This is the homepage for Professor David Opderbeck’s Internet Law and Governance Foundations course at Seton Hall University Law School. This course is a 1-credit module in a four module sequence of classes that comprise a flexible, comprehensive offering in the area of cybersecurity law and policy.
For our first class, we will discuss some basic principles of Internet “governance.” I put “governance” in quotes here because, as you will see, there is no single source of legal norms for the Internet. Much of the “law” of the Internet is what we call “soft law” — that is, a relatively loose collection of principles and standards held together mostly by contractual relationships.
My experience teaching this material to law students over the past few years has shown that it can be a bit frustrating for you to get a handle on what you are supposed to be learning. By now, you are used to areas of law governed by a somewhat coherent set of Constitutional, common law, and/or statutory and regulatory principles, from which you can derive legal tests for liability or compliance that can be applied by courts. That is not, usually, how Internet governance works. Internet governance is fuzzy. If you continue on and take any of the other modules in our “Cybersecurity” or “New Media” sequence, however, you’ll see that having a sense of the contours of this fuzziness is important to the more specific legal issues arising from things like copyright in YouTube videos or government e-mail surveillance. So, for now, enjoy the ride.
Here are the required videos for Class 1, Lecture 1 and the Certificate of Attendance.
Here are the required videos for class 2 and the Certificate of Attendance.
In this class we ask a meta question: “what is ‘law’?” As we began to explore in our first class, the sources of “Internet Law” include an ad hoc mixture of rules and norms. In this class, we will dive deeper into what “law” might mean in “cyberspace.” In particular, we’ll see how the principles of “information theory” relate to the famous (or infamous) claim that in cyberspace “code is law.”
There is lots of “theory” in this lecture and it might not immediately be evident how all of it applies to “Internet Law.” Stick with it. It all really is important to the key legal / policy debates we’ll look at in the last few weeks of class, including copyright and the DMCA, domain name disputes, and network neutrality.
Here are the required videos for class 3 and the Certificate of Attendance.
In this class we continue the conversation about what “law” and “jurisdiction” mean in cyberspace. In the first part of the video, I discuss a litigation that was pending at the time I recorded the video but is now decided, Clearcorrect Operating LLC v. International Trade Commission, 810 F.3d 1283 (Fed. Cir. 2015). An edited version of the case is in your readings. As you read the case, consider how the Federal Circuit decided the issues I mention in the video. Also included in your readings are excerpts from various opinions in an infamous early Internet jurisdiction case involving the sale of Nazi memorabilia through Yahoo! auction sites in France. Think about how the jurisdictional tensions in the Yahoo! dispute continue to reverberate in our discussions about Internet governance today.
This class also covers additional materials about the law and economics of Internet governance. Again, I know this can be a tough slog for some of you, but stick with it. These ideas about market failures, the Coase Theorem, and open source models are essential to understanding the policy implications of important Internet law and governance issues such as “network neutrality.”
Here are the lecture materials for Class 4 and the Attendance Certificate. There is a video lecture and also an audio-only lecture, as well as some external videos. In this class we move into how traditional areas of private law relate to the Internet. First, we look at online contracts and the problem of clickwrap and browsewrap agreements, then we discuss the role of patents and copyrights in cyberspace. Think about how to connect these legal regimes with the various theoretical considerations we discussed over the past two weeks. Note that the audio lecture mentions trademarks and domain names, but we will cover those IP aspects of cyberspace next week.
Here are the lecture materials for Class 5, comprised of an audio lecture and an external video, and the Certification.
In this class, we continue the discussion of intellectual property in cyberspace, with a focus on trademarks domain name disputes. As we have discussed, the DNS is a fundamental part of Internet governance. The Uniform Domain-Name Dispute-Resolution Policy (UDRP) was controversial when it was first adopted. It is now taken for granted as part of life in cyberspace, even if disputes sometimes still pop up over its application in particular kinds of cases.
The audio lecture also includes some additional information about the ICANN transition, which we have already discussed. You’ll notice that recent events have overtaken some of the material in this lecture, although there is some useful information in it about the ICANN transition plan.
There is also a video interview with domain name pioneer Frank Schilling demonstrating the economic value of rights in domain names.
Here are the video materials for Class 6 and the Certification. There is no separate lecture. “Network neutrality” is a rallying cry of open Internet advocates. Many commentators believe it is essential to enshrine net neutrality into law because otherwise large “edge” providers, such as Amazon and Netflix, could use their clout to stifle creativity and innovation.
The legal problem raised by this claim is whether any existing regulatory framework would give the government authority to impose such rules on ISPs. In the U.S., the FCC has been attempting to assert such authority for years, and has finally succeeded in crafting rules that have been upheld by the D.C. Circuit Court of Appeals. Edited versions of those rules and of the D.C. Circuit’s opinion comprise your readings for this week. As you can see, the legal question about the FCC’s rules turns largely on whether the FCC properly exercised its authority under the Telecommunications Act of 1976 to enact regulations over broadband Internet service — a kind of service that did not exist in 1976.
There are also significant policy and economic questions underlying the FCC’s rules. The two judges in the majority on D.C. Circuit, as you will see when you read the opinion, evaluated these choices under a broad reasonableness standard. The dissenting judge thought the FCC’s policy choices were likely to harm competition.
The first two videos below describe the basic principle of net neutrality. The John Oliver video was created in an earlier phase of this drama, when it appeared that the FCC would adopt anti-net neutrality rules. The next video discusses comments by President Obama that prompted an abrupt change in policy direction by the FCC, an event that caused some conservative critics to suggest the President had improperly impinged on the Commission’s independence. The final video is from FCC Commissioner Ajit Pai, who dissented from the Open Internet Order.
Notwithstanding the assumption in many circles that net neutrality is an unvarnished good, this week’s materials show that the political, policy, economic, and legal issues are complicated. Presently there is a petition for en banc review pending concerning the D.C. Circuit’s opinion on the Open Internet Order. If that petition is granted, there is a good chance the en banc court will narrow or rejects the FCC’s Order. If en banc review is not granted, the petitioners likely will seek certiorari from the Supreme Court. Of course, it is impossible to know whether the Supreme Court will take the case, but this is certainly one of the most important law and governance issues in the Internet’s brief history.