Spring 2018

Spring 2018 - Internet Litigation Seminar

Credits: 2 Thursday 3:55 pm - 5:55 pm

Rutgers School of Law–Newark Center for Law and Justice 123 Washington Street Newark, NJ 07102–3046

First Class --- Thursday August 24

Final Class --- Final work product due November 30

Internet Litigation Seminar Course Description -- The Internet interpenetrates all aspects of litigation.  This course addresses issues that must be considered when litigating civil or criminal matters or merely advising clients with respect to litigation from an Internet perspective. It covers basic civil and criminal litigation statutes, rules and regulations with an emphasis on Internet related aspects. The seminar will consider specific litigation issues related  to Internet privacy, electronic commerce, Internet intellectual property violations, Internet torts, taxation of Internet transaction, Internet speech violations, among others.

Internet Litigation Seminar Course Outline and Schedule

Class   Date               Topic
I           January 11       Introduction to the Internet and Litigation Law
II         January 18       Internet Litigation Procedures and Models
III        January 25       State and Federal Civil Internet  Litigation Rules and Regulations
IV        February 1       Internet Litigation Applications Related to Privacy
V         February 8       Elements of Internet Litigation for Trademarks, Copyrights & Patents
VI        February 15     Elements of Speech and Censorship Internet Litigation
VII      February 22     Elements of Internet Torts Internet Litigation
VIII     March 1            State and Federal Criminal Internet  Litigation Rule and Regulations
IX        March 8           Elements of Death and Taxes Internet Litigation
X         March 22         Elements of Electronic Commerce Litigation
XI        March 29         International Internet Litigation Rules and Regulations
XII      April 5             Alternative Internet Dispute Procedures
XIII     April 12           Student Presentations & special topics
XIV     April 19           Student Presentations & special topics FINAL WORK PRODUCT DUE

Contact information –Jbick@bracheichler.com--- 973-403-3155 (office)

I           January 11     Introduction to the Internet and Litigation Law

1. "Why Should the Internet Be Any Different" Pace Law Review (Fall 1998)Please note this and other articles which were written by Jonathan Bick may be found on BickLaw.com at http://www.bicklaw.com/Publications/index.html.

Discussion points  -- To assist and support persuasive and defensible arguments --- Analyze matter for relevant sources of content and code from website user interfaces, business applications, and back-end databases  --- Discover relevant Internet software and content.---- Provide responses  related to servers, websites, Internet applications, other Internet technologies.

2. Let’s Get Technical (Course Materials 1 and other Course Materials maybe found on – see blackboard.newark.rutger.edu or library).

 Discussion points --- The Internet relies on a set of standardized protocols and formats, such as TCP/IP, HTTP, UDP, IMAP, POP, SMTP and DNS. A  firm technical grasp of these standards is crucial to reaching informed and accurate opinions about the function and behavior of Internet applications.

3.  "Internet Man in the Middle Attack" Internet Law and Strategy January 29, 2016; http://www.bicklaw.com/Publications/ManintheMiddleAttacks.htm

4. “Judicial Notice and the Internet: The Legal Reasoning and Technical Basis for Taking Judicial Notice of the Fact that Internet Pages Display from the Top-Left-Hand Corner Out” Washburn Law Journal Spring 2013; http://www.bicklaw.com/JudicalNotice_000.htm

5.  "The Internet as Governmental Action" New Jersey Law Journal October 3, 2005; http://www.bicklaw.com/Publications/TheInternetasGovernmentAction.htm

6. Internet as Publication; Internet as Telecommunications; and Internet as Broadcasting

Please note that the numbers below refer to chapters in 101 Things You Need To Know About Internet Law by Jonathan Bick (Random House 2000) copies in Library
1. A parent is almost never liable for a child's bad acts on the Internet
2. To make Internet contracts enforceable, simply have proof of written signed terms
3. To avoid out-of-state liability when using web ads, avoid out-of-state contacts
4. Web site advertisement publishers are almost never liable for customers' advertisements
5. What can legally be done if a person impersonates another on the Internet
6. Buying and selling medicine on the Internet is legal
7. Spamming is generally not illegal, but one California court ruled spam e-mail to be illegal trespass
8. Sweepstakes and other Internet games of chance are legal
9. An Internet site's activities can result in an out-of-state suit....
10. Internet credit card transactions …

II January 18 Internet Litigation Procedures and Models

Discussion point -- seven phases of civil litigation (and most arbitration hearings)

Phase I: Investigation -- Preliminary Case Assessment & Development … Internet evidence collect …. visit transaction / accident scene, view transaction data, review  Internet site history, official records, research law and interviewing witnesses via e-mail

Phase II: Pleadings -- initial lawsuit paperwork is called pleadings  ,,,. Every person involved in a civil lawsuit files a pleading … plaintiff files complaint … defendant files answer … federal courts require only notifying the parties of the general issues in a case (  “notice” pleading ) … New Jersey  plaintiff must allegefacts to support claim rather than merely reciting the elements of a cause of action ( “fact pleading” )  … all New Jersey motions must be filed via eCourts, the judiciary’s electronic motion filing system.

