1997 Cyberspace Law Final Exam — Eric Goldman

Student ID # ____________________

THESE EXAMINATION QUESTIONS MUST BE RETURNED AT THE END OF THE EXAMINATION.

SANTA CLARA UNIVERSITY
SCHOOL OF LAW
FINAL EXAMINATION

57931 Cyberspace Law                                                                                                                                                     May 3, 1997
Professor Eric Schlachter                                                                                                                                                    Spring Semester

3 Questions                                                                                                                                                                        1:30 to 4:00

THE EXAMINATION RULES AS STATED IN THE CURRENT STUDENT HANDBOOK GOVERN THIS EXAMINATION, EXCEPT THAT THIS IS AN OPEN BOOK EXAM.

Instructions–PLEASE READ CAREFULLY

1.         This is an open book exam. All written and printed materials are permitted.

2.         This is a multiple part exam with a total time limit of 2 hours, 30 minutes. There are a total of three questions, with the following weighting for each question:

Question 1: 50% (1 hour, 15 minutes)

Question 2: 30% (45 minutes)

Question 3: 20% (30 minutes)

3.         Enter your student identification number in the space provided above.

4.         Please write or type your exam on paper provided.

5.         I have the following exam tips and strategies for you:

(a)        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.

(b)        Follow the call of the question. Target your response to your audience.

(c)        While generally your answers should be based on legal principles, it is always appropriate to address business issues.

(d)        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, 15 minutes)

Andrew Canyoudo, a partner in your firm, has forwarded to you the following email from one of his clients, Mike Saber:

Andrew, I need your help! I and my company have been repeatedly and viciously attacked by Lew Wort on a message board located at http://www.smallinvestor.com. I have complained to the sysop and still no action!!! This is unacceptable. Andrew, please resolve this matter.

Andrew explains to you that Andrew has recently represented Mike’s company, Crumb Corp., in its negotiations with BoBo Corp. BoBo recently announced that it was acquiring Crumb Corp. in a merger. Andrew explains that we now represent Mike individually [note: assume any necessary conflict waivers have been obtained].

Attached to Mike’s email is the text of four messages posted by Lew Wort in the “BoBo Forum” at smallinvestor.com, an active message forum for the discussion of BoBo’s business. In the header for all four messages, it says that the postings were made from 98765.4321@compuserve.com [note: assume the address is consistent with CompuServe’s address scheme]:

Message 172: Why did Crumb Corp. sell to BoBo instead of going public? Because if Crumb Corp. had gone public, everyone would have seen what a fraud the company is. Mike Saber is an infamous crook.

Message 178: It’s time to sell BoBo stock. Now! By some crooked means Saber was able to peddle his miserable creation to BoBo. All the insiders are selling as a result.

Message 179: How do I know Saber is a crook? I had many friends who worked with him in Estonistan. As you know, all Estonistanians are very unethical as a race. But my friends say Saber tops them all.

Message 182: Jeff, thanks for your message. I’ll see you at the COMDEX conference. And if you see Saber at the conference, tell him to watch his step. I’ll be there with a couple of tough guys from our security department.

When you go to look at the smallinvestor.com site, you cannot find messages 172, 179 or 182, but message 178 is still publicly available in the BoBo forum.

What do you do to “resolve the matter”? Please outline a list of the actions you plan to take and what you hope to accomplish by doing so. If you plan to communicate with a party, please outline their legal rights and obligations and indicate how you would might use the legal context to effectuate your goals.

END OF QUESTION 1

Question 2 (45 minutes)

Your client Foreignews is launching an advertising-supported website oriented towards U.S. executives doing business in South America. Among the features your client plans to offer is a What’s New area. This area will be composed of articles published by English language periodicals in the various countries in South America. Once every 12 hours, Foreignews’ robot will go to each periodical’s website, make a copy of their articles, and automatically upload the articles to Foreignews’ website. Foreignews has decided to do this rather than just hypertext link to the articles because, by putting the articles on a server located in the U.S., Foreignews’ users will not have to wait for the articles to be sent over the Internet from South America.

Your client has scheduled a conference call to discuss the advisability of launching this feature. Please prepare an outline of the points you would like to cover in the call and provide some brief analysis of why each point is an issue.

[Ignore all international copyright treaties and conflicts of laws issues; assume that the copyright laws of all foreign jurisdictions are identical to U.S. copyright law. Do not discuss any issues related to INS v. AP, NBA v. Motorola or the "hot news" misappropriation tort. While copyright is an important part of this question, there are other issues to address.]

END OF QUESTION 2

Question 3 (30 minutes)

You are approached by a potential client, crapsgambling.com. They intend to launch a gambling website, where users can play online craps, blackjack, roulette and other games of chance “against the house” for real money. The entrepreneurs are aware that there may be issues involved with the legality of what they intend to do. Therefore, their first order of business when they hire a law firm will be to prepare a user “agreement” that users will be required to accept. As far as you can tell, they expect to use this agreement to protect themselves from all legal issues.

Please briefly describe the reasons why the user agreement may not adequately protect their interests.

[Although to some degree this question requires you to identify ways in which crapsgambling.com and its principals might be liable, the focus is on how the user agreement can or cannot deal with such liability and why.]

END OF QUESTION 3

END OF EXAMINATION