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January 2018

Practically Pocket-Sized Guide to Internet Law

From the MLRC Internet Committee, a series of concise articles on a wide-range of Internet law questions that come up in day-to-day media law practice.
in this issue

The Broad Reach of CDA § 230 and Its Limits

John C. Greiner

An overview of the types of Section 230 arguments that plaintiffs have asserted and how the courts have treated their claims.


User Generated Content: Snapshot of Legal Issues

Mark Lerner

Allowing users to post content can raise a host of legal issues, including copyright and trademark infringement, libel/defamation, rights of publicity/privacy and false advertising. This brief snapshot will provide an overview of some of the key issues raised by engaging with UGC.

Online Retractions and Corrections

Thomas R. Burke, Jeff Glasser, Tom Wyrwich and Ambika K. Doran

Publishers may reduce their potential liability from defamation and other claims for original content simply by publishing corrections or retractions that respond to meritorious demands from individuals who claim to have been libeled or otherwise injured online.

When Do the Plaintiff’s Interests Outweigh the Internet Speaker’s Right to Remain Anonymous?

Joshua Koltun

Courts have been grappling with this question repeatedly over the past decade and a half, as anonymous speech has become prevalent on the internet.

Who Qualifies as a Journalist Today for Legal Protections

Judy Endejean

Courts have grappled with treatment of non-traditional speakers, such as bloggers, in a variety of ways in cases dealing with First Amendment issues such as defamation suits, and reporter's privilege.

Enforceability of Electronic Contracts

Ravi Sitwala

When determining the enforceability of an electronic contract, a court will apply the same principles of contract law as it would to a traditional paper agreement.

Data Privacy

Mark Sableman

Since the 1960s, Americans have been warned that the development of intrusive technologies would create a need for new legal protection of information (data) privacy. That time has now arrived, and various laws now address data privacy.


The Right to Be Forgotten

Kevin L. Vick

In 2014, the "right to be forgotten" leapt from the world of law school journals to the frontpages of newspapers and websites on the heels of the Court of Justice of the European Union's Google Spain decision.

Mobile Data Collection

Matthew Fischer and Afigo Fadahunsi

Many incredible capabilities exist as a result of mobile device users disclosing their personal information, and public concern over online privacy breaches has spread to the mobile industry with news stories about geolocation tracking and mobile devices disclosing users' personal information via downloaded software applications.

Recent Developments With The Computer Fraud and Abuse Act

Jeremy D. Mishkin

Courts' applications of the CFAA vary markedly, in large part due to the differing interpretations of the CFAA's key provisions. This article examines this varied treatment.

Access to Electronic or Digitized Records Held in Non-Governmental Containers

Steve Zansberg

The growing body of case law on this topic has formed a fairly strong consensus view: it is the content of the email (i.e. whether it is of a purely personal nature or discusses public business) not its location) that controls whether it is deemed a public record.

Government Access to Text Messages and the Fourth Amendment

Matthew A. Leish

With the proliferation of text messaging and other forms of electronic communication in recent years, courts have grappled with how to apply traditional Fourth Amendment protections to these new technologies.


An ESI “Top Ten”: What Every Media Lawyer Should Know About E-Discovery and Electronically Stored Information

Jeremy Feigelson and Joseph Sano

Our list includes some general rules of the road regarding "electronically stored information" (ESI) and some specific pointers for how ESI issues may play out in media law cases.

Portable Electronic Devices in the Courtroom

Steve Zansberg, Alexander Ziccardi and Nabiha Syed

As the use of technologies and devices continues to expand, courts have developed different approaches to news media requests to post live reports from the courtroom by means of a portable electronic device.

Potential Exposure for Accessing and Using Digital Records

Steve Zansberg and Gregory P. Szewczyk

Courts applying the SCA have arrived at divergent outcomes on whether access to such information is impliedly authorized, depending on what information is accessed, and where the information is housed.


A Brief Description of the Digital Millennium Copyright Act

E. Leonard Rubin and Joseph B. Teig

The DMCA was designed to bring U.S. copyright law squarely into the digital age and to facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education.


Extent of ISPS’ Duties to Prevent Infringement (DMCA §512(I))

John C. Greiner

To protect ISPs that act with no direct or effective knowledge of its users' infringing activities from copyright infringement lawsuits, Congress passed the Digital Millennium Copyright Act.


Deep Linking Around the World

Debra L. Hutchings & Meagan Crowley

A sample of domestic and international deep linking cases specific to the copyright infringement context.

Link Liability – An EU/US Comparison and Guide

Edward Klaris & Alexia Bedat

Generally, in the United States, the act of linking to material that is either copyrighted or defamatory does not, on its own, carry liability. In Europe, however, the analysis has recently become significantly more complex.

News Aggregation Websites: How Much Is Too Much?

Thomas M. Clyde

A number of recent decisions have helped define the contours of the issue, but none has definitively resolved the controversy.

Exploiting the Innocent But Extremely Useful Trade “Hot News” Review and Update

Peter J. Caruso II

In its decision, the FlyOnTheWall panel both significantly restricted the applicability of the “hot news” misappropriation tort and cast a shadow of doubt over an accepted Second Circuit test used to determine whether the “hot news” tort is preempted by federal copyright law.

Evolution of “DMTA” Law

Ravi Sitwala

While Congress passed the Communications Decency Act and the Digital Millennium Copyright Act to protect purveyors of Web sites from state law publication based claims and federal copyright claims based on actions taken by users of those Web sites, it passed nothing having to do with trademark infringement by Web site users.


Net Neutrality – What’s the Fuss All About?

Stephen L. Goodman

Protecting the Open Internet/Net Neutrality has been used as a label to encompass a wide swath of conduct and activities deemed a threat to "Internet Openness.