Vol 7 No 1 - Roger Williams University School of Law

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decrease innovation.30 On the other hand, despite some exclusivearrangements, it is not clear that cable modem service providerswill gravitate toward a model that restricts consumer choice ofISPs. In other words, the market may function quite well. If thereis value in offering consumers a choice of ISPs, cable companieswill do so in order to command a higher price for their Internetconnections. Moreover, open access may actually decreaseincentives to innovate by decreasing the returns that accrue to thecable company. By involving a larger number of parties indeveloping the infrastructure, open access may enhance thechances that the industry will standardize on the best technology.On the other hand, open access may slow the development processbecause the involvement of many decisionmakers can lead todelays.Finally, wireless technology raises the question of howpolicymakers should allocate spectrum.31 The FCC assigned partsof the spectrum in the 1960s, giving large chunks to government(especially the Department of Defense) and educationalinstitutions.32 Reallocating those assignments will lead topolitical battles among competing interest groups.The World Radiocommunication Conference of 2000 endorsedefforts to “harmonize spectrum allocations regionally andinternationally.”33 A staff-level report from the FCC andDepartment of Commerce concluded, however, that seriousobstacles would hamper the United States from clearing bandsthat the Conference highlighted as suitable for third generation(3G) uses.34 Educational institutions and others already usemany of these bands, raising political, technical and economicquestions about the feasibility of re-allocating or sharing that30. Id. at 48.31. See Delivering on Digital Progress, supra note 2, at 62-63 (noting the U.S.government’s endorsement of the principles adopted by the World RadiocommunicationConference of 2000: “(1) governments may choose spectrum from any one or all of thebands identified for third generation mobile wireless (3G); (2) governments have theflexibility to identify spectrum if and when they choose; and (3) no specific technologywill be identified for third generation services,” and noting its call for support ofindustry efforts to harmonize spectrum allocations regionally and internationally); seealso Anthony Shadid, Fight Puts Airwaves at Risk, Boston Globe, Feb. 10, 2001, at A1.32. Shadid, supra note 31, at A1.33. Delivering on Digital Progress, supra note 2, at 63.34. See Aaron Pressman, White House Undercuts Spectrum Reports, The IndustryStandard, Mar. 30, 2001, available atwww.thestandard.com/article/0,1902,23258,00.html.
spectrum.35 However, the Bush administration is reportedlyseeking to distance itself from these conclusions, thus raisingquestions about what its wireless strategy will be.36The debate over how to regulate broadband technology willlikely continue as Congress considers the “Internet Freedom andBroadband Deployment Act of 2001.”37 This Act, developed inresponse to congressional concerns about impediments toconsumer access to broadband technology, aims to deregulate thebroadband services industry and promote the availability ofchoices for private users of the technology.38C. Access to Publicly Available WebsitesTwo recent cases raise the question whether a Website canprevent another from linking to it by automated means, copyingits information and extracting uncopyrighted product and pricinginformation.39 In Ticketmaster Corp. v. Tickets.com, Inc.,40 theFederal District Court for the Central District of Californiainitially dismissed Ticketmaster’s state law claim that unwantedlinking constituted a trespass to its Website, holding that theclaim was preempted by the federal Copyright Act.41 The courtnoted: “it is hard to see how entering a publicly available website35. See id.36. See id. (reporting Commerce Secretary Don Evans’s meeting with majorwireless carriers at which he dismissed the conclusions of the report).37. H.R. 1542, 107th Cong. § 1 (2001).38. See id. at § 2.39. See also Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238 (S.D.N.Y. 2000)(adopting eBay’s trespass theory and also upholding a contract where assent to itsterms was indicated by submitting a query).40. 54 U.S.P.Q. 2d 1344, 1345 (C.D. Cal. 2000) (No. 99-7654-HLH (BQRx)).41. Ticketmaster asserted a variety of causes of action against Tickets.com forsearching the Ticketmaster site, taking its information, providing that information toTickets.com’s visitors, and allowing such visitors to deep-link to the Ticketmaster site.See First Amended Complaint for Injunctive Relief and Damages, Ticketmaster Corp.v. Tickets.com, Inc., No. 99-7654 HLH (BQRx) (C.D. Cal. 2000). The district courtrefused to dismiss the complaint. See Ticketmaster Corp. v. Tickets.com Inc., 54U.S.P.Q. 2d 1344, 1345 (C.D. Cal. Mar. 27, 2000). Thereafter, Ticketmaster filed anamended complaint. See Second Amended Complaint for Injunctive Relief andDamages, Ticketmaster Corp. v. Tickets.com, Inc., No. 99-7654 HLH (BQRx) (C.D. Cal.2000). The district court refused to grant a preliminary injunction against Tickets.combased on this amended complaint. See Ticketmaster Corp. v. Tickets.com, Inc., 2000U.S. Dist. LEXIS 12987. The Ninth Circuit upheld this denial without opinion. SeeTicketmaster Corp. v. Tickets.com, Inc., 2001 WL 51509 (9th Cir. 2001).
