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Glossary of Internet law

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Jurisdiction:

i. (1) To say defendant has a website that can be seen and can be experienced by any person with a computer to any state and therefore should be subject to personal jurisdiction in any state.
ii. (2) Nothing that you can do
Two Ways to classify internet activity in terms of contacts
Personal Jurisdiction:


the courts have treated this as minimum contacts as sui generis. Basically created their own minimum contacts in order to establish personal jurisdiction. Don’t need to know civil procedure for this class.
Website Activity
Personal Jurisdiction

) Which of three categories does the website fit into:
1. Passive Website – that does little more then making information available, and very little else.
2. Middle Ground - Anything else in between this belo
Test when analyzing minimum contacts
personal jurisdiction:

that does little more then making information available, and very little else.
passive website
personal jurisdiction:

- Anything else in between this belongs in this middle category.
middle ground
Personal jurisdiction:

When a defendant does business on the Internet that involves the knowing and repeated transmitting of computer files.
does business on the internet
personal jurisdiction:

1. Look at the level of Interactivity, and
2. Whether it is of a Commercial Nature.
1. If test is satisfied then it is a category 3 and there is personal jurisdiction.
if middle ground
personal jurisdiction:

Did the website intentionally direct activity into the forum state. (Different then Minimum Contacts).
i. Directs electronic activity into forum state
ii. With intent to engage in business in state
iii. Cr
ALS TEST
personal jurisdiction:

a. Courts generally require some type of actual or potential transaction.
interactivity
personal jurisdiction:

purchasing with an item with a credit card.
actual transaction
personal jurisdiction:

not sufficient to satisfy due process, there must be a deliberate action. Ex. – Actual sales are unnecessary as long as they provide goods for sale.
interactivity: potential transactions
personal jurisdiction:

websites that solicited donations, that hosts a bulletin board, that allows software download, that allows prospective employees to provide there website
interactivity: not active websites
personal jurisdiction:

website that allows people to make reservations to hotel, rental vehicle, and etc.
interactivity; interactive
personal jurisdiction:

a. Not a very important cause a lot of websites’ are not commercial in nature. Commercial in Nature: Company Information, Ads solicit potential transactions, and Apply for new service because it is buying and selling.
commercial nature
personal jurisdiction:

Personal Jurisdiction can be predicated on Intentional actions Expressly aimed at forum state Causing harm, Brunt of which defendant knows is likely to be Felt in the forum state.
effects test
personal jurisdiction:

1. Facts: He registered the plaintiff’s trademarks and tried to extort money out of them. Court Says: by intentionally trying to sell the domain names that is an intentional action aimed at the forum state.
effects test: panavision v. toeppen
personal jurisidction:

1. Facts: Plaintiff sues the defendant based on defamation from an article posted on his website. Court Says: Regarding the effects test the court said, it was directed at the world at large and in fact the defendant did
effects test; Revell v. Lidov
personal jurisdiction:

a. Mcgree: SC found jurisdiction on single contract. Now, a single contract is not an automatic jurisdiction creator and you have to look more than that.
b. CompuServe v. Patterson Pg. 357
i. Facts: Patterson
commercial transactions via online communications case law
personal jurisdiction:

a. Web hosting in forum state is not enough. Making payments to a forum state and accessing a database in the forum state is not enough.
use of computer equipment located in the forum state
personal jurisdiction:

a. Look at all contacts
combining offline and online contracts
personal jurisdiction:

a. If you want jurisdiction with an out of country business it is their contracts with the US not the contracts with any particular state.
rule 4(k)(2)
Trademarks

i. Marks must be valid
ii. Owned by plaintiff, and
iii. (Likelihood of Confusion) - The defendant’s use is likely to create confusion. (usually the issue in all trademark cases).
traditional trademark infringement:

3 part test for infringement
trademarks

8 factors for liklihood of confusion
strength of mark
similarity of mark
the competitive proximity of the products
the liklihood that plaintiff will bridge the gap
actual confusion
the defendant's good faith
the quality of defendant's product
the sophistication of the buyers
trademarks

a. Facts: Plaintiff registered the domain names of moviebuff.com. But, the defendant used for its tags moviebuff.com.
b. Court Says: If you got the plaintiffs website here, and the defendants website, there is initial interest
initial interest confusion

