, through, and from our website, including date and time; cookie number; [and] products you viewed or searched for." It also receives information such as "account information, purchase or redemption information, and page-view information from some merchants with which we operate co-branded businesses." A partial list of such businesses includes "Starbucks, OfficeMax, American Apparel, Verizon Wireless, Sprint, T-Mobile, AT T, J R Electronics, PacSun, Eddie Bauer and Northern Tool + Equipment." The Notice further acknowledges that its site includes third-party advertising and links to other websites. It then states, "We do not have access to or control over cookies' or other features that advertisers and third party sites may use, and the information practices of these advertisers and third-party websites are not covered by our Privacy Notice."
Having read the materials in this section on data mining, pause and think now about the vast amount of personal data you now know is compiled and stored by various entities-Internet vendors, social media sites, and aggregators, but also phone companies and such traditional institutions such as banks and employers. Now consider the ramifications of the fact that anything stored can likely be stolen. For example, Google is one of the strongest, most technically sophisticated Internet companies in the world, but even it cannot prevent covert cyberattacks on its systems. Neither can Facebook, Apple, Twitter, Yahoo!, Linkedln, Bloomberg, the International Monetary Fund, the FBI or the Pentagon, all of which have acknowledged that their systems have suffered successful attacks. Indeed, the opening lines of a recent New York Times article were, "The question is no longer who has been hacked. It's who hasn't " t8
Question
How would you rate the privacy protections available to individuals who purchase items through Amazon.com How safe are similar data of individuals who have never purchased an item through Amazon.com
These days an online merchant is likely to have a privacy policy posted on its site that de-scribes, among other things, what data it collects and how they are used. For example, Amazon.com's Privacy Notice states "Information about our customers is an important part of our business, and we are not in the business of selling it to others."4' The information it automatically collects includes "login; e-mail address; password; computer and connection information such as browser type, version, and time-zone setting, browser plug-in types and versions, operating system, and platform; purchase history...; the full Uniform Resource Locator (URL) clickstream to, through, and from our website, including date and time; cookie number; [and] products you viewed or searched for." It also receives information such as "account information, purchase or redemption information, and page-view information from some merchants with which we operate co-branded businesses." A partial list of such businesses includes "Starbucks, OfficeMax, American Apparel, Verizon Wireless, Sprint, T-Mobile, AT T, J R Electronics, PacSun, Eddie Bauer and Northern Tool + Equipment." The Notice further acknowledges that its site includes third-party advertising and links to other websites. It then states, "We do not have access to or control over cookies' or other features that advertisers and third party sites may use, and the information practices of these advertisers and third-party websites are not covered by our Privacy Notice."
Having read the materials in this section on data mining, pause and think now about the vast amount of personal data you now know is compiled and stored by various entities-Internet vendors, social media sites, and aggregators, but also phone companies and such traditional institutions such as banks and employers. Now consider the ramifications of the fact that anything stored can likely be stolen. For example, Google is one of the strongest, most technically sophisticated Internet companies in the world, but even it cannot prevent covert cyberattacks on its systems. Neither can Facebook, Apple, Twitter, Yahoo!, Linkedln, Bloomberg, the International Monetary Fund, the FBI or the Pentagon, all of which have acknowledged that their systems have suffered successful attacks. Indeed, the opening lines of a recent New York Times article were, "The question is no longer who has been hacked. It's who hasn't " t8
Question
How would you rate the privacy protections available to individuals who purchase items through Amazon.com How safe are similar data of individuals who have never purchased an item through Amazon.com
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23
At this writing, more than a thousand new top-level domain names (TLDs) are just starting to go live. TLDs are the descriptors that follow the period in a Web address, such as.com.org, and gov. Up until 2014, there were 22 general TLDs and 280 country-specific ones. Some of the new TLDs will be written in Arabic, Chinese, and Russian scripts; others are likely to be company names, such as.google or.amazon; still others will be generic terms, such as.blog or.pizza. Successful registrants will have the right to sell second-level domains (the portion of the address that precedes the TLD). Thus, popular TLDs could also be very lucrative to their holders. Verisign, which currently manages the.com and.net TLDs, reported $874 million in 2012 revenues. ICANN accepted proposals from applicants for both open-use TLDs and restricted TLDs, the use of which the successful applicant might reserve solely for itself. L'Oreal is seeking the TLD.beauty and has stated that it would reserve some second-level domains, such as personal. beauty for itself. Amazon indicated that all of the TLDs for which it applied will be closed, for its use only. ICANN has indicated, however, that it has not yet determined whether to allow "closed generic domains." [For more on the new TLDs, see http://newgtlds.icann.org/en]
As stated above, Donuts Inc. applied for 307 TLDs. Google applied for 101 TLDs; Amazon for 76. Should one entity be permitted to control that many TLDs Is it anticompetitive to give control over generic TLDs to private companies Discuss.
