Thursday, September 6: David Vladeck, Director of the Bureau of Consumer Protection, Federal Trade Commission 

Attendance at this talk is encouraged but optional.
2:15 to 3:30 pm – Warren Room

President Obama’s Federal Trade Commission has taken an assertive posture in several areas of consumer law.  The Commission has extracted record-setting fines for privacy violations, endorsed a Do-Not-Track mechanism for internet advertising, has brought lawsuits against marketers using false and unsubstantiated health claims, and has aggressively opposed pay for delay agreements where brand name drug manufacturers pay generic drug makers to not enter the marketplace.  Professor David Vladeck (on leave from GULC), the Director of the Commission’s consumer protection efforts, will discuss the agency’s record in conversation with UC Berkeley’s consumer protection and privacy experts: Professors Ted Mermin, Deirdre K. Mulligan and Jennifer M. Urban (moderating).

Co-sponsored by Berkeley Center for Law & Technology, Berkeley Technology Law Journal, Consumer Advocacy and Protection Society, Universities Allied for Essential Medicines and Boalt Healthcare & Biotech Law Society.

This event is free and open to the public, but registration is required. Visit the conference page to register and get more information.

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Week 3

Monday, September 10:  Freedom of Expression:  

• Ward v. Rock
• Brandenburg
• Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (2000) (excerpts)
• Optional: Eugene Volkh, “Crime Facilitating Speech” 57 Stanford Law Review 1095 (2005) excerpts
  • What is speech?
  • How does it relate to the concept of information?
  • What is non-expressive conduct?
  • How do computers complicate this?
  • What concepts does the Internet complicate in these cases?

Wednesday, September 12:  Freedom of Expression

• Krishna v. Lee
• UNITED STATES V. AMERICAN LIBRARY ASSN., INC. (02-361) 539 U.S. 194 (2003) (plurality opinion). [DOC]
• Lloyd v. Tanner 407 U.S. 551 (1972)
• MacKinnon, Rebecca. “WikiLeaks, Amazon and the new threat to internet speech.” Special to CNN, December 3, 2010 [HTML]
  • How does physical space relate to expressive freedom?
  • What public spaces exist online?
  • Where do advocacy and protest occur online?
  • Who owns those online venues?
  • What does this mean for freedom of expression?

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Week 4

Monday, September 17: Privacy a non-US perspective
Guest lecture, Malcolm Crompton, Managing Director
Information Integrity Solutions, past-Privacy Commissioner of Australia (1999-2004)
Slides from Lecture: UC Berkeley 17 Sep 2012

• OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data (Parts 1-5)
• The Global Changing Privacy Landscape

Wednesday, September 19: Privacy US perspective

• U.S. v. Jones, 132 S.Ct. 945 (2012). Read the following excerpts according to your last name:
  • Last names A-I  Opinion (Scalia)
  • Last names J-N  Sotomayor Concurrence
  • Last names O-Z  Alito Concurrence
• Listen to the oral argument http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=10-1259
• or
  If you would prefer read the transcript (I would suggest you listen though):
  http://www.supremecourt.gov/oral_arguments/argument_transcripts.aspx
• 18 USC 2701-2703
• Refer to definitions from 18 USC 2510 as needed to understand.
  • What does the 4^th A protect?
  • What does it protect in public places?
  • Under what standard can the government access your email from your electronic communications service provider?
  • What if your ISP can access your email for purposes other than storage and processing?
  • Under what standard can the government access search terms you enter?
  • How is a search engine classified under the statute?
  • Under what standard can government access location information held by an electronic communication service provider?

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Week 5

Monday, September 24: Consumer Protection and Security

• FTC Policy Statement on Deception [PDF]
• FTC Policy Statement on Unfairness [PDF]
• FTC Statement on Data Security [PDF]
• In the Matter of Eli Lilly [PDF]
• In the matter of CardSystems [PDF]
• California Office of Privacy Protection’s Recommended Practices under the Security Breach Notice law: Read pages 5-16 [PDF]

Wednesday, September 26:  Contracts and Terms of Service (TOS)

• Pro-CD v. Zeidenberg, 86 F.3d 1447 (1996) [HTML]
• Alan Charles Raul, Edward McNicholas, Colleen Theresa Rutledge, and Adam Rusnak, End of the Notice Paradigm?: FTC’s Proposed Settlement Casts Doubt On the Sufficiency of Disclosures in Privacy Policies and User Agreements, 8 PVLR 1070 (2009) [PDF]