Brookfield
tradmark

for an initial amount of time the plaintiff is confused as to the plaintiffs sponsorship of this banner ad, and this is a form of confusion that is prohibited by trademark law.
initial interest confusion
trademarks

a. Facts: Bihari is an interior designer and Gross is the client. The work is not finished, so a complaint was filed. Settlement negotiations fail, so Gross registers his marks. Bihari sends a demand letter, and Gross delivers pens
initial interest confusion:

Bihari
trademarks

(trademark) use or displayed in the sale or advertising of services/services in commerce. Need use of mark in commerce for trademark infringement.
pop up advertisements:

use in commerce
trademarks:

(1) use in commerce, (2) used or displayed in the site or advertising or advertising (3).
pop up advertisements:

trademark infringment
trademark dilution:

Dilution potentially prevents another from using your trademark even absent the use in competing goods or services. Dilution is the lessoning of the capacity of a famous mark to identify and distinguish its goods in service
dilution
trademark dilution:

this is more like classic dilution. When an ability of a mark to serve as a unique identifier as the plaintiffs goods or services is weakened because the relevant public now also associates that mark with a new and differen
dilution: blurring
trademark dilution:

When the selling power of a trademark is undermined by an association with negative goods and services.
dilution: tarnishment
trademark dilution:

8 factors for famous mark
1. Degree of inherent or acquired distinctiveness of hte mark
2. The Duration and the extent of advertising
3. Geographical extent of th trading area in which the mark is used
4. channels of trade for the goods
5. Degree of recognition of the mark
6. Nature and extent of the use of hte same or similar mark by third parties
7. wheteher the mark is registered.
8. duration and extent of use of the mark in connectino with the goods and services
Trademark Defenses:

Allows the defendant to use the plaintiff’s trademark to describe the defendant’s own product. You can raise this defense when you are using a mark other than as a product identifier or trademark
traditional fair use
trademark defenses:

whenever you see criticism you will be talking about a fair use defense.
traditional fair use elements
tradmark defenses:

Allows a defendant to use a plaintiff’s trademark to describe the plaintiff’s product. This is used in the context of comparative advertising. Difference, does it look like comparative advertising or not.
nominative fair use
trademark defenses:

1. Plaintiffs product not readily identifiable without use of trademark,
2. Only so much of the mark or marks may be used as is reasonably necessary to identify the product,
3. User does nothing that would sugges
three requirements for nominative fair use
trademark defenses:

Available to a defendant when defendants use of the plaintiffs mark is used to identify a message rather then identify the source of the product.
first amendment defense
trademark defense:

1. Defendant who is an anti-abortion activist did register plannedparenthood.com, when the page opens up you get an image of an anti-abortion book. Defendant admits that he was trying to reach people that he usually cannot r
first amendment defense;

planned parenthood case
domain names:

a. Facts: Lockheed has the trademark skunkworks and someone came in and registered skunkworks.com, and Lockheed is going after networks solutions says that they cannot register their trademarks to someone else.
b. Court Say
traditional trademark law and domain names:

lockhead case
domain names:

a. Facts: preliminary injunction, but they did not want to turn it over while litigation was going on. So the court has to look at a few things that involve issuing a preliminary injunction. One of the things they have to do is l
traditional trademark law and domain names:

green products
domain names:

a. Facts: They attempted to register Panavision.com and they find out that Toeppen is the owner of this trademark. After they have not settled on this, Tooppen goes out and registers Panavisions trademark. His first website has a
trademark dilution:

panavision
domain names:

a. Facts: Ty makes bennie babies and Perryman sells used bennie babies online. Court Says: The court talks about dilution and says that there are 3 possibilities. First, the dilution through blurring is that before whenever you s
trademark dilution:

ty inc
copyright:

a work is fixed in a tangible medium of expression when its embodiment in a copy or phorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise commu
fixed
copyright:

