This note evaluates the applicability of copyright to web design. Web design affects the appearance and user experience of a website, but excludes content such as the text or images. Web designers have an incentive to standardize websites to ease the learning curve of users who are new to a given website, which is strongly counterbalanced by internal and external pressures to perform creatively. Copyright law has been ambiguously applied to web design. Problems with copyrightability stem from the hurdles to determining what design is original, as well as the exclusion of functional elements. Even if a web design is copyrightable subject matter, successfully proving infringement is difficult. In several contexts where copyright protection might be an issue, this note finds that copyright is unnecessary to resolve disputes. The copyright symbol in the footer of websites can serve as a notice that socially pressures and deters potential copiers, protecting website design and incentivizing innovation, even in the absence of legal certainty.
The dawning of the information age, coupled with a greater understanding of the value of intellectual property, has increased the quantity of proprietary information businesses choose to keep as trade secrets. An often-underappreciated cost of trade secrets is the effect they have on the employment relationship – they frequently result in employers and employees involving themselves in convoluted legal and contractual relationships beyond their own expectations or comprehension. Further complicating the matter is the Economic Espionage Act (“EEA”), which increases the stakes of employer-employee conflict by criminalizing the misappropriation of trade secrets. This note provides a primer to help both employers and employees deal with the specific issues trade secrets frequently create in the employment relationship, first by outlining the current status of trade secrecy law, then by examining how the EEA is changing the trade secrecy landscape, and finally by providing a practical summary of best practices.
Handle with Care: The Evolving Actual Malice Standard and Why Journalists Should Think Twice before Relying on Internet Sources
This note examines two phenomena at the intersection of traditional media law and evolving forms of expression on the Internet, focusing on whether courts’ increasing tendency to view Internet sources as dubious will result in more findings of defamation among journalists who rely on those sources. First, the article considers the pressure that the “24-hour news cycle” has put on journalists, who with increasing frequency are relying on what they read on the Internet as research for their articles. When those Internet sources turn out to be incorrect, the harm has often already been done because a respected news outlet such as CNN has re-reported the incorrect news. The second phenomenon considered is a spate of recent cases in which courts have stated that certain Internet sources should automatically be viewed with skepticism, including sites that do not undergo a rigorous editorial process. Given these developments and the recent spate of embarrassing mistakes by news media in high-profile cases such as the misreporting of the name of the Sandy Hook shooter, the author advocates for greater diligence by reporters in checking the Internet sources upon which they rely, and discusses how societal recognition of the dubious nature of Internet sources could chip away at the significant protection against legal action traditionally given to journalists.
Domain names may have substantial economic and social value. They are often the objects of dispute. There is a recent judicial trend, particularly in the Court of Appeals for the Ninth Circuit, toward characterizing domain names as “property” subject to rules of sale and transfer typical of personal property. This judicial characterization identifies “alienability” as a fundamental characteristic of domain names. This sets up a real or potential conflict with jurisdictions or forums where domain names have been judicially or administratively characterized as “contract rights” based on the legal relationship between the domain name registrant and the registrar. Several recent decisions among Ninth Circuit courts applying the federal Anticybersquatting Consumer Protection Act (ACPA), on one side, and administrative panels applying the Uniform Domain Name Dispute Resolution Policy (UDRP), on the other, call attention to the possibility for different dispute settlement outcomes depending on whether domain names are treated as freely alienable property or contract rights incorporating various obligations on transferors and transferees. In this article, the author analyzes the legal bases used to characterize Internet domain names, and suggests that it may not be necessary to draw a line between “intangible property” and “contract rights”. Domain names may be treated as both.
Not Your Father’s Domain Name: How gTLD Expansion Is Poised to Change the Way We Navigate the Internet
International domain-name overseer, ICANN, has been developing plans for the dramatic expansion of available g-TLDs, the .com’s and .gov’s currently so limited in variety that we have them all committed to muscle memory. Proposed regulations allowing for the creation of new dot.possibilities present intuitive marketing opportunities for companies interested in adding sophistication to their online presence. Andy Mcneil explores this potential and the legal challenges that ICANN’s costly and untested regulatory framework present in trademark protection and other strategic marketing competition.
Is Facebook Killing Privacy Softly? The Impact of Facebook’s Default Privacy Settings on Online Privacy
Facebook has revolutionized the way that people communicate and do business by providing an open and connected environment for individuals and businesses alike. This openness has largely contributed to both its popularity and success. However, enjoying the openness of this revolutionary platform may come at an unexpected cost, especially for those who do not understand how the website’s content may be used as evidence in a lawsuit. Darren Heitner demonstrates how content published on a person’s Facebook account may be discoverable for the purposes of litigation, even when the information sought is unavailable through Facebook’s privacy settings.
Do Facebook, Twitter, and MySpace require courts to Tinker with the Supreme Court’s student speech trilogy of Tinker to Bethel to Morse?Michael J. Kasdan examines the struggle to define the proper place of so-called “student internet speech.”
Using Clean Hands to Justify Unclean Hands: How the Emergency Exception Provision of the SCA Misapplies an Already Controversial Doctrine
While the government’s encouragement—and even reliance—on third-party monitoring of citizens is not a new phenomenon, the emergency exception to the SCA adopted in the Patriot Act oversteps constitutional bounds by providing the executive with the incentive to exaggerate potential threats in order to gain the collaboration of the telecommunications companies. The policies underlying this strategy are similar to those explained and adapted by the Sixth Circuit while articulating its Clean Hands Exception.Brendan Coffman argues that by allowing the government to gain access to evidence it normally would not be able to obtain, and ignoring the normal parameters of the exclusionary rule, the Sixth Circuit created a regime encouraging complicity between law enforcement and private citizens. Similarly, the arguments running contrary to the Clean Hands Exception ring true when assessing the emergency exception: the government has too great an incentive to encourage third parties to violate the privacy rights of others, and the third parties, especially telecommunications companies, are ultimately trapped in a Hobson’s Choice.