Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
Counseling and Legal Strategy in the Digital Age CLASS #1 Monday, September 14, 2015 Introduction: Clients' Goals, Lawyers' Tools, and Solving Problems Overview:
• Assessing clients' primary goals and needs
• Legal "issue spotting" meets practical "need spotting"
• Counseling to avoid legal problems and legal threats
• Ways to solve problems other than through litigation
• Strategic considerations in threatening, avoiding, pursuing and defending litigation
• Sending and responding to takedown notices, cease and desist letters and other threats
Required Readings: Grimmelmann
• Grimmelmann, pp. 57-66 ("Technical Primer: The Internet")
• Grimmelmann, pp. 530-539 ("Section 512," Lenz v. Universal Music Corp. 572 F. Supp. 2d 1150 (N.D. Cal. 2008))
Cease & Desist Letters and Responses
• October 17, 2007 cease & desist letter from Wal-Mart (counsel: Gary J. Rinkerman, Baker & Hostetler LLP) to BFADS.NET, read all
• Platinum Equity LLC-San Diego Reader Dispute:
1. Don Bauder, " If You Use This, I'll Sue (Links to an external site.)," San Diego Weekly Reader, July 15, 2009, read all 2. June 26, 2009 cease & desist letter (Links to an external site.) from Platinum Equity LLC (counsel: Martin D. Singer, Lavely & Singer) to San Diego Reader, read all
• December 6, 2011 letter (Links to an external site.) from Facebook (counsel: Joseph Cutler, Perkins Coie) to Hunter Moore, read all Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
• Louis Vuitton - Penn Law Intellectual Property Group controversy:
1. February 29, 2012 cease & desist letter (Links to an external site.) from Louis Vuitton (counsel: Michael Pantalony) to Dean Michael Fitts, read all 2. March 2, 2012 reply letter (Links to an external site.) from University of Pennsylvania (counsel: Robert Firestone) to Michael Pantalony, read all 3. Ron Coleman, "Louis Louis (Links to an external site.)," Likelihood of Confusion blog, March 13, 2012, read all (main post only, NOT comments)
• DirectBuy-Justin Leonard Dispute:
1. September 21, 2007 cease & desist letter (Links to an external site.) from DirectBuy, Inc. (counsel: Donald E. Morris, Dozier InternetLaw, P.C.), to Justin Leonard, read all 2. October 5, 2007 response letter (Links to an external site.) from Justin Leonard (counsel Paul Levy, Public Citizen) to DirectBuy's counsel, read all
• Steps to 'Internet-Proof' Your Cease and Desist Letter (Links to an external site.)," Technology & Marketing Law Blog, June 29, 2010, read all
• WestOrange.info Dispute:
1. Richard D. Trenk, May 23, 2013 cease and desist letter, read all 2. Stephen B. Kaplitt, June 17, 2013 response to cease and desist letter (Links to an external site.), read all
• FunnyJunk v. TheOatmeal.com (Carreon v. Inman, et al., No. CV 12-3112 (ND Cal.):
1. June 2, 2012 demand letter (Links to an external site.) from Charles Carreon to Matthew Inman, read all 2. June 11, 2012 response letter (Links to an external site.) from TheOatmeal.com (counsel: Venkat Balasubramani) to Charles Carreon, read all 3. Annotated response (Links to an external site.) from Matthew Inman on TheOatmeal.com, read all (original post and letter only, NOT comments) 4. EFF, " Charles Carreon Drops Bogus Lawsuit Against The Oatmeal Creator: Suit Was Blatant Rett aliation Against a Public Critic (Links to an external site.)," EFF Press Release, July 3, 2012
• Veoh Networks v. UMG Recordings, No. 07-CV-1568 (S.D.Cal.), 522 F. Supp. 2d 1265 (S.D.Cal. 2007) (Order Granting Motion to Dismiss), skim all
DMCA Takedown Notices Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
• Eric Goldman, " Second Life Ordered to Stop Honoring a Copyright Owner's Takedown Notices -- Amaretto Ranch Breedables v. Ozimals (Links to an external site.)," January 03, 2011, read all
• David Kravets, " The $105 Fix That Could Protect You From Copyright-Troll Lawsuits (Links to an external site.)," Wired Threat Level blog, October 27, 2010, read all (main post only, NOT comments)
Optional Readings: Grimmelmann
• Grimmelmann, pp. 567-476 ("Copyright Overview," "The Exclusive Rights")
• Grimmelmann, pp. 514-529 ("Direct and Secondary Liability")
Cease & Desist Letters and Responses
• Techdirt-Jeffrey Morris Dispute:
1. August 13, 2010 cease & desist letter from Morris (counsel: Addlestone Keane) to Mike Masnick, read all 2. Mike Masnick, "Legal Threat Demands We Shut Down Techdirt (Links to an external site.)," Techdirt blog post, August 26, 2010, read all (main post only, not comments)
• FBI / Wikipedia Foundation Dispute:
1. John Schwartz, " F.B.I., Challenging Use of Seal, Gets Back a Primer on the Law (Links to an external site.)," New York Times, August 2, 2010, read all 2. July 22, 2010 cease & desist letter (Links to an external site.) from FBI (counsel: David C. Larson, General Counsel) to Wikipedia/Wikimedia Foundation, read all 3. July 30, 2010 response letter (Links to an external site.) from Wikimedia Foundation (counsel: Mike Godwin, General Counsel) to FBI, read all 4. Statute Cited (18 U.S.C. § 701 (Links to an external site.), Official Badges, Identification Cards, Other Insignia), read all
• Newport Television - Free Press dispute:
1. Josh Stearns, " Free Press to Newport: We Won't Be Silenced! (Links to an external site.)," July 11, 2011, read all 2. Newport Television cease and desist letter (Links to an external site.), July 1, 2011, read all 3. Free Press response letter (Links to an external site.) to Newport C&D, July 8, 2011, read all Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
• July 2, 2010 cease & desist letter (Links to an external site.) from Friends of Sharron Angle (counsel: Cleta Mitchell, Foley & Lardner) to Reid campaign, read all
• January 12, 2012 letter from Scott Metzger (Links to an external site.) of Freetail Brewing Co., re: Hopasauraus Rex cease & desist letter, read all
• July 12, 2012 cease & desist letter from Jack Daniels (Counsel: Christy Susman) to Patrick Wensink, read all
• Daniel Wakin, " Web Page About the Met Closes at Opera's Request (Links to an external site.)," New York Times, August 17, 2011, read all
• Sam Bayard, " Copyright Misuse and Cease-and-Desist Letters (Links to an external site.)," Citizen Media Law Project ("CMLP") blog post, October 11, 2007, read all
DMCA Takedown Notices
• Lenz v. Universal Music Publishing Group, No. C 07-03783-MEJ (N.D.Cal.): Second Amended Complaint (Links to an external site.) (filed April 18, 2008), skim all
Miscellaneous
• Kashmir Hill, " How Hunter Moore Could Get Into Legal Trouble For The Revenge Porn On IsAnyoneUp (Links to an external site.)," Forbes.com, November 22, 2011, read all
• Study Re: Lawyers' Estimations of Litigation Success: Jane Goodman-Delahunty, Pär Anders Granhag, Maria Hartwig, Elizabeth F. Loftus, " Insightful or Wishful: Lawyers' Ability to Predict Case Outcomes (Links to an external site.),"Psychology, Public Policy, and Law, 2010, Vol. 16, No. 2, 133-157, skim 133-135, 138-144
Issues to consider:
• How do you determine what your client's true needs and goals are? How do you assess and address mixed legal, business, technological and personal goals?