Phase III: Discovery  --- Information exchange … Internet role includes: electronic request and filing with court … electronic record … all records in electronic form … remote depositions …third party witness (Amazon Echo, a web-connected wireless speaker which records sound and content) … other devices - Internet of things devices (IoT).

Phase IV: Pre-Trial / Pre-hearing – conferences, negotiations and motions (including Summary Judgment) … Internet role includes: courts require electronic recordation, e-meetings

Phase V: Trial/ Hearing (if necessary)-- formal process that allows both sides the opportunity to present their case… Internet role: present evidence and witnesses via the Internet, file motions electronically

Phase VI : Settlement  -- The settlement will be announced by a judge after careful consideration of everything revealed during the trial phase … Internet role includes filings of proposed content for judge’s consideration (e-filed)

Phase VII : Appeal (if necessary) dispute the outcome of the case -- Mandatory appellate division electronic files for all case types (1/1/2018)

Discussion point – A trial court decision is not the end of the litigation – it is just the beginning. In New Jersey, after a trial court judge renders a decision, either party has a right to file an appeal with the Appellate Division of New Jersey. Thereafter, on occasion, the seven Justices of our New Jersey Supreme Court may, either by choice or by constitutional mandate, decide all or some of the issues presented to the Appellate Division.

Types of Pleadings -- Litigation can generate multiple kinds of documents that technically can be considered pleadings. The only pleadings we consider here are those that begin the litigation: the complaint, the answer, third party complaints, and related pleadings to filing an action.

Complaints, Answers, Counterclaims, Third Party Complaints

Pleadings initiate the litigation. The complaint in a fact pleading will states the facts that comprise the claim(s) in the case and request the court to provide an enforceable remedy. The complaint gives notice to the defendants as to what is at issue in the case, and provides a context for answering and defending against the claim.

The answer is the response to the complaint. The defendants will file an answer that may admit some of the allegations, deny others, or offer no knowledge of their truthfulness. The defendant will use the answer to offer any defenses, and may file counterclaims against the defendants. The defendant may sue third parties for indemnification via a third-party complaint.

The function of the pleadings is to give all of the parties and the court notice of the claim, the law that supports or defeats that claim, and the respective positions of the parties with regard to the claim.

Review Text Topics … Chapters 11 – 20 …

Please note that the numbers which follow refer to chapters in 101 Things You Need To Know About Internet Law by Jonathan Bick (Random House 2000) copies in Library

11. Trademark names and e-linking are subject to legal scrutiny ; 12. Internet banking is legal; 13. Unencrypted Internet communication is not usually protected by attorney-client privilege; 14. Internet business methods can be patented; 15. License don't sell-Internet domain names; 16. Internet privacy rights are scarce; 17. E-commerce data collection is subject to legal limitations ; 18. The Constitution limits a court's ability to make an Internet site owner subject to an out-of-state suit; 19. Internet repossessions are legal; 20. Internet service providers (ISPs) are protected from legal liability for certain actions of their clients

III January 25 State and Federal Civil Internet Litigation Rules and Regulations

Federal Rules of Civil Procedure

Federal Rules of Civil Procedure regulates evidence production thus govern the discovery of electronic information.

Rule 26,: Duty of Disclosure, states that all parties in litigation must disclose "a copy of, or description by category and location of, all documents, data compilations, and tangible things in possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings" FED. RUL. CIV. PROC. 26(a)(1)(B). Rule 26 also provides the scope of discovery: "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things." FED RUL. 26(b)(1). Rule 26 also defines discovery limits: "The frequency or extent of use of the discovery methods . . . shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive . . . (iii) the burden or expense of the proposed discovery outweighs its likely benefit . . ." FED. RUL. CIV. PROC. 26(b)(2). In addition, Rule 26 allows a court to authorize a protective order to protect a party from "annoyance, embarrassment, oppression, or undue burden or expense" FED. RUL. CIV. PROC. 26(c).

Rule 34, Production of Documents states that any party may serve on any other party a request (1) to produce . . . designated documents (including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form)" FED. RUL. CIV. PROC. 34(a). A 1970 amendment created this description of "documents" to make clear that Rule 34 applies to electronic evidence. Advisory Committee Notes, FED. RUL. CIV. PROC. 34(a). The advisory notes also confirm that the producing party may be responsible for translating the information into a form readable to the discovering party.

Federal Rules of Evidence Rule 408. Compromise Offers and Negotiations -- (a) Prohibited Uses and (b) Exceptions.