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ROGER WILLIAMS UNIVERSITYLAW REVIEW
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ROGER WILLIAMS UNIVERSITYSCHOOL OF
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Identification StatementThe Roger W
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contract exclusion or disclaimer of
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and other laws of countries in whic
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Symposium and writes on this issue
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Indeed, the quotation contains the
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suggestive of a bill designed merel
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United States ought to adopt in lig
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the Supreme Court to reiterate in F
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United States Supreme Court quoted
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copying of “a work protected unde
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shall be null and void.65 Member st
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determining the fate of database pr
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The compilation of a database requi
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management information, including c
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one congressional witness noted:
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that were made after the initial te
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preferred language of many business
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the sui generis right mainly serves
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the Paris Convention for the Protec
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directly or indirectly.159 In other
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of resources that qualifies that po
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wish to encourage private lawsuits,
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contract.”185 While section 1405(
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The Directive will inevitably drive
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the process through which digital p
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the United States or the trade and
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patent law is the utilitarian ethic
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a work to be publicly identified as
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the United States, the power of the
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Theory one proposes to reward the a
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of intellectual property rights mus
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only such as are original, and are
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emedies set forth in section 1406.T
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eproduced, though there be no ingen
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the same, or substantially the same
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with respect to “patents of inven
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Because, in part of the joint reaso
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even by the plaintiffs today.86The
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statute: the “Limited Times” re
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head of power. It is not clear whet
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elationship of power between the Co
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history dealing with either provisi
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the parameters of the propertizatio
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the legislative power contained in
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negative pregnant that suggests tha
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scope of the Commerce Clause in the
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gave incentive for people to expres
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ejected this purported distinction
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talk, communicate or consume inform
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frameworks that will allow diversit
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that a monopolist should not seek t
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motivating force.While antitrust or
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unjustifiable anti-competitive cond
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his refusal to sell or license his
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defense and exploitation of the cop
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the information age there have been
Page 122 and 123: In response to Intel’s argument t
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Page 130 and 131: anti-competitive use of monopoly po
Page 132 and 133: certain circumstances, exempted fro
Page 134 and 135: for circumventing a technological p
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Page 138 and 139: circumventing a TPM in order to loo
Page 140 and 141: “staple article of commerce” do
Page 142 and 143: commerce.”320 Is innovation stifl
Page 144 and 145: anner advertisement company DoubleC
Page 146 and 147: the subject. Demographic informatio
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Page 150 and 151: information rights and legislated c
Page 152 and 153: this value is difficult to apportio
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Page 156 and 157: the new environment.For example, th
Page 158 and 159: implemented. As this section will h
Page 160 and 161: ight. First sale is an important di
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Page 178 and 179: Universal Music Group uses software
Page 180 and 181: Taking UCITA on the Road: WhatLesso
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Page 184 and 185: It is against this background that
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Page 188 and 189: as well, such as the American Bar A
Page 190 and 191: American Law Institute refused to p
Page 192 and 193: enactment of the draft. This led to
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Page 206 and 207: to by industry groups, with the res
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Page 210 and 211: Contracts deals with unfair terms i
Page 212 and 213: worth a thousand words. Picture a d
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Page 220 and 221: Other Substantive IssuesThere are,
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law,153 and many of UCITA’s provi
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nature of law-making both domestica
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Transactions Act).
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acts of copyright infringement.7 Un
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these rights.I. ISP LIABILITY FOR T
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Cubby, the court in Stratton Oakmon
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liability for third-party content.5
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network and removed the edition of
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subscribers’ conversations.84 Fur
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holder.92 Contributory liability ap
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and Klemesrud on the counts of dire
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eport, the White Paper on Intellect
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imposed ISP liability both in insta
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any infringing material either upon
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provider liability, the European Co
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of a defamatory statement.While saf
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defamation.184 One case that illust
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material that appears questionable
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FBI’s Carnivore: Is the Governmen
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and the legal limits of government
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II. CONSTITUTIONAL ANALYSISA. Const
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application developed in Katz v. Un
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Amendment protections.50Substantial
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communicating over the Internet pos
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court will likely, as it has often
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unconstitutional.81 Although CALEA
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data attributable to the target sus
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FBI facility for subsequent examina
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EPCA Section 2518 provides that upo
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The FBI has stated that its use of
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provision,143 but judging from the
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