As stated above, Donuts Inc. applied for 307 TLDs. Google applied for 101 TLDs; Amazon for 76. Should one entity be permitted to control that many TLDs Is it anticompetitive to give control over generic TLDs to private companies Discuss.
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24
At this writing, more than a thousand new top-level domain names (TLDs) are just starting to go live. TLDs are the descriptors that follow the period in a Web address, such as.com.org, and gov. Up until 2014, there were 22 general TLDs and 280 country-specific ones. Some of the new TLDs will be written in Arabic, Chinese, and Russian scripts; others are likely to be company names, such as.google or.amazon; still others will be generic terms, such as.blog or.pizza. Successful registrants will have the right to sell second-level domains (the portion of the address that precedes the TLD). Thus, popular TLDs could also be very lucrative to their holders. Verisign, which currently manages the.com and.net TLDs, reported $874 million in 2012 revenues. ICANN accepted proposals from applicants for both open-use TLDs and restricted TLDs, the use of which the successful applicant might reserve solely for itself. L'Oreal is seeking the TLD.beauty and has stated that it would reserve some second-level domains, such as personal. beauty for itself. Amazon indicated that all of the TLDs for which it applied will be closed, for its use only. ICANN has indicated, however, that it has not yet determined whether to allow "closed generic domains." [For more on the new TLDs, see http://newgtlds.icann.org/en]
If you were a member of ICANN, who would you vote to give the TLD of.amazon to-Amazon.com or the consortium of Latin American countries through which the Amazon River runs Would you agree to the creation of such TLDs as.Jew,.Christian,.Muslim,.Baha'i,.Moses,.Jesus, and.Mohamad Explain. Should community, cultural, historical interests-such as the use of a name-be in control of commercial interests and individual companies Discuss.
If you were a member of ICANN, who would you vote to give the TLD of.amazon to-Amazon.com or the consortium of Latin American countries through which the Amazon River runs Would you agree to the creation of such TLDs as.Jew,.Christian,.Muslim,.Baha'i,.Moses,.Jesus, and.Mohamad Explain. Should community, cultural, historical interests-such as the use of a name-be in control of commercial interests and individual companies Discuss.
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25
America Online (AOL), an Internet service provider, sued TSF Marketing and Joseph Melle, who founded TSF. AOL claimed that Melle and TSF sent unauthorized bulk e-mail advertisements (spam) to AOL subscribers. The e-mail contained the letters "aol.com" in the headers. AOL claimed that the e-mail totaled some 60 million messages over a 10-month period. Melle allegedly continued the mailings after he was notified in writing by AOL to stop. AOL received over 50,000 complaints from subscribers. AOL claimed, among other things, that Melle had diluted its trademark. 83 The case arose before the passage of the CAN-SPAM Act. Would Melle have been liable under that Act Explain.
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26
PROCEDURAL HISTORY
[Defendant] La Ligue Contre Le Racisme Et L'Antisemitisme ("LICRA") [is a French nonprofit organization] dedicated to eliminating anti-Semitism. Plaintiff Yahoo!, Inc. ("Yahoo!") is a corporation organized under the laws of Delaware with its principal place of business in Santa Clara, California…. Yahoo! services ending in the suffix ".com," without an associated country code as a prefix or extension (collectively, "Yahooi's U.S. Services"), use the English language and target users who are residents of, utilize servers based in, and operate under the laws of the United States. Yahoo! subsidiary corporations operate regional Yahoo! sites and services in 20 other nations, including, for example, Yahoo! France, Yahoo! India, and Yahoo! Spain. Each of these regional websites contains the host nation's unique two-letter code as either a prefix or a suffix in its URL. Yahooi's regional sites use the local region's primary language, target the local citizenry, and operate under local laws.