• How can you use the law to help and not hurt the most important goals and needs?
• How can your client avoid legal problems, legal threats and lawsuits in the first place?
• When is litigation a good solution? When is it not? Why?
• What considerations should go into deciding whether or not to send a cease and desist letter, DMCA takedown notice, or other legal notice?
• What tone should a C&D take, and how much information should it include? Why? Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
• How are each of the above considerations different if you know your client is not likely to or cannot actually file suit? What alternatives do you have?
• What considerations should go into how you draft a response to a C&D? How much factual and legal detail should you include, and why? What tone should you take?
• How are those considerations different if you know your client is not likely to or cannot actually defend a suit if one is filed?
• How does the DMCA 512 safe harbor operate? How do you advise your client about the importance and logistics of ensuring the safe harbor protections?
• What are DMCA takedown notices? When should you send one? How should your client respond to one?
• How do the risks of sending a C&D differ from those of sending a DMCA takedown notice?
Counseling and Legal Strategy in the Digital Age
CLASS #2 Monday, September 21, 2015
Stages of Litigation (1 of 3): Articulating a Core Theory of the Case andDeveloping Effective Long-Term Strategies
Overview:
• Shaping the case . . . and the defense
• Anticipating answers and drafting answers
• The power of analogies
• Anticipating media attention and integrating the media into the litigation strategy
• Establishing and promoting a consistent narrative, before and after a case is filed
• Drafting the complaint – balancing telling a compelling "story" with satisfying legal requirements
• Addressing complexity in plain language
• Framing issues Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
Required Readings:
Grimmelmann
• Grimmelmann, pp. 505-514 ("Fair Use")
• Grimmelmann, pp. 511-513 (Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007))
Framing Arguments
• Lessig v. Liberation Music, No. 1:13-cv-12028 (D. Mass.), Complaint (Links to an external site.) (August 22, 2013), read pars. 1-3, 13-61; skim pars. 62-70
• Shepard Fairey v. The Associated Press, No. 09-01123 (AKH) (S.D.N.Y.):
1. Complaint (Links to an external site.), (February 9, 2009), read paragraphs 1-2, 9-40, skim the exhibits 2. Answer, Affirmative Defenses, and Counterclaims , (March 11, 2009), read paragraphs 53-64, 69-134, 158-162
• Google Library Project:
1. McGraw-Hill v Google, No. 05 CV 8881 (SDNY 10/19/05), Complaint, read pp. 1-15 2. The Authors' Guild v Google, 05 CV 8136 (SDNY 9/20/05), Complaint, read pp. 2-3, 8- 13 3. Google's Memo in Support of Motion for Summary Judgment (Links to an external site.), filed July 27, 2012, read pp. 1-5; 18 (starting at "Argument") - 32 (stop at heading C); 39- 40 ("Conclusion")
• Viacom v. YouTube, No. 1:07-cv-02130 (LLS) (FM) (S.D.N.Y.), Complaint (Links to an external site.) (March 13, 2007), read paragraphs 1-10, 20-23, 27-28, 30-45
• Bland v. Roberts, No. 12-1671 (4th Cir. 2012), Brief of Amici Curiae ACLU and ACLU of Virginia (Links to an external site.), filed August 6, 2012, read pp. 1-15 (Be sure to use printed brief page numbers at bottom, NOT .pdf page numbers or red numbers at top)
• United States v. Apple, Inc., et al., No. 12-CV-2826 (S.D.N.Y. 2012), Brief of Bob Kohn as Amicus Curiae (Links to an external site.), filed Sept. 4, 2012, read all
Optional readings: Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
• Tuteur v. Crosley-Corcoran, No. 1:13-cv-10159-RGS (D. Mass.), Brief of Amici Curiae Electronic Frontier Foundation and Digital Media Law Project, filed May 1, 2013, read all
• Viacom v. YouTube, No. 1:07-cv-02130 (LLS) (FM) (S.D.N.Y.):
1. YouTube Memo of Law in Support of Motion for Summary Judgment (Links to an external site.), filed March 11, 2010, read pp. 1-11, 16-19 (The DMCA Safe-Harbor Provisions), 96-99 (use printed page numbers, not the .pdf page numbers) 2. Google/YouTube's Summary Judgment Motion information page (Links to an external site.), skim all 3. Viacom's Memo in Support of Motion for Summary Judgment (Links to an external site.), read pp. 1-10 4. District Court's Order (Links to an external site.) granting YouTube Motion for Summary Judgment, filed June 23, 2010, read pp. 1-2, 6-7, 15-20, 30
• Shloss v. Sweeney, No. C 06-3718 JW (N.D.Cal.):
1. Complaint (Links to an external site.) (June 12, 2006), skim all 2. D.T. Max, "The Injustice Collector: Is James Joyce's Grandson Suppressing Scholarship? (Links to an external site.)," The New Yorker, August 12, 2006, read pp. 7- 8 (re: Carol Loeb Shloss and Lawrence Lessig), skim rest of article
• Harney v. Sony Pictures Television, Civil Action No. 10-1181-RWZ (D. Mass):
1. Sony Memo in Support of Motion for Summary Judgment, read pp. 1-9 (use small page numbers at bottom of pages, NOT numbers at top) 2. Order (Links to an external site.) (May 12, 2011), read all
Issues to consider:
• How much "storytelling" should go into a complaint and why? How much is too much? Why?