Elements of a Pleading -- The Caption - The common elements consist of the names of the parties and their status (plaintiff, defendant, etc.), the court in which the case is to be tried, and the docket number.  The initial complaint will not have a docket number until one is assigned by the clerk’s office at the time of filing.  All subsequent pleadings and case filings will use the assigned number in the caption.  Courts may require additional information to appear on the page.  These additional requirements vary from jurisdiction to jurisdiction.

 Court rules, however, can be very specific about the information that appears in the caption and how it is to be formatted.  Here is an example from the California Rules of Court:

Rule 2.111. Format of first page

The first page of each paper must be in the following form:

(1)In the space commencing 1 inch from the top of the page with line 1, to the left of the center of the page, the name, office address or, if none, residence address or mailing address (if different), telephone number, fax number and e-mail address (if available), and State Bar membership number of the attorney for the party in whose behalf the paper is presented, or of the party if he or she is appearing in person. The inclusion of a fax number or e-mail address on any document does not constitute consent to service by fax or e-mail unless otherwise provided by law.

(2)In the first 2 inches of space between lines 1 and 7 to the right of the center of the page, a blank space for the use of the clerk.

(3)On line 8, at or below 3 1/3 inches from the top of the page, the title of the court.

(4)Below the title of the court, in the space to the left of the center of the page, the title of the case. In the title of the case on each initial complaint or cross-complaint, the name of each party must commence on a separate line beginning at the left margin of the page. On any subsequent pleading or paper, it is sufficient to provide a short title of the case (1) stating the name of the first party on each side, with appropriate indication of other parties, and (2) stating that a cross-action or cross-actions are involved (e.g., "and Related Cross-action"), if applicable.

(5)To the right of and opposite the title, the number of the case.

(6)Below the number of the case, the nature of the paper and, on all complaints and petitions, the character of the action or proceeding. In a case having multiple parties, any answer, response, or opposition must specifically identify the complaining, propounding, or moving party and the complaint, motion, or other matter being answered or opposed.

(7)Below the nature of the paper or the character of the action or proceeding, the name of the judge and department, if any, to which the case is assigned.

(8)Below the nature of the paper or the character of the action or proceeding, the word "Referee:" followed by the name of the referee, on any paper filed in a case pending before a referee appointed under Code of Civil Procedure section 638 or 639.

(9)On the complaint, petition, or application filed in a limited civil case, below the character of the action or proceeding, the amount demanded in the complaint, petition, or application, stated as follows: "Amount demanded exceeds $10,000" or "Amount demanded does not exceed $10,000," as required by Government Code section 70613.

(10)In the caption of every pleading and every other paper filed in a limited civil case, the words "Limited Civil Case," as required by Code of Civil Procedure section 422.30(b).

(11)If a case is reclassified by an amended complaint, cross-complaint, amended cross-complaint, or other pleading under Code of Civil Procedure section 403.020 or 403.030, the caption must indicate that the action or proceeding is reclassified by this pleading. If a case is reclassified by stipulation under Code of Civil Procedure section 403.050, the title of the stipulation must state that the action or proceeding is reclassified by this stipulation. The caption or title must state that the case is a limited civil case reclassified as an unlimited civil case, or an unlimited civil case reclassified as a limited civil case, or other words to that effect.

The Illinois Supreme Court proscribes the form of the caption for pleadings in varying ways in Rules 101 through 138 depending  on the type of action that is filed .  These, in turn, may be supplemented by the local rules of the court in which the pleading is filed.  For example, Federal Rule of Civil Procedure 10 describes the form of pleadings in the federal courts generally while local rule 5.2 of the Northern District of Illinois describes the form of documents that are filed in the District. 

Review Text Topics … Chapters 21 – 30

21. Protect domain names by securing trademark rights first
22. An Internet service agreement has some standard elements.
23. Legal notices that are properly placed on a web site will minimize or eliminate legal liability
24. Changes in trademark laws have resulted in changes in domain name dispute outcomes
25. Internet telemedicine patients have fewer rights than traditional patients
26. Applying suitability legal concept to e-stock brokers
27. Current laws do not fully protect the privacy of information in the possession of an Internet service provider
28. Workplace privacy is nearly nonexistent
29. The Internet may soon be deemed a public accommodation for the visually impaired
30. Personal jurisdiction are in flux with respect to the Internet

IV February 1 Internet Litigation Applications to Jurisdiction and Rules

1. “Application of Bankruptcy Law to Internet Assets” New Jersey Law Journal February 20, 2017 http://www.bicklaw.com/ApplicationofBankruptcyLawtoInternetAssets.htm

2. "Improper Internet Use Exacerbates Malpractice Exposure" New Jersey Law Journal January 20, 2015; http://bicklaw.com/Publications/Malpractice.htm

3. "How Internet Use Can Ameliorate Mass-tort Litigation Difficulties" New Jersey Law Journal December 16, 2013; http://bicklaw.com/Publications/E-masstortlitigation.htm

Subject Matter Jurisdiction -- The  U.S.  Constitution  vests  in Congress  the  power  to  confer subject matter jurisdiction in Article III courts.  This jurisdiction is set forth in Article 28 of the U.S. Code, the Judicial Code. Because subject matter jurisdiction is  legislatively determined, it cannot be  waived  by  the  parties.    The  extent  of  a  party’s  control  over  federal jurisdiction  is  limited  to  the  wording  of  its  well-pleaded  complaint  or counterclaim

Elements of a Cause of Action -- Stating a Claim

As noted, the Federal Rules of Civil Procedure require that a pleading setting forth the claims in a complaint must contain a short and plain statement of the claim. 