Yahoo! provides a variety of means by which people from all over the world can communicate and interact with one another over the Internet.... As relevant here, Yahooi's auction site allows anyone to post an item for sale and solicit bids from any computer user from around the globe. Yahoo! records when a posting is made and after the requisite time period lapses sends an e-mail notification to the highest bidder and seller with their respective contact information. Yahoo! is never a party to a transaction, and the buyer and seller are responsible for arranging privately for payment and shipment of goods. Yahoo! monitors the transaction through limited regulation by prohibiting particular items from being sold (such as stolen goods, body parts, prescription and illegal drugs, weapons, and goods violating U.S. copyright laws or the Iranian and Cuban embargos) Yahoo! informs auction sellers that they must comply with Yahooi's policies and may not offer items to buyers in jurisdictions in which the sale of such item violates the jurisdiction's applicable laws. Yahoo! does not actively regulate the content of each posting, and individuals are able to post, and have in fact posted, highly of fensive matter, including Nazi-related propaganda and Third Reich memorabilia, on Yahooi's auction sites.
On or about April 5, 2000, LICRA sent a "cease and desist" letter to Yahooi's Santa Clara headquarters informing Yahoo! that the sale of Nazi and Third Reich-related goods through its auction services violates French law. LICRA threatened to take legal action unless Yahoo! took steps to prevent such sales within eight days. Defendants subsequently utilized the United States Marshal's Office to serve Yahoo! with process in California and filed a civil complaint against Yahoo! in the Tribunal de Grande Instance de Paris (the "French Court").
The French Court found that approximately 1,000 Nazi and Third Reich-related objects, including Adolf Hitler's Mein Kampf, The Protocol of the Elders of Zion (an infamous anti- Semitic report produced by the Czarist secret police in the early 1900s), and purported "evidence" that the gas chambers of the Holocaust did not exist, were being offered for sale on Yahoo.com's auction site. Because any French citizen is able to access these materials on Yahoo.com directly or through a link on Yahoo.fr, the French Court concluded that the Yahoo.com auction site violates Section R645-1 of the French Criminal Code, which prohibits exhibition of Nazi propaganda and artifacts for sale. On May 20, 2000, the French Court entered an order requiring Yahoo! to (1) eliminate French citizens' access to any material on the Yahoo.com auction site that offers for sale any Nazi objects, relics, insignia, emblems, and flags; (2) eliminate French citizens' access to Web pages on Yahoo, com displaying text, extracts, or quotations from Mein Kampf and Protocol of the Elders of Zion;(3) post a warning to French citizens on Yahoo.fr that any search through Yahoo.com may lead to sites containing material prohibited by Section R645-1 of the French Criminal Code, and that such viewing of the prohibited material may result in legal action against the Internet user; (4) remove from all browser directories accessible in the French Republic index headings entitled "negationists" and from all hypertext links the equation of "negationists" under the heading "Holocaust." The order subjects Yahoo! to a penalty of 100,000 Euros for each day that it fails to comply with the order …..
The French Court also provided that penalties assessed against Yahoo! Inc. may not be collected from Yahoo! France. Defendants again utilized the United States Marshal's Office to serve Yahoo! in California with the French Order.
Yahoo! subsequently posted the required warning and prohibited postings in violation of Section R645-1 of the French Criminal Code from appearing on Yahoo.fr. Yahoo! also amended the auction policy ofYahoo.com to prohibit individuals from auctioning:
Any item that promotes, glorifies, or is directly associated with groups or individuals known principally for hateful or violent positions or acts, such as Nazis or the Ku Klux Klan. Official government-issue stamps and coins are not prohibited under this policy. Expressive media, such as books and films, may be subject to more permissive standards as determined by Yahoo! in its sole discretion.
Notwithstanding these actions, the Yahoo.com auction site still offers certain items for sale (such as stamps, coins, and a copy of Mein Kampf) which appear to violate the French Order....