• How do lawyers make novel or complex technology understandable to courts?
• How, and how much, should themes and framing anticipate arguments the other side will make? Why?
• What is the value of using analogies in complex cases? What are the risks?
• What role does a core theory or theme play throughout the case? When should you choose one? Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
• What is the role of framing and core theories in public disclosures rather than court pleadings? Are there risks?
• What are declaratory judgment actions? How and when are they used? What are the requirements? How do they relate to the cease & desist letter issues from Class #1?
Counseling and Legal Strategy in the Digital Age
CLASS #3
Monday, September 28, 2015
Stages of Litigation (2 of 3): Dispositive Motions and Persuasive Brief Writing
Overview:
• The interplay between legal merits and how soon a defendant can end a case
• Motions to dismiss: failure to state a claim, personal jurisdiction
• Motions for judgment on the pleadings
• Motions for summary judgment
• Factual support for motions
• Strategies for motions
• Persuasive briefs, persuasive themes
Required Readings:
• Higher Balance, LLC, v. Quantum Future Group, Inc., et al., Civil No. 08-233-HA (D. Or.):
1. Defendant QFG's Memo in Support of Special Motion to Strike Complaint (Links to an external site.), filed April 5, 2008, read pp. i-ii, 1-3, 9-16 (Sections IV, V and first two para's of VI) (be sure to use the printed page numbers, not the .pdf numbers) 2. District Court's Order Granting Motion to Strike (Links to an external site.), December 18, 2008, read pp.1, 4-15
• Internet Solutions Corp., v. Marshall, No. 6:07-cv-1740 (M.D.Fla.): Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
1. Defendant's Motion to Dismiss (Links to an external site.), read pp. 13-21, skim pp. 1-4, 6-12 2. District Court's decision (Links to an external site.), read all
• Venkat Balasubramani, " The 9th Circuit Tackles a Pair of Internet Jurisdiction Cases (Links to an external site.)," Technology & Marketing Law blog, August 12, 2011, read all
• Barnes v. Yahoo, No. 05-36189 (9th Cir. 2009):
1. Brief of Amici Curiae (Links to an external site.), filed May 21, 2009, read Section A, pp. 2-13 (be sure to look at the brief, not the motion that precedes it, and be sure to use the printed page numbers at the bottom, not the .pdf numbers or PACER numbers at the top) 2. Eric Goldman, " Ninth Circuit Helpfully Amends Barnes v. Yahoo (Links to an external site.) Opinion (Links to an external site.)," Technology and Marketing Law blog post, June 22, 2009, read all
• Eric Goldman, " 47 USC 230 Can Support 12b6 Motion to Dismiss-Gibson v. Craigslist (Links to an external site.)," Technology and Marketing Law blog post, June 18, 2009, read all
• In Re Google Gmail Litigation, Case No. 5:13-md-02430-LHK (N.D. Cal.):
1. Defendant Google Inc.'s Motion to Dismiss Plaintiffs' Consolidated Individual and Class Action Complaint; Memorandum of Points and Authorities in Support Thereof (June 13, 2013) , read Introduction (pp. 2 – 3) and Section IV(B)(4) (pp. 19 – 21); skim pp. 3 – 6 2. "Google: Gmail users 'have no legitimate expectation of privacy, (Links to an external site.)'" RT.com (August 13, 2013), read all
• Savage v. Council on American-Islamic Relations, Inc., No. C 07-6076 SI (N.D. Cal.):
1. Defendant's Motion for Judgment on the Pleadings (Links to an external site.), read pp. 1- 12 (stop at "B. Savage's RICO Claims . . . ) (be sure to use the printed page numbers at the bottom, not the .pdf numbers or PACER numbers at the top) 2. Court's Order (Links to an external site.) granting motion, read pp. 3-6, 13, skim pp. 1-2, 7-12
• Brownmark Films, LLC., v. Comedy Partners, et al.:
1. No. 10-CV-1013 (E.D. Wisconsin), Order granting motion to dismiss (Links to an external site.), filed July 6, 2011, read pp. 1-4 Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
2. No. 11-2620 (7th Cir., June 7, 1012), opinion , read all
• Asia Economic Institute v. Xcentric Ventures, LLC (C.D.Cal. 2010), District Court's Order (Links to an external site.) Granting in Part Motion for Summary Judgment, read pp. 1- 3, 17-19, 49-51 (motion to dismiss)
• The Authors' Guild v Google, 05 CV 8136 (SDNY 12/20/05): Google's Memo in Support of Motion for Summary Judgment, filed July 27, 2012, re-read pp. 1-5; 18-19; 39-40 ("Conclusion") (Links to an external site.)
• Leslie Gordon, " For Federal Plaintiffs, Twombly and Iqbal Still Present a Catch-22 (Links to an external site.)," ABA Journal, January 1, 2011, read all
Optional Readings:
• Internet Solutions Corp., v. Marshall, No. 6:07-cv-1740 (M.D.Fla.): Florida Supreme Court's decision (Links to an external site.) on certified question from the 11th Circuit, June 17, 2010, read pp. 1-3, 8-11, 27-31
• Righthaven LLC v. Realty One Group, Inc., 2010 WL 4115413 (D. Nev.), Order granting motion to dismiss , filed Oct. 19, • 2010, read all
• Eric Goldman, " Blogger Wins Fair Use Defense...On a Motion to Dismiss!--Righthaven v. Realty One (Links to an external site.)," October 21, 2010, read all
• Ashcroft v. Iqbal (Links to an external site.), 129 S. Ct. 1937 (2009), read pp. 1949-1954 (Section IV)
• Wong v. Jing, Ma, Yelp.com, et al., Case No. 1-08-CV-129971 (Cal. Super. Ct), Memorandum in Support of Anti-SLAPP Motion to Strike (Links to an external site.), read all
Issues to consider:
• How do you counsel clients to avoid legal disputes and violations in the first place?
• How does this initial counseling and guidance relate with the "understanding your clients needs and goals" issues from Class #1?
• What are the standards for each of the different motions? Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
• Which motions may be brought at what times?