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Week 6

Monday, October 1: Privacy— Consumer Protection Approaches
Guest Lecturers: Will DeVries, Privacy Counsel and Jess Hemerly, Senior Policy Analyst, Google

Will DeVries is Privacy Counsel for Google, advising Google’s product teams on privacy legal issues worldwide. He previously worked for Google in Washington, DC as Policy Counsel on regulatory and legislative issues ranging from social networking to online advertising to government access to user data. Will also taught Information Privacy Law and E-commerce Law at the George Washington University Law School from 2007 to 2010. He speaks regularly on privacy issues, and irregularly on other issues ranging from defamation to copyright. Prior to Google, Will worked in the Communications, Privacy and Information Law group at WilmerHale LLP.  Will is a graduate of Princeton University and the University of California, Berkeley School of Law. Will lives in Oakland with his wife, Joyce, and twin sons, age 4.

Born and raised in eastern rural Pennsylvania, Jess Hemerly has resided in the Bay Area for the last eight years. A former research editor and manager at Palo Alto’s Institute for the Future, Jess is currently Senior Policy Analyst on the central public policy team at Google. As a freelance writer and cultural critic, Jess’s writing has appeared in MAKE, The Onion, 7×7, and on Boing Boing, AlterNet, and several local music blogs. In 2009, Jess was nominated for a Webby award in the “Website: Weird” category for a blog she co-created, Sad Guys on Trading Floors. She has served as an intern in President Clinton’s post-presidential office in Harlem. Jess received her BA in Politics from NYU and her Master’s in Information Management and Systems from UC Berkeley’s School of Information. In 2011, she earned the I School’s James R. Chen award for outstanding final project in Information Research for her master’s thesis, “Making Metadata: The Case of MusicBrainz.”

• Facebook consent decree
• In the Matter of Google. Read the Agreement, Complaint, Exhibits A-D, and Concurring Statement[all links PDF]
• Optional:
  • In the Matter of Sears Holdings Management Corporation (order) [PDF]
  • In the Matter of Sears Holdings Management Corporation (complaint) [PDF]
  • Lessons from the Facebook settlement (even if you’re not Facebook)
  • The FTC’s Settlement with Facebook: Where Facebook Went Wrong

Wednesday, October 3: Privacy through Design
Guest Lecture: Jennifer King

• Deirdre K. Mulligan and Jennifer King. “Bridging the Gap Between Privacy and Design.” University of Pennsylvania Journal of Constitutional Law, Vol. 14, Issue 4, 2012. Pages 1-17 (989-1005), 31-38 (1019-1026)
• The Philosopher Whose Fingerprints Are All Over the FTC’s New Approach to Privacy, Alexis Madrigal, The Atlantic, 3/29/12
• FTC Privacy Report. Pages 22-27 (actual page numbers in report; may not be the same as in the PDF)
• FTC vs. Commerce Planet. Skim pgs. 1-9, 18-31.
  • How does networked space challenge privacy?
  • What public spaces exist online? Private spaces?

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Week 7

Monday, October 8: Copyright

• 17 USC §§ 102, 103, 106, 107, 117 (definitions of works eligible for copyright; all links HTML)
• Feist v. Rural, 499 U.S. 340 (1991) [HTML]

Wednesday, October 10: Hot News

• NBA v. Motorola, 105 F.3d 841 (1997) (§§ I and II) [HTML]

Week 8

Monday, October 15:  Reusing Other People’s “Works” — Fair Use

• Online Policy Group (OPG) v. Diebold 337 F.Supp.2d 1195 (N.D. Cal. 2004) Excerpt. [PDF]
• Perfect 10 v. Google — District Court Opinion [Google Scholar]
• Band, J., “The Google Library Project: Both Sides of the Story,” 2 Plagiary 1 (2006) [PDF]

Wednesday, October 17: Information Licensing and Consumer Protection

• Mortenson v. Timberline, 140 Wn.2d 568 (2000) [PDF]
• Williams v. AOL, 43 U.C.C. Rep. Serv. 2d. 1101 (2001) [PDF]

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Week 9

Monday, October 22: Copyright and Personal Use

• Mulligan, Han, Burstein, “How DRM Content Systems Disrupt Expectations of Personal Use” [PDF]
• The Engadget Interview: Paul Aiken, Executive Director of the Authors Guild [HTML]
• Optional: Van Houweling, Molly Shaffer, Distributive Values in Copyright. Texas Law Review, Vol. 83, p. 1535, 2005. [PDF]

Week 10

Monday, October 29: Liability for Content Created and/or Posted by Others Section 230