Yahoo! claims that because it lacks the technology to block French citizens from accessing the Yahoo.com auction site to view materials which violate the French order or from accessing other Nazi-based content of websites on Yahoo, com, it cannot comply with the French order without banning Nazi-related material from Yahoo.com altogether. Yahoo! contends that such a ban would infringe impermissibly upon its rights under the First Amendment to the United States Constitution. Accordingly, Yahoo! filed a complaint in this Court seeking a declaratory judgment that the French Court's orders are neither cognizable nor enforceable under the laws of the United States.
Defendants immediately moved to dismiss on the basis that this Court lacks personal jurisdiction over them. That motion was denied....
II. OVERVIEW
As this Court and others have observed, the instant case presents novel and important issues arising from the global reach of the Internet. Indeed, the specific facts of this case implicate issues of policy, politics, and culture that are beyond the purview of one nation's judiciary. Thus it is critical that the Court define at the outset what is and is not at stake in the present proceeding.
This case is not about the moral acceptability of promoting the symbols or propaganda of Nazism. Most would agree that such acts are profoundly offensive. By any reasonable standard of morality, the Nazis were responsible for one of the worst displays of inhumanity in recorded history….
Nor is this case about the right of France or any other nation to determine its own law and social policies. A basic function of a sovereign state is to determine by law what forms of speech and conduct are acceptable within its borders….
What is at issue here is whether it is consistent with the Constitution and laws of the United States for another nation to regulate speech by a United States resident within the United States on the basis that such speech can be accessed by Internet users in that nation. In a world in which ideas and information transcend borders and the Internet in particular renders the physical distance between speaker and audience virtually meaningless, the implications of this question go far beyond the facts of this case. The modern world is home to widely varied cultures with radically divergent value systems. There is little doubt that Internet users in the United States routinely engage in speech that violates, for example, China's laws against religious expression, the laws of various nations against advocacy of gender equality or homosexuality, or even the United Kingdom's restrictions on freedom of the press.
The French order prohibits the sale or display of items based on their association with a particular political organization and bans the display of websites based on the authors' viewpoint with respect to the Holocaust and anti-Semitism. A United States court constitutionally could not make such an order. The First Amendment does not permit the government to engage in viewpoint-based regulation of speech absent a compelling governmental interest, such as averting a clear and present danger of imminent violence.
Comity
No legal judgment has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived…. The extent to which the United States, or any state, honors the judicial decrees of foreign nations is a matter of choice, governed by "the comity of nations." United States courts generally recognize foreign judgments and decrees unless enforcement would be prejudicial or contrary to the country's interests.
As discussed previously, the French order's content and viewpoint-based regulation of the Web pages and auction site on Yahoo.com, while entitled to great deference as an articulation of French law, clearly would be inconsistent with the First Amendment if mandated by a court in the United States….
The reason for limiting comity in this area is sound. "The protection to free speech and the press embodied in [the First] amendment would be seriously jeopardized by the entry of foreign judgments granted pursuant to standards deemed appropriate in [another country] but considered antithetical to the protections afforded the press by the U.S. Constitution." Absent a body of law that establishes international standards with respect to speech on the Internet and an appropriate treaty or legislation addressing enforcement of such standards to speech originating within the United States, the principle of comity is outweighed by the Court's obligation to uphold the First Amendment.
CONCLUSION
Yahoo! seeks a declaration from this Court that the First Amendment precludes enforcement within the United States of a French order intended to regulate the content of its speech over the Internet…. Accordingly, the motion for summary judgment will be granted.
AFTERWORD
On appeal in 2006 the Ninth Circuit Court of Appeals ruled by a vote of eight to three that the California district court had personal jurisdiction over the French defendants, but six judges also held that Yahoo! could not pursue its declaratory judgment action. Three of those six said the declaratory judgment action was not "ripe" for decision, while the other three were the minority that held that the court had no personal jurisdiction. The Supreme Court declined to review the decision.
We cannot tell from this opinion why the French court believed it had jurisdiction to adjudicate against Yahoo!, as opposed to Yahoo! France. Look back at the discussion of the Restatement (Third) of Foreign Relations Law immediately before this case. Why might the French court have had jurisdiction over Yahoo! France? Over Yahoo!?