• What considerations should go into deciding whether to bring one or more motions, and when?
• What happens when additional evidence is presented in connection with a motion to dismiss?
• What evidence can be considered in connection with a summary judgment motion? How can that evidence best be presented?
• How have Twombly and Iqbal changed pleading standards and practices? What opportunities have these cases created for dispositive defense motions?
Counseling and Legal Strategy in the Digital Age
CLASS #4
Monday, October 5, 2015
Stages of Litigation (3 of 3): Injunctive Relief and Provisional Remedies
Overview:
• Different types of injunctions
• When are provisional remedies appropriate?
• When are different types of provisional remedies appropriate?
• The interplay among the four injunction factors
• Strategies for seeking and defending against injunctions
• First Amendment and prior restraint analysis in injunctions
Required Readings:
• Federal Rules of Civil Procedure, Rule 65 (Links to an external site.), read all Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
• Eric Goldman, " Second Life Ordered to Stop Honoring a Copyright Owner's Takedown Notices – Amaretto Ranch Breedables v. Ozimals (Links to an external site.)," January 3, 2011, read all
• Flexible Lifeline Systems v. Precision Lift (Links to an external site.), No. 10-35987 (9th Cir. August 22, 2011), read pp. 11287, 11293-11305
• Alliance for Wild Rockies v. Cottrell (Links to an external site.), 9th Cir. Amended Opinion, filed September 22, 2010, read pp.16033-40 (Section III.A)
• FTC v. Central Coast Nutraceuticals, Inc., et al. (Links to an external site.), (E.D.Ill.), ex parte TRO issued August 6, 2010, read pp. 1-7, 29-32
• MBTA v. Anderson, et al., Civ. No. 08-11364-GAO (D.Mass):
1. Complaint (Links to an external site.) (filed 8/8/08), read paragraphs 1-4, 33-75, pages 16-17 (Requested Relief); skim para's 15-32 2. Memo in Support (Links to an external site.) of Motion for TRO (filed 8/8/08), read all 3. Court's TRO (Links to an external site.) (issued 8//08), read all 4. Defendants' Motion for Reconsideration of TRO, read pp. 1-12; skim pp. 13-18
• ABC, et al., v. Aereo, Inc., 1:12-cv-01543-AJN (SDNY), Order denying motion for preliminary injunction, issued July 11, 2012, read pp. 1-3 (Sections I and II), 12-22, 38-41 (stop at "This harm is not speculative"), 47-52 (Sections VI, VII and Conclusion); skim pp. 3- 7
• Burfoot v. May4thCounts.com, et al., No. CL10-2735 (Norfolk, VA Circuit Court), order vacating injunction , April 10, 2010, read all
• Blockowicz v. Williams, No. 09-C-3955 (N.D.Ill.):
1. District Court's order denying injunction , filed December 21, 2009, read all 2. Eric Goldman, " Ripoff Report Not Bound by Takedown Injunction Against User -- Blockowicz v. Williams (Links to an external site.)," Technology & Marketing Blog, December 22, 2009, read all (main post only, not comments) 3. Paul Levy, " Courts Address a Section 230 Question That Seems Hard at First Blush– What Happens After a Defamation Plaintiff Wins Against the Poster? (Links to an external site.)," Consumer Law & Policy blog, December 30, 2010, read all
Optional readings: Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
• Rachel Weisshaar, " Hazy Shades of Winter: Resolving the Circuit Split over Preliminary Injunctions (Links to an external site.)," 65 Vanderbilt L.Rev. 1011 (2012)
• Lawrence Lee Budner, " Preserving Flexibility: Alliance for the Wild Rockies v. Cottrell and the Preliminary Injunction Standard (Links to an external site.)," 39 B.C.Env.Aff.L.Rev., Issue 3 Electronic Supplement Article 2, September 4, 2012
• Real Truth About Obama, Inc. v. FEC (Links to an external site.), 575 F.3d 342 (4th Cir. 2009), vacated on other grounds, 130 S. Ct. 2371 (2010), reissued in part 607 F.3d 355 (4th Cir. 2010), read pp. 4-8 (Section II)
• Salinger v. Colting (Links to an external site.), No. 09-2878-cv (2d Cir. April 30, 2010), read pp. 3-10, skim pp. 11-24
• Bank Julius Baer & Co. v. Wikileaks, No. CV08-0824 JSW (N.D.Cal.):
1. Plaintiff's Memo in Support of Motion for TRO (Links to an external site.), filed 2/8.08, read pp.1-2, 8-13, 18-21 2. Order Granting Permanent Injunction (Links to an external site.), filed 2/14/08, read all 3. Amended Order Granting Permanent Injunction (Links to an external site.), filed 2/14/08, read pp. 2-5 4. Brief of Amici Curiae (Links to an external site.), filed 2/26/08, read pp.1-9, 14-16 5. Order Denying Motion for PI and Dissolving Permanent Injunction (Links to an external site.), filed 2/29/08, read all
• craigslist, Inc. v. McMaster, No. 2: 09-1308 CWH (D.S.C.):
1. Motion for TRO and PI (Links to an external site.), filed 5/20/09, read pp. 1-4, 12-27, 33- 34 skim pp. 5-11, 27-31 2. Consent TRO (Links to an external site.), filed May 22, 2009
• Harry Zhou, " Digest Comment: Determining the Proper Scope of Prior Restraints Against Blogs in Defamation Cases," JOLT Digest, read all (main post only, not comments)
• American Broadcasting Companies, Inc. v. Aereo, Inc., 134 S. Ct. 2498 (2014) (Links to an external site.)
Issues to consider:
• What are the purposes of injunctions? Why are they important for a plaintiff? Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
• What are the standards for preliminary injunctions? What is the current state of the law regarding irreperable harm and the "serious questions" or "sliding scale" tests? What difference do these details make in how you would litigate actual cases?
• What are the purposes of injunctions? Why are they important for a plaintiff?
• When is each type of provisional remedy appropriate? What are the standards for each?
• How do courts assess likelihood of success on the merits? What kinds of process and evidence may be involved?
• How does a party demonstrate likelihood of irreparable harm? How do you oppose such a showing?
• What strategic considerations should go into deciding whether and, if so, when to bring a motion for provisional relief?
• What strategic considerations should you take into account when drafting the terms of preliminary relief? What can go wrong?