State procedural requirements, whether through notice pleading or fact pleading, tend to favor similar clarity in stating the allegations. 

Plaintiffs can plead inconsistent claims.  A good example is when a plaintiff seeks money damages for work the plaintiff performed under a contract.  The defendant may allege that there was no contract.  In these circumstances the plaintiff would likely include a second count seeking recovery under the theory of quantum meruit.  The same facts are present, but the quantum meruit claim allows for recovery for the value of the actual work performed in the absence of a contract.

A complaint for breach of contract, for example, must alleged at least three elements to state a claim: (1) there is a valid contract between the parties; (2) there was a breach of the terms of the contract; and (3) there were damages as a result of the breach.

The plaintiff may plead ultimate facts, such as “a valid contract existed between the plaintiff and defendant.” That statement, however, must be supported by other factual allegations in the complaint.  Otherwise it is considered a conclusion of law that must be proved at trial irrespective of the fact that it is alleged.  Evidence needs to be introduced that shows that more likely than not, a contract existed.

Elements of A Cause Of Action

Stating a claim for breach of contract will depend on the type of contract that is at issue in the litigation.  A breach will have different consequences that can generate different kinds of relief.  

Statutes and Court Rules That Affect the Drafting Process

Every state has a code of civil procedure, and every state has a set of rules promulgated by the state Supreme Court that governs trial practice in the state courts.  A civil practice statute, for example, may state that all civil actions shall be initiated in the form of a complaint. 

State Supreme Court rule will detail the form and content of a complaint.

Trial courts may have their own rules, called local rules that act as operating procedures for that court. 

State court systems are typically divided into subdivisions based on subject, the type of relief the grant, or the amount claimed in the prayer for relief.  Probate court, for example, handles matters relating to estates.  A family court handles matters relating to divorce and child custody.  Small claims court hears claims that are worth less than $500 or another slight amount.  Some court divisions will hear cases worth less than $50,000 whereas a claim worth more than that will be heard in another division.

Counsel determines which court is appropriate for the subject and relief sought.

The Judicial Code of the United States is contained in Title 28 of the U.S. Code.  Various sections of Title 28 will define the jurisdictional elements that are necessary for filing a case in the federal District Courts. 

Every complaint filed in federal District Court must contain a jurisdictional statement that tells the court what authority allows it to hear the case.  The defendant can challenge the jurisdictional statement as one way of defeating the complaint.  The Federal Rules of Civil Procedure state all aspects of how the litigation will be conducted. 

Pleadings are referenced in Rules 7 through 12.  Similar to state trial courts, a United States District Court will have local rules supplementing the Federal Rules as to its operating procedures. 

Statutes, rules, and local rules for filings in state and federal cases will specify how service of the complaint on the defendant is to take place.  The combination of these will specify the procedure for stating and filing a claim in the various courts.

Fact Pleading vs. Notice Pleading

Courts generally require plaintiffs to use one of two methods to express a cause of action via the complaint.  These are fact pleading and notice pleading.  State civil codes and rules will require one or the other.  Many states use fact pleading, which requires plaintiffs to plead all facts supporting the cause or causes of action. 

The federal courts use the more relaxed standard of notice pleading.  The Federal Rules of Civil Procedure, specifically Rule 8(a) requires that a complaint to set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.”

The notice standard the federal courts use requires that the complaint must state enough facts for it to be plausible on its face.  The complaint should also state at least the prima facie elements of the cause of action to give the defendant the ability to respond.

 Federal Rule 12(e) allows for the defendant to file a motion for a more definite statement when the complaint is too vague.  The motion must be filed before filing a responsive pleading (the answer).  The alternative to attacking a complaint is to file a 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.  There are similar procedures in most state codes and rules to test a complaint at the beginning of the litigation.

Some state courts have found that fact pleading is more efficient in that it narrows the specifics of the claim.  As a result, discovery is also narrowed to the issues raised by the alleged facts.  Notice pleading, on the other hand, gives the court and the parties more latitude in discovering materials related to the claim.

