978-0134004006 Chapter 17 Lecture Note

subject Type Homework Help
subject Pages 8
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subject Authors Henry R. Cheeseman

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Through the use of chat rooms, any person with a phone line can become a town
crier with a voice that resonates farther than it could from any soapbox. Through the
use of Web pages, mail exploders, and newsgroups, the same individual can become a
pamphleteer. Justice Stevens
I. Teacher to Teacher Dialogue
Every generation has the good fortune, and sometimes misfortune, of being witness to events
that become the landmarks by which future generations will measure history. These landmarks
can take place during social upheavals such as the civil rights movements, horrible conflagrations
Originally intended only for a select group of military and academic uses, it has virtually
exploded onto every continent and every country to facilitate a level of communication never
concerned with all aspects of privacy concerns and intellectual property rights. The Internet is
impacting governmental regulation, employment law, consumer protection, business formation,
and agency laws today. We must take the lessons of history learned in those key areas of business
law and remember that they are rooted in an orderly legal system. How, when, and where do we,
proposals, while surely seen as imperfect by many, are evolutionary efforts to do the same for e-
commerce. They seek to expand the economic well being of our nation while still seeking to
DIGITAL LAW AND E-COMMERCE
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Chapter 17
and good conscience.
The chapter also looks at licensing, highlighting the problems that arise in the instances of
licenses acquired for this form of intellectual property.
In the end, the art of teaching the law of e-commerce and the Internet is basically the same as
no choice: That is where this road is taking us. But we must have faith in the law’s ability to land
safely.
II. Chapter Objectives
1. Describe the laws that apply to e-mail contracts, e-commerce, and Web contracts.
2. Describe e-licensing and software law.
Commerce Act (E-Sign Act)
4. Describe laws that protect privacy in cyberspace.
III. Key Question Checklist
How is an Internet domain name obtained and protected?
Is a license or licensing agreement involved?
IV. Text Materials
E-commerce is the use of the Internet to sell goods and services. It has exploded over the last
Internet
The Internet is a collection of computers operating along an electronically connected network.
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Digital Law and E-Commerce
World Wide Web The standard for information exchange on the Web is HTTP. Documents on
E-Mail Contracts
Using e-mail, individuals around the world can instantaneously communicate in electronic
writing with one another. Contracts completed by using e-mail, referred to as electronic mail
Digital Law: Regulation of E-Mail Spam
The CAN-SPAM Act prohibits spammers from falsifying headers in e-mail messages, prohibits
Case 17.1 E-Mail Spam: Facebook, Inc. v. Porembski
2011 U.S. Dist. Lexis 9668 (2011), United States District Court for the Northern District of
California
Facts: Facebook alleged that Porembski registered as a Facebook user and was bound by the
SSR. Porembski created PP Web Services, LLC and was the sole person to act on its behalf.
Through fraudulent misrepresentations, Porembski obtained more than 116,000 Facebook users’
Issue: Did the defendants violate the CAN-SPAM Act?
Decision: Yes, the record demonstrates that the defendants willfully and knowingly violated the
Case Questions: Spam is simply unsolicited commercial advertising. The CAN-SPAM Act
prohibits spammers from using falsified headers in e-mail messages and prohibits deceptive
subject lines that mislead a recipient about the contents or subject matter of the message. The
Internet Service Provider (ISP) ISPs provide e-mail accounts to users, Internet access, and
storage on the Internet. ISPs offer a variety of access devices and services, including dial-up,
E-Commerce and Web Contracts
been upheld.
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Chapter 17
Case 17.2 Web Contract: Hubbert v. Dell Corporation
agreement that was contained in the Terms and Conditions of Sale. The plaintiffs countered that
the arbitration clause was not part of their Web contract because the Terms and Conditions of
Sale were not conspicuously displayed as part of their Web contract. The trial court sided with the
plaintiffs, finding that the arbitration clause was unenforceable because the terms and conditions
by the plaintiffs to claim that the Terms and Conditions of Sale were not included in their Web
contract with Dell. But terms and conditions of sale are always put up for the consumers’ and the
sellers’ safety during a trade. It serves more as a backup document in case of a lawsuit.
designed to recognize electronic signatures, giving them the same force and effect as a pen-signed
one.
Counteroffers Ineffectual Against Electronic Agent Most Web pages use electronic ordering
E-Licensing
E-commerce created problems for forming contracts over the Internet, enforcing e-commerce
contracts, and providing consumer protection. To address these problems, in 1999, the National
Digital Law: Uniform Computer Information Transactions Act (UCITA)
UCITA established a uniform and comprehensive set of rules that govern the creation,
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Digital Law and E-Commerce