CLASS #5
Monday, October 19, 2015
Dealing with State and Federal Regulatory Bodies and Responding to Government Investigations
Overview:
• The role of Congress in enacting legislation that governs technology and the Internet
• The role of the Internet prosecutor/enforcer
• Prioritizing Internet and cyberlaw issues in legislation, investigations, and cases
• The continuum from public education to advocacy to enforcement to legislation
• Governmental investigative powers and tools
• Special considerations for private actors handling government inquiries and lawsuits Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
• Strategies for government investigations – packaging and framing for the government and the public
• Distilling and effectively communicating complex legal and factual issues in the context of government investigations
Required Readings:
• Google WiFi Data Collection:
1. FTC Letter (Links to an external site.) to counsel for Google re: closing of FTC investigation, October 27, 2010, read all
2. Alan Eustace, "Creating Stronger Privacy Controls Inside Google (Links to an external site.)," Official Google Blog, October 22, 2010, read all
3. Tom Krazit, "New Privacy Czar Might Have Google's Hardest Job (Links to an external site.)," CNET, October 28, 2010, read all
4. EPIC, "Investigations of Google Street View (Links to an external site.)," read Summary, Latest News, Timeline, United States; skim all
5. Connecticut Attorney General's Office, "CT Attorney General Seeks Additional Information On Google Street View Snooping, Announces 38 States Have Joined Multistate Investigation ," July 21, 2010, read all
6. Connecticut Attorney General's Office, "Attorney General's Statement on Google Investigation Status (Links to an external site.)," October 27, 2010, read all
7. Ryan Chittum, "Poor coverage of Google's Street View scandal settlement (Links to an external site.)," Columbia Journalism Review (March 15, 2013), read all
8. Kadhim Shubber, "Google ordered to delete Street View Wi-Fi data, avoids fine (Links to an external site.)," Wired.co.uk (June 21, 2013), read all
• Craigslist Adult/Erotic Services Ads
1. Craigslist, Inc. v. McMaster, No. 2: 09-1308 CWH (D.S.C.) – Motion for TRO and PI (Links to an external site.), filed 5/20/09, read pp. 1-19 skim pp. 20-27 (be sure to use printed page numbers at the bottom, NOT the .pdf page numbers)
2. Craigslist, Inc. v. McMaster , No. 2: 09-1308 CWH (D.S.C.) – Consent TRO (Links to an external site.), filed May 22, 2009, read all Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
3. Dart v. craigslist, Inc. , No. 09-CV-1385 (N.D.Ill.): Matt Zimmerman, "Cook County Sheriff Loses Craigslist 'Erotic Services' Ads Case (Links to an external site.)," EFF Deep Links blog, October 21, 2010, read all
4. State Attorneys General letter to Craigslist (Links to an external site.) , August 24, 2010, read all
5. Craigslist Blog, Jim Buckmaster – "Manual Screening Matters (Links to an external site.)" (August 18, 2010), read all (main post only, not comments)
6. Craigslist Blog, Jim Buckmaster – "'Family Friendly' ebay Classifieds (Links to an external site.)" (August 16, 2010), read all
7. Craigslist Blog, Jim Buckmaster – "Deja Blumenthal (Links to an external site.)" (May 3, 2010) read all (main post only, not comments)
8. Craigslist Blog, Jim Buckmaster – "Misdirected Outrage (Links to an external site.)," (April 27, 2010), read all (main post only, not comments)
9. Testimony of William Powell (Links to an external site.) of Craigslist Before the House Judiciary Committee, September 15, 2010, read all
• Google Buzz:
1. FTC Press Release re: Charges of Deceptive Privacy Practices (Links to an external site.), read all
2. FTC Press Release re: Settlement (Links to an external site.), read all
3. Erica Newland, " FTC-Google 'Buzz' Settlement Sets New Norm for Privacy," Center for Democracy & Technology (March 30, 2011) (Links to an external site.)
Optional Readings:
• Civil Investigative Demands and other investigative tools:
1. New York General Business Law § 349 (Links to an external site.), skim all
2. Mass. CID statute, M.G.L. Chapter 93, Section 8 (Links to an external site.), skim all
• In the Matter of Yahoo! Inc., September 24, 2003 New York Attorney General Assurance of Discontinuance (Links to an external site.), skim quickly all
Issues to consider: Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
• How does Congress draft legislation that has implications on complex technologies?
• What are the roles of various stakeholders (legislators, industry representatives, activists, and others) in the legislative and investigative process?
• How do state and federal agencies coordinate on multi-state and state-federal investigations and cases?
• How can companies handling government investigations resolve complaints and cases? What are the paths to a successful outcome?
Counseling and Legal Strategy in the Digital Age
CLASS #6 Monday, October 26, 2015
Document and Information Management: Tools, Challenges, and Pitfalls of Electronic and Expert Discovery
Overview:
• Discovery strategies: requesting, producing, linking to core themes
• Document preservation: holds, letters, requirements, consequences for spoliation
• Discovery tools: document requests, interrogatories, requests for admission
• Electronic discovery and production: rules, burden, proportionality
• Forensic analysis and use of consultants and experts
• Discovery disputes and sanctions for discovery omissions, spoliation and abuses
• Experts’ roles in developing and shaping the case
• Expert reports
• Strategies in deposing/defending experts
• Daubert/Kumho standards and motion practice
Required Readings: Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
Information Management and Electronic Discovery
• “Electronic Discovery Reference Model v. 2.0 ,” EDRM.net (2009), review graphic (CC-BY-3.0 (Links to an external site.))
