Spring 2000                                                                                                                                                     Campus ID: ____________________

                                                                                                                                                                               Course: ____________________

                                                                                                                                                                           Professor: ____________________

 

 

THESE EXAM QUESTIONS MUST BE RETURNED AT THE END OF THE EXAM

 

SANTA CLARA UNIVERSITY

SCHOOL OF LAW

 

5793 Cyberspace Law                                                                                                                                                                            May 2, 2000

Professor Eric Goldman                                                                                                                                                                      Spring Semester

2 Essay Questions                                                                                                                                                                                     6:00 to 7:30

 

THIS IS AN OPEN BOOK EXAM (ANY MATERIALS PERMITTED BY THE EXAMINATION RULES ARE PERMITTED).  THE EXAMINATION RULES AS STATED IN THE CURRENT STUDENT HANDBOOK GOVERN THIS EXAMINATION.

 

Instructions—PLEASE READ CAREFULLY

 

1.         This is a single part exam with a total time limit of 1½ hours. There are a total of two questions, with the following weighting for each question:

 

Question 1:       60% (54 minutes)

Question 2:       40% (36 minutes)

 

2.         I have the following tips and strategies for you:

 

2.1       Please outline your answers carefully and deliberately. I recommend that you spend approximately 1/3 of your allocated time reading the question and outlining a response.

 

2.2              Follow the call of the question.  Target your response to your audience.

 

2.3              While generally your answers should be based on legal principles, it is always appropriate to address business issues.

 

2.4              Keep separate legally-distinct parties and their respective rights & responsibilities.

 

2.5       Additional information may be useful in your analysis.  Please indicate what additional information would be helpful, and then state your assumptions in order to proceed with your analysis.

 

GOOD LUCK AND HAVE A GREAT SUMMER!

 

QUESTION 1 (54 minutes)

 

Your client is Embarq, a website that allows users to read and post to USENET.  The service works by converting content Embarq receives in NNTP format into a format that allows the content to be displayed via HTTP.  All Embarq pages have several banner and button ad spots. 

 

Two of the approximately 50,000 USENET groups carried by Embarq are alt.salsa and alt.salsa.photos (collectively, alt.salsa and alt.salsa.photos are the “Newsgroups”).  Salsa is a pornography website that allows users to view pornographic pictures if they pay the monthly subscription fee.  A number of Salsa users routinely access photos on Salsa’s web servers and then post these photos to the Newsgroups.

 

Like most USENET service providers, Embarq stores USENET messages on its servers for a limited period of time, usually 30 days, and then automatically deletes them.  Embarq does not otherwise delete messages from its USENET database except when it receives a complaint about a message and the message is illegal or tortious.  Embarq does not carry all USENET newsgroups, and Embarq has stopped carrying dozens of newsgroups in the past (mostly child pornography- and bestiality-related groups).  Embarq did not create the Newsgroups, hundreds of other USENET service providers carry the Newsgroups, and Embarq does not take any unique steps to support the Newsgroups.

 

Other possibly relevant facts:

 

·        The expression “Salsa” is a registered trademark of Salsa

·        3% of all USENET messages originate from users posting through the Embarq website

·        90% of the Newsgroups’ messages contain pornographic photos which likely originated from Salsa (the remaining 10% of the postings are text-only messages)

·        Page impressions for the Newsgroups comprise about 5% of Embarq’s total impressions

·        Embarq has registered an agent for service of notice with the Copyright Office and posted the corresponding information on its website, terminates repeat infringers and honors standard technical measures

 

Salsa sends a letter to Embarq demanding that Embarq stop carrying the Newsgroups because Salsa’s photos are routinely posted there.  Embarq responds that Embarq will remove specific messages if such messages are identified pursuant to a DMCA-compliant notice.  Salsa responds that it will not discuss the matter further and that it will sue Embarq if Embarq does not immediately stop carrying the Newsgroups.

 

Embarq asks you what it should do.  What are Embarq’s options?  If Salsa sues, what will it sue for, and how strong will its claims be?

 

Eric’s tips and hints:

·        You do not need to answer the questions in the order presented above.  Just make sure to answer all of the questions in your response.

·        Do not discuss anyone’s liability for obscenity, child porn, or other statutes that regulate or criminalize indecent or harmful to minors material.

 

END OF QUESTION 1

 

QUESTION 2 (36 minutes)

 

Your client is EmptyFree, a website that allows users to download MP3 music files.  A wide variety of MP3 files are available on EmptyFree’s site; categories include alternative, blues, children’s music, classical, country, jazz, Latin and pop/rock.

 

When a user tries to download an MP3 file for the first time, a pop-up window appears, requiring the user to register for the site merely by providing an email address.  There is no user agreement or privacy policy displayed on the pop-up window; however, the home page links to a privacy policy that says, in relevant part, “EmptyFree does not sell, rent, or trade your personal information with others, and EmptyFree may occasionally contact you with information regarding special events at our site.”  Once registered, returning users can log-in simply by entering their email address on a log-in screen, or if they enable cookies, the site automatically treats them as registered when they return.

 

All submitted email addresses are added to EmptyFree’s email address database.  The email addresses are not validated (i.e., EmptyFree does not send a confirming email to the address before treating it as valid); as a result, users often submit bogus addresses.  EmptyFree uses a third party service provider to send weekly email “newsletters” to all email addresses in its database.  In addition, on occasion, EmptyFree turns over an electronic version of its database to third parties, such as record labels, who pay EmptyFree for the right to send emails themselves to users in the database.

 

EmptyFree asks you to assess its email practices.  Do its current email practices create problems?  If so, BRIEFLY discuss what problems are created, and suggest PRACTICAL ways that EmptyFree might solve the problems.

 

Eric’s Tips and Hints:

·       Do not discuss any issues related to the distribution of MP3 files.

 

END OF QUESTION 2

END OF EXAMINATION