[Defendant] La Ligue Contre Le Racisme Et L'Antisemitisme ("LICRA") [is a French nonprofit organization] dedicated to eliminating anti-Semitism. Plaintiff Yahoo!, Inc. ("Yahoo!") is a corporation organized under the laws of Delaware with its principal place of business in Santa Clara, California…. Yahoo! services ending in the suffix ".com," without an associated country code as a prefix or extension (collectively, "Yahooi's U.S. Services"), use the English language and target users who are residents of, utilize servers based in, and operate under the laws of the United States. Yahoo! subsidiary corporations operate regional Yahoo! sites and services in 20 other nations, including, for example, Yahoo! France, Yahoo! India, and Yahoo! Spain. Each of these regional websites contains the host nation's unique two-letter code as either a prefix or a suffix in its URL. Yahooi's regional sites use the local region's primary language, target the local citizenry, and operate under local laws.
Yahoo! provides a variety of means by which people from all over the world can communicate and interact with one another over the Internet.... As relevant here, Yahooi's auction site allows anyone to post an item for sale and solicit bids from any computer user from around the globe. Yahoo! records when a posting is made and after the requisite time period lapses sends an e-mail notification to the highest bidder and seller with their respective contact information. Yahoo! is never a party to a transaction, and the buyer and seller are responsible for arranging privately for payment and shipment of goods. Yahoo! monitors the transaction through limited regulation by prohibiting particular items from being sold (such as stolen goods, body parts, prescription and illegal drugs, weapons, and goods violating U.S. copyright laws or the Iranian and Cuban embargos) Yahoo! informs auction sellers that they must comply with Yahooi's policies and may not offer items to buyers in jurisdictions in which the sale of such item violates the jurisdiction's applicable laws. Yahoo! does not actively regulate the content of each posting, and individuals are able to post, and have in fact posted, highly of fensive matter, including Nazi-related propaganda and Third Reich memorabilia, on Yahooi's auction sites.
On or about April 5, 2000, LICRA sent a "cease and desist" letter to Yahooi's Santa Clara headquarters informing Yahoo! that the sale of Nazi and Third Reich-related goods through its auction services violates French law. LICRA threatened to take legal action unless Yahoo! took steps to prevent such sales within eight days. Defendants subsequently utilized the United States Marshal's Office to serve Yahoo! with process in California and filed a civil complaint against Yahoo! in the Tribunal de Grande Instance de Paris (the "French Court").
The French Court found that approximately 1,000 Nazi and Third Reich-related objects, including Adolf Hitler's Mein Kampf, The Protocol of the Elders of Zion (an infamous anti- Semitic report produced by the Czarist secret police in the early 1900s), and purported "evidence" that the gas chambers of the Holocaust did not exist, were being offered for sale on Yahoo.com's auction site. Because any French citizen is able to access these materials on Yahoo.com directly or through a link on Yahoo.fr, the French Court concluded that the Yahoo.com auction site violates Section R645-1 of the French Criminal Code, which prohibits exhibition of Nazi propaganda and artifacts for sale. On May 20, 2000, the French Court entered an order requiring Yahoo! to (1) eliminate French citizens' access to any material on the Yahoo.com auction site that offers for sale any Nazi objects, relics, insignia, emblems, and flags; (2) eliminate French citizens' access to Web pages on Yahoo, com displaying text, extracts, or quotations from Mein Kampf and Protocol of the Elders of Zion;(3) post a warning to French citizens on Yahoo.fr that any search through Yahoo.com may lead to sites containing material prohibited by Section R645-1 of the French Criminal Code, and that such viewing of the prohibited material may result in legal action against the Internet user; (4) remove from all browser directories accessible in the French Republic index headings entitled "negationists" and from all hypertext links the equation of "negationists" under the heading "Holocaust." The order subjects Yahoo! to a penalty of 100,000 Euros for each day that it fails to comply with the order …..
The French Court also provided that penalties assessed against Yahoo! Inc. may not be collected from Yahoo! France. Defendants again utilized the United States Marshal's Office to serve Yahoo! in California with the French Order.