 Federal Rules of Civil Procedure

Rule 5.2. Privacy Protection For Filings Made with the Court  -- (a) Redacted Filings; (b) Exemptions from the Redaction Requirement; (c) Limitations on Remote Access to Electronic Files; (d) Filings Made Under Seal (e) Protective Orders; (f) Option for Additional Unredacted Filing Under Seal; (g) Option for Filing a Reference List; and (h) Waiver of Protection of Identifiers..

Review Text Topics … Chapters 31 – 40 … 31. The Internet can provide legal notice; 32. Consider European comparative advertising legal limitations when preparing Internet advertisements; 33. Commercial Internet web site content is protected by the First Amendment; 34. Internet auctions result in legal contracts; 35. Internet transactions can result in "choice-of-law" difficulties; 36. U.S. legal limitations apply to international Internet services; 37. International law limits use of Internet digital signatures; 38. State laws limit physicians' use of the Internet; 39. European Internet signature legal limitations differ among countries; 40. International laws extend Internet service providers' content liability

V February 8 Elements of Internet Litigation for Trademarks, Copyrights & Patents

1. “Copyright Law Change Endangers Internet Sites” New Jersey Law Journal December 26, 2016 http://www.bicklaw.com/Publications/CopyrightLawChangeEndangersInternetSites.htm

2. "Copyright Law Protects Big Data" Internet Law and Strategy, May 5, 2015 http://www.bicklaw.com/Publications/BigData.htm

3. "Internet Copyright Troll" Internet Law & Strategy Volume 21, Number 2 • November 2014 http://www.bicklaw.com/Publications/InternetCopyrightTrolls.htm

Here is an example of a local rule from the Northern District of Illinois that affects the filing of a complaint in a patent or trademark case:

 Notice of Claims Involving Patents or Trademarks

In order to assist the clerk in complying with the requirement to notify the commissioner, any party filing a pleading, complaint, or counterclaim which raises for the first time a claim arising under the patent and trademark laws of the United States (U.S. Code, Titles 15 and 35) shall file with the pleading, complaint, or counterclaim a separate notice of claims involving patents or trademarks. That notice shall include for each patent the information required by 35 U.S.C. §290; and for each trademark the information required by 15 U.S.C. §1116(c).

Patent Office has special litigation forum --- U.S. Patent and Trademark Office’s patent review proceeding, known as inter parties review (IPR)

Review Text Topics … Chapters 41 – 50 41. Most proposed Internet legislation is not likely to be implemented ;42. Digital certificates do not usually provide significant legal rights ;43. Internet loans are lawful ;44. Internet insurance addresses new risk ;45. Internet wagering is generally illegal ;46. Some Internet content is legally free to use ;47. Internet nondisclosure agreements have unique features ;48. Internet investment advisers require special legal precautions ;49. Taxation of European e-commerce differs among countries ;50. Using Internet materials may increase legal risk
VI February 15  Elements of Speech and Censorship Internet Litigation

1. "Cloud Content Is Copyright Protected; But Its Providers Are Not" New Jersey Law Journal July 27, 2015; http://www.bicklaw.com/Publications/CloudContentIsCopyrightProtected.htm

2. Combating Gripe Site Difficulties" New Jersey Law Journal February 25, 2015 http://www.bicklaw.com/Gripesite.htm

3. “Old vs. New: Bloggers Want Same Rights as Mass Media" New Jersey Law Journal August 22, 2013; http://bicklaw.com/oldblogers.htm

4. "Identifying Unnamed Online Speakers Just Got Easier" New Jersey Law Journal May 13, 2013; http://www.bicklaw.com/IDE-speakers.htm

Right to Speak Anonymously 

- In re Petition of MP

The owner of a country club located filed anonymously a petition for pre-litigation discovery in Texas, seeking to identify the anonymous blogger who posted Country Club Sucks blog, claiming defamation The blogger moved to quash arguing that the petitioner had not justified filing suit in Texas over comments on a blog about a California country club, and that in any event the country club owner had not produced sufficient evidence to overcome the right to speak anonymously. After allowing the petitioner to amend her petition to meet the standard, the trial judge quashed the subpoena. --- United States Constitution, First Amendment- Communications Decency  Act,  47 USC § 230; and Texas Rules of Civil  Procedure Rule 202

 - Dendrite International v. Does 1 through 14

Company providing computer  software sued four anonymous posters, two of them current or former employees, alleging defamation, disclosure of trade secrets, and breach of employment contract! After Court entered order protecting these two posters, the company appealed denial of subpoena regarding one of the posters -- First Amendment protects the right to speak anonymously -- McIntyre v. Ohio Elections Comm., 514 U.S. 334 (1995)

Review Text Topics … Chapters 51 – 60 … 51. E-business is particularly susceptible to nine legal perils; 52. International program license agreements are important for e-commerce outside of the U.S; 53. The responsibility for content control by Internet service providers varies in Europe; 54. Some countries legally protect personal data stored on the Internet; 55. Worldwide Internet e-data legal protection varies; 56. Internet signatures can be legally acceptable; 57. Internet patents are subject to legal testing; 58. Internet proxies are lawful; 59. Internet intellectual property transfers must apply state law.... ; 60. Internet message encryption laws diverge