limited rights.
E-License The owner of the program or application is the electronic licensor, or e-licensor, and
for new statutes in this area.
Licensing Agreement Usually, the parties enter into a written agreement that tends to be quite
detailed. This is primarily because of the nature of the subject matter and the limited uses granted
Privacy in Cyberspace
Recognizing that the use of computer and other electronic communications raises special issues
Electronic Communications Privacy Act The ECPA makes it a crime to intercept electronic
activity.
Critical Legal Thinking There is no constitutional “right to privacy” and perhaps no inherent
right to privacy as it pertains to electronic communications.
Domain Names
Registration of Domain Names Domain names can be registered. The first step in registering a
Domain Name Extensions The most common top-level domains are the .com, .net, .org, .info,
Digital Law: New Top-Level Domain Names
The new rules permit companies to have their own company name TLD, such as .canon, .google,
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Chapter 17
.food, .basketball, and .dentist.
Cybersquatting on Domain Names Sometimes a party will register a domain name of another
party’s trademarked name or famous person’s name. This is called cybersquatting. Trademark
Digital Law: Federal Law Prohibits Cybersquatting on Domain Names
In 1999, the U.S. Congress enacted the Anticybersquatting Consumer Protection Act (ACPA).
Club
Claim Number FA0609000803277 (2006) National Arbitration Forum
Facts: Moniker Online Services, Inc. (Moniker), registered the domain name <nyyankees.com>.
Moniker operates a commercial website under this domain name where it offers links to third-
party commercial websites that sell tickets to Yankee baseball games and sell merchandise
from Moniker.
Issue: Did Moniker violate the ICANN’s Uniform Domain Dispute Resolution Policy (Policy)?
Decision: Yes, the complaint has sufficiently demonstrated that Moniker’s <nyyankees.com>
domain name is confusingly similar to the complainant’s NEW YORK YANKEES mark.
Moniker uses the <nyyankees .com> domain name to operate a website providing links to third-
reasons is easy recognition and quick business tactics by deceiving customers.
Global Law Internet in Foreign Countries
Many countries censure or control the use of electronic communications. There is no
international law that governs the Internet.
V. Key Terms and Concepts
.aeroUsed in the aviation community.
.bizUsed in the small business community.
.bzUsed in Belize.
in the world.
.coopUsed by coops around the world.
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Digital Law and E-Commerce
.eduThis extension is for educational institutions.
names.
.netThis extension represents the word network.
.orgThis extension represents the word organization and is primarily used by nonprofit
groups and trade associations.
.proProfessionals such as doctors and lawyers use this extension.
websites.
Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM
Act)The CAN-SPAM Act prohibits spammers from using falsified headers in e-mail
messages and prohibits deceptive subject lines that mislead a recipient about the contents or
subject matter of the message.
she claims to be.
Domain nameA unique name that identifies an individual’s or company’s website.
Electronic agentAny computer system that has been established by a seller to accept
orders.
E-commerceThe sale of goods and services by computer over the Internet.
communications.
Electronic licenseA contract whereby the owner of software or a digital application grants
limited rights to the owner of a computer or digital device to use the software or digital
application for a limited period and under specified conditions.
Electronic licenseeThe owner of the computer or digital device to whom the license is
granted is the electronic licensee, or e-licensee.
licensor.
Electronic mail (e-mail)Electronic written communication between individuals using
computers connected to the Internet.
Electronic mail contractA contract that is entered into by the parties by use of e-mail.
Electronic signatureThe E-SIGN Act recognizes an electronic signature, or e-signature.
States.
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Chapter 17
rights for a specified duration.
InternetA collection of millions of computers that provide a network of electronic
connections between computers.
Internet Corporation for Assigned Names and NumbersThe organization that oversees the
registration and regulation of domain names.
usually short period of time.
LicenseeThe party who is granted limited rights in or access to intellectual property or
informational rights owned by the licensor.
Licensing agreementDetailed and comprehensive written agreement between the licensor
and licensee that sets forth the express terms of their agreement.
the licensor to licensee.
LicensorThe owner of intellectual property or informational rights who transfers rights in
the property or information to the license.
SpamUnsolicited commercial advertising.
Top-level domain namesPrior to 2011, there were 22 top-level domain names (TLDs). The
and software and information licenses.
Web contractA contract that is entered into by purchasing, leasing, or licensing goods,
services, software, or other intellectual property from websites operated by sellers, lessors,
and licensors.
WebsiteLarge and small businesses sell goods and services over the Internet through
websites and registered domain names.

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