• 17 USC § 230 (protection for blocking/screening; link HTML)
• Fair Housing Council of San Fernando Valley, et al. v. Roommates.com LLC  (Majority Opinion Only) [PDF]
• Optional: Gillespie, Tarleton L., The Politics of ‘Platforms’ (May 1, 2010). New Media & Society, Vol. 12, No. 3, 2010. Available at SSRN:http://ssrn.com/abstract=1601487

Wednesday October 31: Liability for Content Content Created and/or Posted by Others DMCA 

• 17 USC § 512 (All)
• Refresh: Online Policy Group (OPG) v. Diebold 337 F.Supp.2d 1195 (N.D. Cal. 2004) Excerpt. [PDF]
• Optional: Urban, J., Quilter, L., “Efficient Process or ‘Chilling Effects’? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act,” Executive Summary (2006). [PDF]

Week 11

Monday, November 5: Patent Basics
Guest Lecturer: Robert Barr, Executive Director of the Berkeley Center for Law & Technology, Berkeley Law

For the following patents:

DO NOT READ the patents SKIM THEM.

• 1206ftcwirelesscom
• Hesse
• Why There Are Too Many Patents in America – Business – The Atlantic
• US8086604(search)
• US7469381(Bounce)
• US7864163(tap)
• US7844915(pinch)
• USD504889
• USD604305
• USD593087
• USD618677
• AppleSamsungVerdictSummary
• PatentLaws

Wednesday, November 7: Patent and DMCA con’t

• Explore: Google/YouTube’s ContentID tool: What is YouTube’s Content ID tool?

Week 12

Monday, November 12: NO CLASS

Veterans Day

Wednesday, November 14: DMCA and Secondary Liability 

• Viacom v. Youtube

• Liability for defective electronic information

Week 13

Monday, November 19: Technology Design and Liability Copyright

• Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) Excerpt. Read majority opinion [HTML]
• MGM Studios, Inc. v. Grokster, Ltd. 545 U.S. 913 (2005). Read majority opinion (OPTIONAL: read Justice Breyer’s concurring opinion.) [PDF]

Wednesday, November 21:Technology Design and Liability Privacy

• 18 USC § 2512 (electronic communication interception devices; links HTML)
• United States of America v. The Spy Factory, Inc. 951 F. Supp. 450; U.S. Dist. LEXIS 108 (1997). Read the first two paragraphs of the background and then section II B 1 to the end (starts bottom of page 21) [PDF]
• Federal Trade Commission, Plaintiff v. Frostwire LLC and Angel Leon, indvidually and as managing member of Frostwire LLC, Defendants. (US Disctrict Court for the Sothourn District of Florida). Case No. 1:11-cv-23643, FTC File No. 112 3041. Complaint, Final order

Week 14

Monday, November 26: Access and Authorization

• Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F.3d 1178 (Fed. Cir. 2004)
• U.S. v. Nosal, 676 F.3d 854 2012
• Optional: Kerr, Orin S., “Cybercrime’s Scope: Interpreting ‘Access’ an ‘Authorization’ in Computer Misuse Statutes,” NYU Law Rev. Vol. 78 No.5, pp. 1596-1668, November 2003

Wednesday, November 28 
Guest Lecturer Chris Conley, Technology and Civil Liberties Fellow at the ACLU of Northern California

• Courts Divided Over Searches of Cellphones: http://www.nytimes.com/2012/11/26/technology/legality-of-warrantless-cellphone-searches-goes-to-courts-and-legislatures.html
• 18 USC Sec. 2703
• Proposed amendments to Sec. 2703: http://www.judiciary.senate.gov/legislation/upload/Leahy-Substitute-HR-2471.pdf pp. 3-5
• ACLU testimony on proposed GPS Act: http://www.aclu.org/files/assets/05_17_12_aclu_gps_act_testimony.pdf
• Mobile Location Ecosystem (image): http://www.truste.com/blog/wp-content/uploads/location_ecosystem.jpeg

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Week 15

Monday, December 3: Design Patents, Software Copyright, Trade Secrecy & Non-Competes
Guest Lecturer: Chris Ridder, Ridder, Costa & Johnstone LLP

• Egyptian Goddess v. Swisa
• Lotus v. Borland, 49 F.3d 807 (1st. Cir. 1995)
• Complaint: Tetris Holding LLC et. al. v. XIO Interactive
• Jostens v. National Computer Systems
• SKIM: D305 and D677 patents from Apple/Samsung
• Design Patent Infringement – How Close Is Too Close?

Wednesday, December 5: Review

• No readings

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Week 16

Monday, December 10: Final Exam