Yahoo! subsequently posted the required warning and prohibited postings in violation of Section R645-1 of the French Criminal Code from appearing on Yahoo.fr. Yahoo! also amended the auction policy ofYahoo.com to prohibit individuals from auctioning:
Any item that promotes, glorifies, or is directly associated with groups or individuals known principally for hateful or violent positions or acts, such as Nazis or the Ku Klux Klan. Official government-issue stamps and coins are not prohibited under this policy. Expressive media, such as books and films, may be subject to more permissive standards as determined by Yahoo! in its sole discretion.
Notwithstanding these actions, the Yahoo.com auction site still offers certain items for sale (such as stamps, coins, and a copy of Mein Kampf) which appear to violate the French Order....
Yahoo! claims that because it lacks the technology to block French citizens from accessing the Yahoo.com auction site to view materials which violate the French order or from accessing other Nazi-based content of websites on Yahoo, com, it cannot comply with the French order without banning Nazi-related material from Yahoo.com altogether. Yahoo! contends that such a ban would infringe impermissibly upon its rights under the First Amendment to the United States Constitution. Accordingly, Yahoo! filed a complaint in this Court seeking a declaratory judgment that the French Court's orders are neither cognizable nor enforceable under the laws of the United States.
Defendants immediately moved to dismiss on the basis that this Court lacks personal jurisdiction over them. That motion was denied....
II. OVERVIEW
As this Court and others have observed, the instant case presents novel and important issues arising from the global reach of the Internet. Indeed, the specific facts of this case implicate issues of policy, politics, and culture that are beyond the purview of one nation's judiciary. Thus it is critical that the Court define at the outset what is and is not at stake in the present proceeding.
This case is not about the moral acceptability of promoting the symbols or propaganda of Nazism. Most would agree that such acts are profoundly offensive. By any reasonable standard of morality, the Nazis were responsible for one of the worst displays of inhumanity in recorded history….
Nor is this case about the right of France or any other nation to determine its own law and social policies. A basic function of a sovereign state is to determine by law what forms of speech and conduct are acceptable within its borders….
What is at issue here is whether it is consistent with the Constitution and laws of the United States for another nation to regulate speech by a United States resident within the United States on the basis that such speech can be accessed by Internet users in that nation. In a world in which ideas and information transcend borders and the Internet in particular renders the physical distance between speaker and audience virtually meaningless, the implications of this question go far beyond the facts of this case. The modern world is home to widely varied cultures with radically divergent value systems. There is little doubt that Internet users in the United States routinely engage in speech that violates, for example, China's laws against religious expression, the laws of various nations against advocacy of gender equality or homosexuality, or even the United Kingdom's restrictions on freedom of the press.
The French order prohibits the sale or display of items based on their association with a particular political organization and bans the display of websites based on the authors' viewpoint with respect to the Holocaust and anti-Semitism. A United States court constitutionally could not make such an order. The First Amendment does not permit the government to engage in viewpoint-based regulation of speech absent a compelling governmental interest, such as averting a clear and present danger of imminent violence.
Comity
No legal judgment has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived…. The extent to which the United States, or any state, honors the judicial decrees of foreign nations is a matter of choice, governed by "the comity of nations." United States courts generally recognize foreign judgments and decrees unless enforcement would be prejudicial or contrary to the country's interests.
As discussed previously, the French order's content and viewpoint-based regulation of the Web pages and auction site on Yahoo.com, while entitled to great deference as an articulation of French law, clearly would be inconsistent with the First Amendment if mandated by a court in the United States….
The reason for limiting comity in this area is sound. "The protection to free speech and the press embodied in [the First] amendment would be seriously jeopardized by the entry of foreign judgments granted pursuant to standards deemed appropriate in [another country] but considered antithetical to the protections afforded the press by the U.S. Constitution." Absent a body of law that establishes international standards with respect to speech on the Internet and an appropriate treaty or legislation addressing enforcement of such standards to speech originating within the United States, the principle of comity is outweighed by the Court's obligation to uphold the First Amendment.
CONCLUSION
Yahoo! seeks a declaration from this Court that the First Amendment precludes enforcement within the United States of a French order intended to regulate the content of its speech over the Internet…. Accordingly, the motion for summary judgment will be granted.
AFTERWORD
On appeal in 2006 the Ninth Circuit Court of Appeals ruled by a vote of eight to three that the California district court had personal jurisdiction over the French defendants, but six judges also held that Yahoo! could not pursue its declaratory judgment action. Three of those six said the declaratory judgment action was not "ripe" for decision, while the other three were the minority that held that the court had no personal jurisdiction. The Supreme Court declined to review the decision.
