Digital Transactions, Fall 2015

Ronald J. Mann, Electronic Commerce (4th ed. 2011) (Aspen)

There is no requirement to purchase a statutory supplement.

Certain documents may be assigned from time to time from sources other than the casebook. These documents will be provided via links in the class assignment table below or in a separate page of class links. Paper copies of these documents will typically not be provided in class, so students should plan to print them or review them electronically.

Take-home final just after thanksgiving, but before the formal exam period begins on Dec. 3, graded blind against your exam number.  The final will be issued with several days for completion.  There will be an upper limit on the number of words allowed in an answer, inclusive of footnotes.  Superior class participation can boost your grade one level, for example, from B to B+.

The procedure and structure of the take-home final will closely parallel what is given at this link (document updated on 11/16/2015, revisions shown in red-line format).

The examination problem will be distributed at 9:00 a.m. CST on Monday, November 30, 2015.
Your answer will be due before 10:30 a.m. CST on Thursday, December 3, 2015.

Here is the final exam link. (this link will become active at 9:00 a.m. CST on Monday, November 30, 2015)

Here is a document about how to write answers for my exams and some information about how I evaluate these answers. This document is somewhat oriented toward in-class final exam answers written under time pressure, but has insights relevant to the take-home final used for this course.

The next paragraph gives a link to the Spring 2008 Internet Law examination. There is significant overlap in coverage with the material covered in Digital Transactions. Thus, sections A and B of the posted examination (and answer) are relevant and inspirational for the types of issues and presentation of issues for the Digital Transactions take-home final. But there are exceptions: (i) there is a click-fraud issue in section A, and we did not study click-fraud; (ii) section B has a 17 U.S.C. §114 issue related to digital music compulsory licenses that we did not study.

Here is the Spring 2008 Internet Law examination, and here is the composite student answer. Please note that the composite answer does not necessarily address every issue, nor resolve every issue in such a way as to earn all the points for that issue.

In this cell I will post answers to questions sent to me that create a need for the answer to be shared with the entire class.
Any such questions that need to be posed after the final exam issues must be sent to me indirectly, through the Executive Secretary for the MPS Suite, Ms. Robin R. Huff, (713) 743-2128, rrhuff@central.uh.edu. Ms. Huff will make the question anonymous and forward it to me.
Questions before the final exam issues can be sent to me directly.

Before Issuance
Q1 (11/24/15): I have a question about the Rescuecom and 1-800 contacts cases. I thought these cases spoke to what constitutes a "use in commerce" but as I was reviewing the Sept. 10th lecture, I think you implied that what constitutes a "use in commerce" is still unsettled and rather that these cases speak to factors 5 & 6 in the likelihood of confusion test. Could you please clarify whether "use in commerce" is unsettled or if I can use the Rescuecom and 1-800 contacts cases as examples for what is a use in commerce and what is not.

A1: I navigated our coverage in the class away from the predicate question some courts have posed under the "use in commerce" framework - evaluating whether the use is a "trademark use".  We didn't get into that doctrine or the questions around it, so it would not be fair game for the final.

Q2 (11/27/15): 1. In problem 1.3 from Assignment 1, how do we analyze the issue since it is talking about different countries and not states? The CAT case involved different states, which meant the solution could be a choice of law clause designating a certain state. In this multi-country situation, do we resolve the issue by stating that the terms of use should include a choice of law clause designating a particular jurisdiction in the U.S. for suits to be brought in? Also, does the First Amendment protect Branson’s rights, since he is expressing his views. 2. Are we responsible for international laws, such as the Brussels I Regulation, art. 23?

A2: As to part 1, problem 1.3 isn't intended to be a comprehensive choice of law exercise. The only two points of the problem are: (i) the United States first amendment won't help Don Branson in other countries, and, (ii) publishing information that intentionally aims at the residents of another jurisdiction might very well produce a result that is unsurprising - that jurisdiction will be found in that location. As to part 2, there are many snippets of law in the class there only a tiny amount of law is given. That is the case with the Brussels I Regulation, art. 23, where the full scope of what you are responsible for is the sentence on page 52: "Generally, if one party to a contract resides in the European Union, then the courts of any member state will uphold a provision in the agreement designating the courts of another member state as the exclusive forum. Brussels I Regulation, art. 23".

Q3 (11/29/15): [_1_] I have a couple of questions about the Softman case. Could you please clarify the difference between factor 1 (temporally unlimited possession) and Factor 2 (absence of time limits on copy possession), "absence of time limits" and "temporally unlimited" seem the same to me. Could you also please clarify how the DSC and SoftMan cases fit together? More specifically, can we fit DSC's focus on "terms inconsistent with ownership" under some of the factors given in SoftMan, or could "terms inconsistent with ownership" be its own factor? [_2_] I also have a question about citing (I know you went over this pretty thoroughly in class). Do we need to cite every verifiable statement of fact (like holdings and facts of the cases) or can we only cite to assertions that we think need the extra support?

A3: As to part 1, I agree that there is no material difference between the first two factors given in the list at the bottom of page 579. DSC is a case where no copy was owned by the end user; Softman is a case where copies were owned, thus invoking the first sale doctrine. Yes, I think one could understand the DSC idea of terms inconsistent with ownership from the perspective of the more elaborate and detailed factors given in SoftMan.

As to part 2, the posted instructions say:
Cites for your propositions that need cites should come only from the course materials. This can include the remarks from the lectures. Citing other material is prohibited. Your inferences, conclusions, arguments or observations are items that do not need cites.
The instructions also say:
Write your answer with Professor Vetter as your direct audience. Thus, terms of art and other baseline knowledge do not need definition or explanation if you are confident it is something this audience knows.

What to cite is a judgment call, but you do not need to cite "every verifiable statement of fact"  One cites to support an argument one is making. You should cite when you think you need support for that argument.

After Issuance
Q1 (received from Robin Huff, 8 a.m. on 12/2/2015): The second question asks what actions should Nose bring and Footnote 14 states that Nose for sure understands it wants to bring UDRP and ACPA actions. Is footnote 14 meant to dismiss UDRP and ACPA actions from our discussion as they are obviously understood?

A1 (10:35 a.m. on 12/2/2015): If the footnote had intended to remove treatment of UDRP and ACPA from coverage, it would have said that Nose waives bringing a UDRP and ACPA action.

October 29, 2015

Friday, October 23, 2015, will be a makeup class for the class to be missed on Thursday, October 29. The makeup class will be at the normal class time, in the same class room, 3 BLB.

The last class period will be Thursday, Nov. 19.