• “Best Practices In E-Discovery In New York State and Federal Courts ,” Report of the E-Discovery Committee of the Commercial and Federal Litigation Section of the New York State Bar Association (July 2011), read pp. 3-29, skim pp. 30-42
• Mark Herrmann, “Inside Straight: Clawback Agreements — An Oft-Missed Trick (Links to an external site.),” Above the Law, June 9, 2011, read all
• Predictive Coding:
1. Andrew Peck, “Search, Forward: Will Manual Document Review and Keyword Searches Be Replaced by Computer-Assisted Coding?,” Law Technology News, October 2011, read all 2. Gregory Markel and Erika Engelson, “ Predictive Coding: Another Tool to Address toe Costs of E-Discovery,” New York Law Journal, May 25, 2012, read all
• “Is (Links to an external site.)Social Networking a No-Privacy Zone? The Discoverability of 'Private' Social Media Data (Links to an external site.),” Kramer Levin Electronic Discovery Update, April 2011, read pp. 4-7
Using and Rebutting Experts
• Federal Rules of Evidence, Rules 702, 703, 704, and 705 , read all
• Federal Rules of Civil Procedure, Rule 26 , read Rule 26(a)(2), 26(b)(4)
• Jason Rawnsley and Layton Richards, "The 2010 Amendments to the Expert Discovery Provisions of Rule 26 of the Federal Rules of Civil Procedure: A Brief Reminder (Links to an external site.)," ABA Section of Litigation 2012 Section Annual Conference, April 2012, read all
• A&M Records, Inc. v. Napster, Inc. , No. CV99-05183 (MHP),2000 WL 1170106 (N.D.Cal. 2000), district court decision on Daubert motions, read pp 1-4 (legal standard, Jay report), 10-12 (Tygar report)
• Cambridge University Press, et al., v. Becker, et al., No. 1:08-CV-1425-ODE (N.D.Ga.): Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
1. Court's Order denying motions to exclude, filed September 21, 2010, read pp. 1-7 (stop at "B. GSU Professors"9-10; ("C. Debra Marieniello") 2. Expert Report of Debra J. Mariniello , filed October 15, 2019, skim pp. 1-20 3. Expert Report of Kenneth D. Crews, J.D., Ph.D. , filed June 1, 2009, skim pp. 1-21
Optional Readings:
Information Management and Electronic Discovery
• “Zubulake v. UBS Warburg (Links to an external site.),” Kroll Ontrack
• “The Sedona Principles (Links to an external site.): Best Practices, Recommendations & Principles for Addressing Electronic Document Production,” The Sedona Conference, June 2007, read pp. ii, iv, 2-9 (use printed page numbers, not PDF numbers)
• The Sedona Conference “Jump Start Outline (Links to an external site.),” March 2011, skim all
• Robert Hardaway, Dustin Berger and Andrea DeField, “E-Discovery's Threat to Civil Litigation: Reevaluating Rule 26 for the Digital Age (Links to an external site.),” Rutgers Law Review, Vol. 63, p.521, 2011, read pp. 1-3, 14-15, 24 (starting with “D. The 2006 . . .”)- 32, 38 (starting with “4. Metadata”)-68
• Orin Kerr, “South Carolina Supreme Court Creates Split With Ninth Circuit on Privacy in Stored E-Mails — and Divides 2-2-1 on the Rationale (Links to an external site.),” Volokh Conspiracy blog, October 10, 2012, read all (main post only, NOT comments)
Using and Rebutting Experts
• Gusciora v. Corzine, MER-L-2691-04 (N.J.Super.Ct.), Expert Report of Andrew A. Appel (Links to an external site.)
• Center for Democracy & Technology v. Pappert, No. 03-5051 (E.D.Pa.):
1. CDT overview and background (Links to an external site.) of lawsuit 2. Expert Report (Links to an external site.) of Benjamin A. Stern (for defendant), read pp. 1-14 3. Expert Report (Links to an external site.) of Professor Matt Blaze (for plaintiff, responding to Stern), read 1-6 4. District Court decision (Links to an external site.), 337 F.Supp.2d 606 (E.D.Pa. 2004), read pp. 3-4, 36-47 (¶¶108-143), 65-67 ((¶¶197-203) Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
• Taubman v. Webfeats, No. 01-72987 (E.D.Mich.), Expert Report of Milton Mueller (Links to an external site.), submitted Nov. 11, 2002
• ABC, et al., v. Aereo, Inc., 1:12-cv-01543-AJN (SDNY)
1. Expert Report of Paul Horowitz , April 17, 2012, read pp. 1-5; 18-28 2. Expert Report of John Kelly , April 10, 2012, skim all
Issues to consider:
• What is the point of discovery? What are its core purposes in the overall context of litigation?
• At what stage in litigation should parties begin thinking about discovery and why?
• How do potential future discovery obligations shape a business’s overall document retention and communications strategy?
• What is the relationship between discovery and the imperative we have discussed of shaping consistent, core theories and themes of your case?
• What practical considerations should you take into account when determining the scope and scale of discovery requests?
• What special challenges and opportunities are created by the pervasive creation and storage of documents in electronic form? What is the effect of the 2006 amendments to the FRCP?
• What obligations and risks arise when a party anticipates or receives discovery requests? What are the consequences for failure to preserve, search for or produce responsive documents?
• What are some unconventional or unexpected sources of discovery that should be considered?
• Why do parties use expert witnesses? What are the two primary types of experts?
• What considerations go into choosing an effective expert witness?
• At what stage(s) of litigation should you retain/use an expert? Why?
• To what extent should/do lawyers help to shape an expert’s opinions, report and testimony? What are the pros and cons of different approaches? Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
• What are the ways in which you can undermine and attack an opposing expert?
• What are effective strategies for bringing and defending Daubert/Kumho motions?
Counseling and Legal Strategy in the Digital Age
CLASS #7 Monday, November 2, 2015
Counseling the Corporation from Inside (1 of 4): Risk Management, Integration Into Business and Product Teams
Overview:
• Understanding who the client is.
• Managing politics versus risk.
• How to analyze new technologies in light of law.
• How lawyers convey legal risk to product development teams.
• How product development teams convey business imperatives to lawyers.
• Constructive lawyering: how to get to “yes” while protecting the company.
• Legal and non-legal tools to manage risk.