VII February 22 Elements of Internet Torts Internet Litigation

1. "Using Communication Decency Act and Promissory Estoppel to Combat Internet Defamation" New Jersey Law Journal April 7, 2016; http://www.bicklaw.com/CDA.htm

2. "Improper Internet Use Exacerbates Malpractice Exposure" New Jersey Law Journal January 20, 2014; http://www.bicklaw.com/Publications/Malpractice.htm

3.“Technology Can Cap Internet Facilitators’ Liability" e-Commerce Law & Strategy February , 2012; http://www.bicklaw.com/Publications/Techcancap.htm

Computer Systems:

    Virus Damage

    Hacking Damage

    Trespass to secured computers and data thereof

    Counterfeit Access Device

Attacks on Businesses:

    Unsolicited Commercial E-mail (SPAM)

    Intentional Interference with a business relationship

    Unfair Competition

    Internet Defamation

Personal Attacks:

    Identity Theft

    Unsolicited Commercial E-mail (SPAM)

    Consumer Fraud/Deceptive Business Practices

    Unfair Competition

    Internet Defamation

    Intentional Infliction of Emotional Distress

    Cyber stalking

Tort Complaint -- based on the article Cause of Action against Accountant for Negligent Performance of Professional Services  --   The prima facie case for negligent performance by an accountant has four elements:  1) the defendant owed the plaintiff the duty of care, 2) the standard of care required, 3) the details that show how the defendant violated that standard of care, and 4) that the violation of the standard (negligence) led to a loss by the plaintiff.

Elements --  An allegation identifying plaintiff and establishing Internet site;  An allegation identifying the defendant and his offer  to provide Internet site services;  An allegation that establishes the professional relationship between plaintiff and defendant and defendant’s  agreement to provide Internet site services ( perhaps a screen shot of Internet Agreement);  An allegation that the defendant failed to perform as measured against that standard of care;  An allegation that detailing the mistakes in the defendant’s work for the plaintiff;  An allegation that detailed the loss incurred by the plaintiff due to defendant’s negligent work --- The prayer for relief--  Damages based on the monetary loss incurred by the plaintiff due to defendant’s negligent work

Review Text Topics … Chapters 61 – 70 61. Internet chemical purchases are subject to recipients' jurisdictional rules 62. International e-privacy laws are primarily voluntary 63. International e-copyright laws are in flux 64. Clicking "I agree" has different meanings around the world ... 65. Global e-buyers beware 66. International e-broadcasting legal rules are country specific.. 67. Special legal liability is associated with e-promotions 68. Typical domain name cease-and-desist letter and an appropriate reply 69. Reply to domain name cease-and-desist letter 70. FCC has begun to regulate the Internet

VIII March 1 State and Federal Criminal Internet Litigation Rule and Regulations

1. “Internet Content Changes White-Collar Criminal Litigation Tactics”  New Jersey Law Journal  August 8, 2016 http://www.bicklaw.com/Publications/InternetContentChangesWhite-CollarCriminalLitigationTactics_000.htm  

2. "Courts Allow Broader Search Warrants for Internet Crimes, New Jersey Law Journal August 10, 2015; http://www.bicklaw.com/SearchWarrants.htm

3."Internet Copyright Infringement: An Emerging White-Collar Crime Internet" August 7, 2014 http://www.bicklaw.com/Publications/InternetCopyrightInfringement.htm

4. “Some States Criminalize Internet Identity Theft" New Jersey Law Journal November 18, 2013; http://bicklaw.com/SomeStatesCriminalizeInternetIdentityTheft.htm

5. "Internet Crime and the Elderly" New Jersey Law Journal August 1, 2011 http://www.bicklaw.com/Publications/e-Elderlaw.htm

6. “A Hole in the CAN-SPAM Act” New Jersey Law Journal May 10, 2004 http://www.bicklaw.com/Publications/hole_in_CAN-SPAM.htm

Federal cybercrime statute --  the Computer Fraud and Abuse Act.