We cannot tell from this opinion why the French court believed it had jurisdiction to adjudicate against Yahoo!, as opposed to Yahoo! France. Look back at the discussion of the Restatement (Third) of Foreign Relations Law immediately before this case. Why might the French court have had jurisdiction over Yahoo! France? Over Yahoo!?
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27
McLaren was an employee of Microsoft Corporation. In December 1996, Microsoft suspended McLaren's employment pending an investigation into accusations of sexual harassment and "inventory questions." McLaren requested access to his electronic mail to disprove the allegations against him. According to McLaren, he was told he could access his e-mail only by requesting it through company officials and telling them the location of a particular message. By memorandum, McLaren requested that no one tamper with his Microsoft office workstation or his e-mail. McLaren's employment was terminated on December 11, 1996.
Following the termination of his employment, McLaren filed suit against the company alleging as his sole cause of action a claim for invasion of privacy. In support of his claim, McLaren alleged that, on information and belief, Microsoft had invaded his privacy by "breaking into" some or all of the personal folders maintained on his office computer and releasing the contents of the folders to third parties. According to McLaren, the personal folders were part of a computer application created by Microsoft in which e-mail messages could be stored. Access to the e-mail system was obtained through a network password. Access to personal folders could be additionally restricted by a "personal store" password created by the individual user. McLaren created and used a personal store password to restrict access to his personal folders.
McLaren concedes in his petition that it was possible for Microsoft to "decrypt" his personal store password. McLaren alleges, however, that "[b]y allowing [him] to have a personal store password for his personal folders, [McLaren] manifested and [Microsoft] recognized an expectation that the personal folders would be free from intrusion and interference." McLaren characterizes Microsoft's decrypting or otherwise "breaking in" to his personal folders as an intentional, unjustified, and unlawful invasion of privacy.
Did Microsoft unlawfully invade McLaren's privacy Explain. See McLaren v. Microsoft, 1999 Texas App. LEXIS 4103 (5th Dist., Dallas).
Following the termination of his employment, McLaren filed suit against the company alleging as his sole cause of action a claim for invasion of privacy. In support of his claim, McLaren alleged that, on information and belief, Microsoft had invaded his privacy by "breaking into" some or all of the personal folders maintained on his office computer and releasing the contents of the folders to third parties. According to McLaren, the personal folders were part of a computer application created by Microsoft in which e-mail messages could be stored. Access to the e-mail system was obtained through a network password. Access to personal folders could be additionally restricted by a "personal store" password created by the individual user. McLaren created and used a personal store password to restrict access to his personal folders.
McLaren concedes in his petition that it was possible for Microsoft to "decrypt" his personal store password. McLaren alleges, however, that "[b]y allowing [him] to have a personal store password for his personal folders, [McLaren] manifested and [Microsoft] recognized an expectation that the personal folders would be free from intrusion and interference." McLaren characterizes Microsoft's decrypting or otherwise "breaking in" to his personal folders as an intentional, unjustified, and unlawful invasion of privacy.
Did Microsoft unlawfully invade McLaren's privacy Explain. See McLaren v. Microsoft, 1999 Texas App. LEXIS 4103 (5th Dist., Dallas).
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28
Psychologists are worried that the Internet will make shopping too easy. Explain their concern.
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29
Bensusan Restaurant Corporation owns the famous New York City jazz club "The Blue Note," and in 1985 it registered the name as a federal trademark. Since 1980, King has operated a small club in Columbia, Missouri, also named "The Blue Note."Around 1993, Bensusan wrote to King demanding that he discontinue use of "The Blue Note" name. King's attorney responded by saying that Bensusan had no legal right to make the demand. In 1996 King created, in Missouri, a Web site for "The Blue Note," which also contained a hyperlink to the New York club's Web site. Bensusan then sued in the Southern District of New York, alleging Lanham Act and trademark violations, among other things. The New York court dismissed the case for lack of personal jurisdiction. Bensusan appealed. Decide. Explain. See Bensusan Restaurant Corp. v. King, 126 F.3d 25 (2d Cir. 1997).
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