Required Readings:
• Online Sales Tax Issues:
1. Tim Worstall, Amazon’s In Favour of the Online Sales Tax Bill Now (Links to an external site.) , Forbes, Oct. 26, 2013, read all 2. Marketplace Fairness Act (Links to an external site.) , May 6 2013, skim all
• Cybersecurity Information Sharing Act (CISA)
1. Cybersecurity Information Sharing Act (Links to an external site.), March 17, 2015, Skim All Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
2. Brian Fung, Apple and Dropbox say they don’t support a key cybersecurity bill, days before a crucial vote (Links to an external site.), October 20, 2015, read all 3. Julie Bort, A few tweets from Salesforce’s Marc Benioff threaten to squash a cyber- spying law (Links to an external site.), September 28, 2015, read all
• Amazon Kindle / 1984 Dispute:
1. Brad Stone, Amazon Erases Orwell Books from Kindle (Links to an external site.) , The New York Times, July 18, 2009, read all 2. Justin Gawronski, et al., v. Amazon.com, Inc. , No. 09-CV-01084-JCC, Stipulation of Settlement and [Proposed] Order of Dismissal , Sept. 25, 2009 , read all 3. Thomas Claburn, Amazon Says it Will Stop Deleting Kindle Books (Links to an external site.) , InformationWeek, July 18, 2009, read all 4. Eric Engleman, Bezos apologizes for removal of classic Orwell titles from Kindle (Links to an external site.) , Pujet Sound Business Journal, July 23, 2009, read all
• Joseph Menn, excerpt from All the Rave: The Rise and Fall of Shawn Fanning’s Napster posted by the LA Times (Links to an external site.), Crown Business, 2003, read all
• Defensive Patents
1. Mike Masnick, Google Dumps Motorola, Keeps Patents (Links to an external site.), TechDirt, January 29, 2014, read all 2. Shira Ovide and Geoffrey A. Fowler, Facebook Buys AOL Patents from Microsoft for $550 Million (Links to an external site.), The Wall Street Journal, April 23, 2012, read all
Optional Readings:
• James Grimmelmann, Internet Law: Cases and Problems:
1. pp. 505 – 507 (“Note on Sony v. Universal (Fair Use)”) 2. pp. 507 – 511 ( A & M Records, Inc. v. Napster, Inc., 239 F. 3d 1004 (9th Cir. 2001))
• Joel Reidenberg, Technology and Internet Jurisdiction , 153 U. Pa. L. Rev. 1951-1974 (2005), read all
• Marta Belcher and John Casey, Hacking the Patent System: A Guide to Alternative Patent Licensing for Innovators (Links to an external site.), Juesgaard Intellectual Property & Innovation Clinic, Stanford Law School, May 2014 Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
Issues to consider:
• At what stage should a company involve lawyers in decisions about business matters?
• How closely do lawyers work with public relations teams?
• At what point should concern about legal risk drive legislative, lobbying, or policy efforts?
• How can companies best integrate lawyers into business decisions and product teams?
• What are the advantages of having lawyers on board from the earliest stages of product development?
• What are the risks and pitfalls of involving lawyers in product development and design?
• How can businesses prioritize among legal, business, and public relations considerations in assessing risks and promoting their bottom lines?
Counseling and Legal Strategy in the Digital Age
CLASS #8 Monday, November 9, 2015
Counseling the Corporation from Inside (2 of 4): Corporate Social Responsibility, Human Rights, and Related Concerns in Corporate Decisionmaking
SPECIAL GUEST: MICHAEL SAMWAY
Overview:
• The risks associated with ignoring human rights principles
• Balancing human rights interests with business needs
• Human rights impact assessments
• Unanticipated uses of technology
Required Readings Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
• Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (Links to an external site.), United Nations, Human Rights Office of the Commisioner (2011), read pages 1, 13-26.
• Désirée Abrahams and Yann Wyss, “Guide to Human Rights Impact Assessment and Management (HRIAM)," The International Business Leaders Forum and the International Finance Corporation (2010), skim all
• Michael A. Samway, “Business, Human Rights, and the Internet: A Framework for Implementations,” (Links to an external site.) in Human Dignity and the Future of Global Institutions (eds. Arend and Lagon, Georgetown University Press, 2014), read all
• The Internet, Human Rights, and the Private Sector: An Interview with Michael Samway (Links to an external site.), Georgetown Journal of International Affairs (Winter/Spring 2014), read all
• Yahoo Criticized in Case of Jailed Dissident (Links to an external site.), The New York Times (November 7, 2007), read all
• Neil Gough, Chinese Democracy Advocate is Freed After 8 Years in Prison (Links to an external site.), New York Times (September 7, 2013), read all
• Yahoo! in China - Background: Shi Tao (Links to an external site.), Amnesty International, read all
• LinkedIn under fire for censoring Tiananmen Square Posts (Links to an external site.), The Guardian (June 4, 2014) read all
• Reed Albergotti, LinkedIn Considers Changes After China Censorship Revealed (Links to an external site.), WSJ.D (September 3, 2014), read all
CLASS #9 Monday, November 16, 2015
Counseling the Corporation from Inside (3 of 4): View from the In-House Counsel's Office
SPECIAL GUEST: TOM RUBIN
Overview: Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
• The role of the in-house lawyer
• Integration of lawyers into product teams
• Defining and advocating for the corporation’s interests
• Balancing the interests of client, user / customer, and government
Required Readings:
• Authors Guild, et al., v. Google, 05 Civ. 8136 (SDNY):
1. Microsoft Objections to Proposed Google Book Search settlement, filed September 8, 2009 read pp. 1-15, 25 (be sure to use the page numbers at the bottom center of the pages, NOT the pdf numbers or the numbers in the header) 2. Microsoft Objections to Proposed Amended Settlement (Links to an external site.), filed January 28, 2010, read pp. 1-7 (Introduction and Argument Section I), 15-25 (be sure to use the page numbers at the bottom center of the pages, NOT the pdf numbers or the numbers in the header) 3. Transcript of Fairness Hearing before Judge Chin (Links to an external site.), February 18, 2010, read pp. 3-4, 39-44 4. Judge Chin's Opinion rejecting proposed settlement, entered March 11, 2011, read pp. 1-2, 21-38
• Microsoft Kinect:
1. Rob Walker, Freaks, Geeks and Microsoft: "How Kinect Spawned a Commercial Ecosystem (Links to an external site.)," New York Times, May 31, 2012, read all 2. Jenna Wortham, "With Kinect Controller, Hackers Take Liberties (Links to an external site.)," New York Times, November 21, 2011, read all 3. Curt Woodward. "Kinect Hacks Finally Legitimate – Is Skype Next? Microsoft Releases Developer Kit for Motion- and Sound-Sensing Controller (Links to an external site.)," Economy Seattle, June 16, 2011, read all
• Government Surveillance and Access to Customer Data:
1. Brad Smith, " Responding to government legal demands for customer data (Links to an external site.)," Microsoft on the Issues (July 16, 2013) 2. Nick Wingfield, " Judge Rules that Microsoft Must Turn Over Data Stored in Ireland (Links to an external site.)," New York Times Bits Blog (July 31, 2014)
• Microsoft's "Unilateral" Software Licenses for NGOs: Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
1. Clifford J. Levy, "Russia Uses Microsoft to Suppress Dissent (Links to an external site.)," New York Times, September 11, 2010, read all 2. Brad Smith, "Anti-Piracy Enforcement and NGOs (Links to an external site.)," The Official Microsoft Blog, September 13, 2010, read all 3. Clifford J. Levy, "Microsoft Changes Policy Over Russian Crackdown (Links to an external site.)," New York Times, September 13, 2010, read all
• ABC v. Aereo, No. 13-1461, Brief of BSA / The Software Alliance as Amicus Curiae in Support of Neither Party (Links to an external site.) (March 2014), read Argument Sections I(A) and (IB), pp. 5-12
• SunTrust Bank v. Houghton-Mifflin Co., No. 01-122-00-HH (11th Cir.) (The Wind Done Gone infringement case), Amicus Brief of Microsoft Corp. (Links to an external site.), filed 5/14/01, read pp. 2-11, skim 12-22
Optional Readings:
• Miguel Helft, "Google Rivals Will Oppose Book Settlement (Links to an external site.)," New York Times, August 20, 2009, read all
• Protect-IP Act:
1. Brad Smith, "Microsoft Offers its Support for the Protect IP Act (Links to an external site.)," Microsoft on the Issues blog, May 25, 2011, read all 2. Gary Shapiro, "Don't Let Hollywood Break the Internet With the PROTECT IP Act! (Links to an external site.)," Forbes, October 26, 2011, read all 3. Jennifer Martinez, "Google Mulls Divorcing Chamber of Commerce (Links to an external site.)," Politico, November 4, 2011, read all
Issues to Consider:
• For the in-house lawyer, who is the client?