Computer Systems:

    Virus Damage

    Hacking Damage

    Trespass to secured computers and data thereof

    Counterfeit Access Device

Attacks on Businesses:

    Unsolicited Commercial E-mail (SPAM)

    Intentional Interference with a business relationship

    Unfair Competition

    Online Defamation

Personal Attacks:

    Identity Theft

    Unsolicited Commercial E-mail (SPAM)

    Consumer Fraud/Deceptive Business Practices

    Unfair Competition

    Internet Defamation

    Intentional Infliction of Emotional Distress

    Cyber stalking

Review Text Topics … Chapters 71 – 80
71. Selling wine via the Internet is lawful
72. E-commerce infrastructure builder contracts require special elements
73. Forty-three state laws recognize digital signatures
74. The Federal Trade Commission has begun to regulate the Internet
75. The Internet is a litigation tool
76. The Internet is an evidentiary source
77. Internet legal evidence results in new legal difficulties
78. Promotion agency agreements for Internet services are advisable
79. e-mail is legally discoverable
80. Internet crimes and violations are emerging

IX March 8 Elements of Death and Taxes Internet Litigation

1. "Who Inherits Your E-mail?" New Jersey Law Journal June 5, 2006; http://www.bicklaw.com/Publications/InheritE-mail.htm

2. Inheriting Deceased's E-mail New Jersey Law Journal March 7, 2005 http://www.bicklaw.com/Publications/InheritingDeceasedsE-mail.htm

3. Implementing e-Commerce Tax Policy, Harvard Journal of Law and Technology Volume 13, Number 3 Summer 2000 13 Harv. J. Law & Tec. ___. Spring 2000. http://www.bicklaw.com/Publications/e-commerce_tax_policy.htm

State and local tax trials related to Internet transactions

The U.S. Tax Court has issued a warning about tax scams concerning unsolicited phone calls, emails, or other communications from individuals fraudulently claiming to be from the Tax Court, Internal Revenue Service (IRS), or other Federal government agencies and making demands such as for your appearance

Review Text Topics … Chapters 81 – 90
81. Reducing e-law risks is possible
82. Dot.com liability insurance contracts address legal risk
83. Copying, printing, and redistributing e-data are generally lawful
84. How can I protect my name on the Internet? Register it with many variations
85. Additional legal activity may be required to protect certain e-names
86. What can be done if someone links to a web site without permission?
87. Using the Internet to find Internet law is easy but may be inaccurate
88. Legally assigning Internet content usually requires a customized contract
89. Internet hijacking is unlawful without consent
90. Unauthorized framing is usually unlawful

X March 22 Elements of Electronic Commerce Litigation

1. "Internet Transactions Unlikely Public Finance Source" New Jersey Law Journal October 29, 2015; http://www.bicklaw.com/Publications/UnlikelyPublicFinanceSource.htm

2. "Internet Director and Shareholder Meetings Be Held via Internet?" New Jersey Law Journal April 8, 2015 http://www.bicklaw.com/Publications/InternetDirSHmeetings.htm

3. "Enforceable Browse Wrap Contracts" New Jersey Law Journal September 14, 2009; http://www.bicklaw.com/Publications/browseWrap.htm

4. AMERICANS WITH DISABILITIES ACT AND THE INTERNET Copyright (c) 2000 Albany Law Journal of Science & Albany Law Journal of Science & Technology 2000; 10 Alb. L.J. Sci. & Tech. 205 http://www.bicklaw.com/Publications/ADA.htm

The following example is based on the article Cause of Action for Breach of Contract for Construction or Repair of Internet site.  The prima facie case for breach of a contract for house repair has three elements:  1) the existence of a valid contract, 2) compliance by the plaintiff with the terms of the contract, and 3) the breach by defendant for failing to perform according to the terms.

Allegations include:     An allegation identifying plaintiff and establishing of Internet site;  An allegation identifying the defendant and describing defendant’s Internet business;   An allegation describing the circumstances that establish the e=commerce contract and noting that a screen shot is attached to the complaint as an exhibit;  An allegation describing plaintiff’s compliance with the contract terms including details of that compliance;  An allegation of the defendant’s actions that constitute the circumstances of the breach; and  An allegation that the breach is material and does not constitute substantial compliance with the terms of the contract

The prayer for relief includes alternative types of relief.  These include:    Money damages to either repair the Internet site,    Or compensate the plaintiff for the loss of value based on the breach,     Or rescind the contract and return plaintiff’s consideration (money paid to defendant for the work)

The plaintiff will have to prove the terms of the contract, how the defendant failed to conform to those terms, and comparisons of the condition of the house before and after the performance of the negligent work.

Review Text Topics … Chapters 91 –100
91. Image (IMG) links normally increase legal liability
92. Offering securities through the Internet has legal limitations
93. E-notices help protect copyrights
94. Internet publicity releases help to limit legal liability
95. E-content writer's contract may be a work-for-hire agreement
96. Internet employment services agreements usually protects one party
97. Securities brokers' obligations apply to clients' Internet trading
98. Web Trust seal providers are liable to the public
99. Obscenity and indecency e-content regulation on the Internet is in flux
100. Some public access to the Internet is legally limited