1. Facts: has a computer manufacturer who produces software to operate their stuff. Peak repairs computers. Employees left MAI, more like trade secrets case. Court Says: MAI software license does not allow the use or copy of there s
exclusive control: reproduction right:

MAI case
copyright:

the owner or lessee of a machine to make or authorize the making of a copy of a computer program if such copy is made solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program,
exclusive control: reproduction right:

copyright act 1998
copyright

A derivative work must be fixed to be protected but not to infringe.
exclusive copyright:

derivative work
copyright:

is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form
exclusive copyright:

derivative work definition
copyright:

1. Facts: Nintendo makes games for NES, and Galoob put out a game genie that alters up to three effects on the Nintendo games but are not permanent alterations. Nintendo sued cause they said that they have created a derivative work.
exclusive copyright:

derivative work case law
copyright:

(1) The work must exist in a concrete and or permanent form. (2) Must substantially incorporate the copyrighted work.
exclusive copyright:

derivative work new definition
copyright:

1. Facts: Frena supplied a product of unauthorized copies on his website. He ran a bulletin board, people were posting pics of playboy and people were downloading them. Court Says: that you don’t have to be the one making the copi
exclusive copyright:

the distribution and public display rights
copyright:

This is what you claim when you have been found to infringe on someone copyright, but despite the fact that I am infringing my use falls within the fair use affirmative defense.
copyright fair use defense
copright:

fair use factors
1. purpose (transformative) and Character (commercial) of the Use

2. nature of the Copyrighted Work

3. Amount and Substantially of hte Portion Used

4. Effect on the Potential Market
copyright:

i. Facts: These newspapers post-there article online and you have to pay to look at them. Defendant has a website where they copy verbatim from other newspapers and they post them on websites and they post them to comment on them. T
copyright fair use defense case law
copyright:

a. You can sell the LP record that you purchase. Whoever buys this has a right to distribute.
first sale doctrine
copyright:

a. Link: click on a link and your comp will download the page.
b. What if I had a hyperlink on my webpage that linked to a site that has copyrighted material on it. That is not copyrighted material because you are providing th
copyright and common internet activities:

linking and framing
copyright:

i. Court Said: that it is commercial, but the purpose is transformative. Purpose is not to provide the work in an artistic value, but instead to provide the link to go somewhere else.
copyright and common internet activities:

search engines case law
anticybersquatting:

Must be distinctive or famous. D’s domain name must be identical or confusingly similar to P’s trademarks
anticybersquating consumer protection act
anticybersquating:

usually dealing with the bad faith intent to profit**
bad faith intent to profit
anticybersquating:

a. trademark or other intellectual property rights of the person, if any, in the domain name
b. the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to i
8 factors use as analytical tools
anticybersquating:

a. distinctive or famous. Identical or confusingly similar. Bad faith intent to profit. Factors - its clear that neither Sporty’s Farm nor Omega had any intellectual property rights in sportsy.com at the time Omega registe
anticybersquating: sporty's case
anticybersquating:

A way a court can get jurisdiction over a party. Ct exerts jx not over a party but over a piece of property. only available to assert ownership over a piece of property usually comes up in a context of civil litigation where
in rem
anticybersquating:

a. This guy found commonly misspelled trademarks and registered them. Once you go to this site, you get bombarded with pop ups and every time one of them pops up D gets paid. Ct says that he has these misspellings when a pot
electronic Boutique case
anticybersquating:

a. Registrar handles the consumer interaction. They send appropriate info to the registry and there is only one for .com, .net, .org. All the top level domain names are handled by verisign and they handle all the technical d
global santa fe corp
copyright:

want to argue fair use if it has been determined that you have infringed.
contributory infringment:

fair use defense
copyright:

i. Holding: one who distributes a device with the object of promoting its use to infringe, copyright, as shown by clear expression or other affirmative steps taken to foster infrignment, is liable for the resulting acts of infrignme
contributory infringment:

metro goldwyn case
copyright:

One who, with knowledge of infringing activity, induces, causes, or materially contributes to the infringing conduct of another. Elements:
1. Direct infringmenet 3rd party
2. Knowledge of that infringement *need intent, k
contributory Infringment:

Classic definition of contributory infringment

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