1. Cyberlaw and the Global Economy Class 1: One Net or Many? Harvard Law School Fall, 2004 John Palfrey September 9, 2004

2. Commercial law on the Net Is it possible to make the case for “…the desirability of their being but a single law governing the conduct of a person who chooses to make material available on the Net”?Is it possible to make the case for “…the desirability of their being but a single law governing the conduct of a person who chooses to make material available on the Net”? –Quote from the argument, ascribed to WSJ, in Dow Jones v. Gutnick (2002)

3. Will forum shopping go wild? "Forum shopping will now go wild. Small, Internet publishers may well flock to the United States to host their web-sites in that jurisdiction, rely on U.S. journalists for content, to avail themselves of First Amendment 'asylum' when publishing reportage which might reference an Australian in less than favorable light. Any dubious, Australian State court judgment may well be unenforceable in the United States as an anathema to the First Amendment. As the Australian Court admitted 'Further, in many cases of this kind, where the publisher is said to have no presence or assets in the jurisdiction, it may choose simply to ignore the proceedings. It may save its contest to the courts of its own jurisdiction until an attempt is later made to enforce there the judgment obtained in the foreign trial. It may do this especially if that judgment was secured by the application of laws, the enforcement of which would be regarded as unconstitutional or otherwise offensive to a different legal culture.'”"Forum shopping will now go wild. Small, Internet publishers may well flock to the United States to host their web-sites in that jurisdiction, rely on U.S. journalists for content, to avail themselves of First Amendment 'asylum' when publishing reportage which might reference an Australian in less than favorable light. Any dubious, Australian State court judgment may well be unenforceable in the United States as an anathema to the First Amendment. As the Australian Court admitted 'Further, in many cases of this kind, where the publisher is said to have no presence or assets in the jurisdiction, it may choose simply to ignore the proceedings. It may save its contest to the courts of its own jurisdiction until an attempt is later made to enforce there the judgment obtained in the foreign trial. It may do this especially if that judgment was secured by the application of laws, the enforcement of which would be regarded as unconstitutional or otherwise offensive to a different legal culture.'” –SRIMedia, December 16, 2002 at http://www.srimedia.com/artman/publish/article_317.shtml

4. Exceptionalism Internet exceptionalismInternet exceptionalism American exceptionalismAmerican exceptionalism Corporate exceptionalismCorporate exceptionalism Are all Net issues best dealt with the same way?Are all Net issues best dealt with the same way? –Banking transactions –Domain name dispute resolution –Taxation –Contract dispute resolution –Gambling –Speech-related disputes –Intellectual property

5. How many internets? If not a single Net and a single law, how should we think about multiple Nets and multiple laws? Cf. Zittrain, Be Careful.If not a single Net and a single law, how should we think about multiple Nets and multiple laws? Cf. Zittrain, Be Careful. –Personal Jurisdiction (Geist “effects” test) –Choice of Law –Enforcement What about a patchwork that binds some countries’ laws via treaty?What about a patchwork that binds some countries’ laws via treaty?

6. Should tech change drive law? “Traditional notions of fair play and substantial justice” (International Shoe) means what exactly when we’re dealing with the Net?“Traditional notions of fair play and substantial justice” (International Shoe) means what exactly when we’re dealing with the Net? Kyllo in the privacy context raises the same point. If technology allows police to achieve a new means of surveillance, at what point do/must our reasonable expectation of privacy, vis-à-vis the 4 th Amendment protections, change?Kyllo in the privacy context raises the same point. If technology allows police to achieve a new means of surveillance, at what point do/must our reasonable expectation of privacy, vis-à-vis the 4 th Amendment protections, change?

7. Admin New technologiesNew technologies –H2O (hroberts@cyber.law.harvard.edu) H2O –Weblogs Weblogs GradingGrading –50% online/class participation –50% paper Optional means optional.Optional means optional. –Readings –Food For Thought dinners (wkoslow@cyber.law.harvard.edu) wkoslow@cyber.law.harvard.edu ClinicalsClinicals –Jeffrey Cunard (jpcunard@debevoise.com) jpcunard@debevoise.com –Bruce Keller (bpkeller@debevoise.com) bpkeller@debevoise.com –Phil Malone (pmalone@cyber.law.harvard.edu) pmalone@cyber.law.harvard.edu

8. Cyberlaw and the Global Economy Commercial Transactions Intellectual Property Data Protection, Security and Privacy ICT and Development 2.1 Online Transactions 2.2 Spam & Regulation 2.3 Mergers & Acquisitions

9. Cyberlaw and the Global Economy Commercial Transactions Intellectual Property Data Protection, Security and Privacy ICT and Development 3.1 Brand 3.2 Copyright & Digital Media 3.3 Copyright Alternatives

10. Cyberlaw and the Global Economy Commercial Transactions Intellectual Property Data Protection, Security and Privacy ICT and Development 4.1 Data Security/Privacy 4.2 Lawful Intercept Case Study

11. Cyberlaw and the Global Economy Commercial Transactions Intellectual Property Data Protection, Security and Privacy ICT and Development 5.1 An All IP Future? 5.2 Entrepreneurship

12. Berkman Center for Internet & Society Harvard Law School http://cyber.law.harvard.edu John Palfrey September 9, 2004