XI March 29 International Internet Litigation Rules and Regulations

1. "International Internet Law Suffers Growing Pains" New Jersey Law Journal January 6, 2015; http://bicklaw.com/Publications/E-growningpains.htm
2. "Integrating Trans-Atlantic Internet Medical Law" New Jersey Law Journal February 4, 2013; http://www.bicklaw.com/Publications/IntegratingTrans-AtlanticInternetMedicalLaw.htm
3. Protecting Domestic E-Commerce" May 31, 2010 New Jersey Law Journal http://www.bicklaw.com/Publications/e-import.htm
4. "Overseas Courts Limit American Internet Speech" New Jersey Law Journal July 3, 2006; http://www.bicklaw.com/Publications/OverseasCourtsLimitAmericanE-Speech.htm
5. Course Materials 4 - Overseas Attorney View of E-Speech Restrictions -- response to "Overseas Courts Limit American Internet Speech" New Jersey Law Journal July 3, 2006;
6. Export Controls
The international transfer of information from one nation to raises the issue of prohibiting such information to certain countries to achieve national goals. Most frequently, the objective of export regulation is to protect national military security. Export controls are most readily defensible when there is a clear relationship between the high technology product and military applications. Because Internet technology can often be used for military purposes, said transfer raises national security issues.
Export Administration Act of 1979 - broadest application. The Act is administered through the Export Administration Regulations (EAR) by the Bureau of Export Administration (BXA) within the Commerce Department. These regulations govern the vast majority of dual-use high technology equipment.
7. Import Controls
8. Europe / Asia / America
9. "The Internet and Immigration" New Jersey Law Journal June 27, 2011; http://www.bicklaw.com/Publications/e-Immigration.htm

Discussion point --- Agreements relevant by analogy - The Law of the Sea Convention defines the rights and responsibilities of nations with respect to their use of the world's oceans and, establishing guidelines for businesses.  -- Antarctic Treaty establishes rules for exchanging information from scientific investigations and promotes cooperation between States --- Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies conveys the idea that spaces may be available to all members of the international community and cannot be appropriated.

Discussion point -- Applicable law --  instruments have been adopted at the EU level to deal with the most crucial matters related to private international law (namely the Brussels and Rome Regulations).

 Rome I is a regulation which governs the choice of law in the European Union. The European Parliament and the European Council adopted Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I Regulation). The adoption of Regulation (EC) No 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations (Rome II Regulation) has enabled the creation of a uniform set of conflict-of-law rules for non-contractual obligations in civil and commercial matters. It thus seeks to improve legal certainty and the predictability of the outcome of litigation.

 The Brussels Convention is a set of rules regulating which courts have jurisdiction in legal disputes of a civil or commercial nature between individuals from different member states of the European Union (EU) and the European Free Trade Association (EFTA). It has detailed rules assigning jurisdiction for the dispute to be heard and governs the recognition and enforcement of foreign judgments.

Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters (Lugano Convention)

 The Lugano Convention extends Brussels I to states that are not eligible for Brussels I participation. Its effects are materially the same as the 2001 Brussels Regulation and it governs issues of jurisdiction and enforcement of judgments between the European Union member states and the European Free Trade Association countries

Review Text Topics … Chapters 101 ----- 101.Taxes apply to Internet transactions

XII April 5 Alternative Internet Dispute Procedures

Dispute Resolution is an alternative to the traditional legal process, which usually involves a court, judge, and possibly a jury to decide the dispute. Online Dispute Resolution can involve the parties in mediation, arbitration, and negotiation. ... These organizations are called Online Dispute Resolution Providers.


        Automated negotiation

        Assisted negotiation

       Expedient Non-Adjudicative Online Resolution


         Online arbitration

        The Uniform Domain Names Dispute Resolution Policy (UDRP)

       Charge backs

The European Small Claims Procedure


XIII April 12 Student Presentations & special topics

Special topics and begin Class Presentations of Final Work Product (10 minutes each) … peer critique

1. Litigating Workplace Injuries in a Virtual Office" New Jersey Law Journal October 28, 2014 http://www.bicklaw.com/E-workplace.htm

2. "Applying Technology to the Business of Health Care" New Jersey Law Journal April 30, 2012; http://www.bicklaw.com/Publications/E-BusinessofHealthcare.htm

3. Matrimonial Lawyers Have a New Tool New Jersey Law Journal January 3, 2005 http://www.bicklaw.com/Publications/e-MatrimonialLaw.htm

4. RIAA Suits The Internet Newsletter September 26, 2003 http://www.bicklaw.com/Publications/RIAA_Suits.htm

5. The Recording Industry Association of America Sues Its Members' Customers New Jersey Law Journal November 3, 2003 http://www.bicklaw.com/Publications/E-download_suits.htm

6. Internet Charity Registration Requirements New Jersey Law Journal May 9, 2005 http://www.bicklaw.com/InternetCharityRules.htm

XIV April 19 Student Presentations & special topics FINAL WORK PRODUCT DUE

Additional special topics and completion of Class Presentations of Final Work Product (10 minutes each) … peer critique

Final papers must be handed in on the last day of Class