Student SS # ____________________ Exam ID #
THESE EXAMINATION QUESTIONS MUST BE RETURNED AT THE END OF THE EXAMINATION.
SANTA CLARA UNIVERSITY
SCHOOL OF LAW
57931 Cyberspace Law May 6, 1998
Professor Eric Schlachter (a/k/a Goldman) Spring Semester
2 Essay Questions 6:00 to 8:00
THE EXAMINATION RULES AS REVISED 1997/1998 GOVERN THIS EXAMINATION, EXCEPT THAT THIS IS AN OPEN BOOK EXAM (ANY MATERIALS PERMITTED BY THE EXAMINATION RULES ARE PERMITTED).
Instructions--PLEASE READ CAREFULLY
1. This is a multiple part exam with a total time limit of 2 hours. There are a total of two questions, with the following weighting for each question:
Question 1: 66.67% (1 hour, 20 minutes)
Question 2: 33.33% (40 minutes)
2. I have the following tips and strategies for you:
· Please outline your answers carefully and deliberately. I recommend that you spend approximately 1/3 of your allocated time reading the question and outlining a response. Ideally, after outlining your answer, you will spend a bit of extra time considering the identity of parties and the issues involved.
· Follow the call of the question. Target your response to your audience.
· While generally your answers should be based on legal principles, it is always appropriate to address business issues.
· Keep separate legally-distinct parties and their respective rights & responsibilities.
· You are likely to find that additional information would be useful in your analysis. Please indicate what additional information would be helpful, and then make assumptions to proceed with your analysis.
Question 1 (1 hour, 20 minutes)
You represent OhBoy, Inc. OhBoy’s website permits individuals to run auctions to sell goods. The system works as follows: a seller posts a message describing an item he or she would like to sell. The message contains the seller’s email address. Potential buyers then post messages, which also contain their email addresses, stating a price at which they would buy the item. At the end of the designated period, the auction closes, the buyer and seller complete the transaction off-line, and OhBoy is paid a percentage of the transaction. The email addresses are included in the messages because one of OhBoy’s main competitive advantages is that it allows buyers and sellers to build "reputational capital" on the site, which in turn has created a "community" that overlays otherwise relatively anonymous buy/sell transactions.
OhBoy’s primary competitor is AuctionAway (AA). AA also runs an auction site.
One day, AA sent a series of robots to OhBoy’s website servers. These robots requested every web page they could find on OhBoy’s website, made an electronic copy of each page, and distilled from these pages the email addresses of OhBoy’s buyers and sellers. Once the robots built a database of these email addresses, AA then sent unsolicited email to OhBoy’s buyers and sellers, advertising AA’s website and encouraging them to engage in business on AA’s site.
Many of OhBoy’s customers figured out that they had received AA’s email only because they had posted messages (with their email address) on OhBoy’s site. As a result, OhBoy received many complaints from its customers.
PART 1: In light of this situation, discuss OhBoy’s objectives in dealing with AA in the short term and how it might effectuate these objectives.
PART 2: Irrespective of how it deals with the situation in the short term, what steps can OhBoy take to prevent future similar situations with AA or other competitors or to improve OhBoy’s legal position in such situations?
[Eric’s Tips and Hints: Do not discuss any issues specific to the buy/sell transactions between buyers and sellers. If it is easier for you, you can deal with Part 1 and Part 2 in one answer rather than breaking out two different answers, but MAKE SURE you answer both parts.]
[Bonus Tip: Remember to address OhBoy’s users’ rights separately from OhBoy’s rights.]
[Double Bonus Tip: There is probably some additional information that would be helpful to your analysis. Remember to make assumptions and proceed accordingly.]
END OF QUESTION 1
Question 2 (40 minutes)
The following excerpts are from Leslie A. Gordon, "Combating Cyber-Libel," San Francisco Daily Journal, March 11, 1998 at 1:
"The pivotal issue in Internet-related libel disputes is whether the America Onlines of the world are viewed as publishers, which could make them legally responsible for the material they help to circulate, or distributors, which would lessen or eliminate their legal liability. . . .
"David Rockower, editor of the Journal of Internet Law and special counsel at Gray Cary Ware & Freidenrich in Palo Alto, advises Internet providers to post ‘rigorous disclaimers’ regarding the amount of control they have over on-line material.
"Third parties planning to post information on citysearch.com, a popular San Francisco site, are warned that they could be held liable for what they say. ‘We are NOT responsible for any notes, unless posted by us,’ says the Web site warning. . . ."
Please critique these statements. Are they accurate statements of law? As part of a risk management strategy for your clients that permit user generated content on their websites, would you advise your clients this way?
[Eric’s Tips and Hints: Of course, reporters often capture ideas and statements out-of-context, so if you think there is any confusion here, do not try to sort through whether the source of the confusion is the quoted party or the reporter. However, you should identify any confusion you experienced and explain why you were confused.]
END OF QUESTION 2
END OF EXAMINATION