• How does an in-house lawyer harmonize positions within a large, complex corporation?
• How does an in-house lawyer develop legal and business strategies in areas of uncertain law?
• How important is advocacy of the corporation’s positions and interests to outside audiences such as the press, regulators, Congress and state lawmakers? How does a corporation go about doing so?
• How does an in-house lawyer approach the media and public relations aspects of decisions or controversies and harmonize that approach with the underlying business and legal strategies? Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
• What is the in-house lawyer's role in business and strategic decisions of the company? In litigation involving the company?
• How do companies respond to investigations and legal threats from state AG's and agencies such as the DOJ or EC?
• How, and for what purposes, does in-house counsel seek and utilize the services of outside lawyers? Why? How do you then manage and interact with the outside law firms?
Class #10 -- Thursday, November 23, 2015 Counseling the Corporation from Inside (4 of 4): Terms of Use; Issue Spotting in the Transactional / Licensing Context
Overview:
• Practical and legal considerations when drafting website Terms of Use.
• Contractual drafting and precise and consistent use of legal terms.
• Balancing legal and business considerations in crafting website Terms.
• Transparency Reports, and Copyright, Trademark and Government Request Policies
Required Readings:
• Instagram Terms of Use
1. Joe Brown, "Instagram's New Terms of Use, Translated into Plain English (Links to an external site.)," Gizmodo (January 18, 2013), read all 2. Instagram Terms of Use (Links to an external site.) (Effective January 19, 2013), read all 3. Casey Chan, "Instagram Admits It Screwed Up and Goes Back to the Old Terms of Service That Won't Sell Your Photos (Links to an external site.)," Gizmodo (December 20, 2012), read all 4. Kevin Systrom, "Updated Terms of Service Based on Your Feedback (Links to an external site.) (Links to an external site.)," Instagram Blog (January 2013), read all
• Google Terms of Service and Privacy Policy
1. Google Terms of Service (Links to an external site.) (Last modified: March 1, 2012), skim all Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
2. Google Terms of Service Update (Links to an external site.) (April 14, 2014), read all 3. Google Privacy Policy (Links to an external site.) (March 31, 2014) 4. Adam Tanner, "Google and Facebook Get a Thumbs Down from this New Site that Reviews Privacy Policies (Links to an external site.)," Forbes (October 28, 2013), read all
• DuckDuckGo Privacy Policy (Links to an external site.) (Last Updated April 11, 2012), read all
• Twitter Terms of Service (Links to an external site.), skim all, focus on “tips”
• Agence France Presse v. Daniel Morel v. Getty Images , Inc. et al., 934 F.Supp.2d 547 (S.D.N.Y. 2013), Read pages 15-25, Skim 2-12.
• Parker Higgins, Corynne McSherry and Daniel Nazer, Who Has Your Back? Protecting Your Speech from Copyright and Trademark Bullies (Links to an external site.), Electronic Frontier Foundation (October 27, 2014), read all
• Nate Cardozo, Kurt Opsahl and Rainey Reitman, Who Has your Back? Protecting Your Data from Government Requests (Links to an external site.), Electronic Frontier Foundation (June 17, 2015), read all of executive summary, skim company reports
• Peruse Google’s Transparency Reports at: http://www.google.com/transparencyreport/ (Links to an external site.)
• Jeff John Roberts, "Facebook legal notice is back -- and it still doesn't work (Links to an external site.) (Links to an external site.)," Fortune (September 29, 2014), read all
Optional Readings:
• Brad Stone & Brian Stelter, “Facebook Withdraws Changes in Data Use (Links to an external site.),” New York Times, February 19, 2009, read all
• Mark Zuckerberg, “An Open Letter from Facebook Founder Mark Zuckerberg (Links to an external site.),” The Facebook Blog, December 1, 2009, read all
• "FTC Charges Deceptive Privacy Practices in Google's Rollout of Its Buzz Social Network (Links to an external site.)," FTC Press Release, March 30, 2011, read all
Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar
• “Twitter’s New Terms of Service (Links to an external site.),” Twitterblog, September 10, 2009, read all
• Venkat, "The FTC Dings Twitter's Security Practices -- What Does This Mean for Everyone Else (Links to an external site.)?," Technology & Marketing Blog, June 24, 2010, read all
Issues to Consider:
• What is the purpose of a website Terms of Use? A Privacy Policy? How are they different?
• What interests do these documents protect?
• Whose interests do these documents protect?
• Who needs to be involved with any changes to a website's Terms?
• How should a website communicate changes to its Terms of Use or Privacy Policy?
• What are transparency reports, and what role do they play with respect to a company’s practices?