Course Goal

1
Course Goal UNDERSTAND HOW FIRMS INTEGRATE
MARKET, TECHNOLOGY AND POLICY INTO AN
INTEGRATED E-STRATEGY
POLICY
MARKET
INTEGRATED E-STRATEGY
TECHNOLOGY
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Policy Matters to E-Business
POLICY
I believe over the next few years the future of
the Internet will be determined more by policy
choices than technology choices. -- Steve
Case, Chairman, AOL
In the coming years we as a country will make
many decisions on internet policy, and one or
two of these may well have profound and lasting
effects on society as a whole. -- Jeff
Bezos, Chairman and CEO, Amazon.com
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Policy Matters Firms Use It For Competitive
Advantage in New Economy
In Germany, Sony and Phillips use 100 year old
regulation to stop online auction. Malaysian
Internet start-up travel agency is shut down
after a tip from an established firm that the
start-up lacks a license. AOL calls for
broadband regulation against ATT (which had set
up exclusive ISP arrangement with Excite).
Amazon successfully sought an injunction
against Barnes And Nobles for violating their
1-click patent. Ebay received an injunction to
stop auction aggregator Bidders Edge from
compiling and displaying information from Ebays
site.
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What Policy Frontiers Will E-Business Face in
the Next Five Years
Taxation
Intellectual Property
Privacy

• What policy issues will be most
• critical for e-business?

Encryption
Trade Associations
Congress

• Which institutions will
• govern the policy?

Regulatory Agencies (FTC, FCC)
International Organizations

• Which groups will compete with
• e-business in policy formation?

Parent/Teacher Groups
Privacy Groups
Artist and Writer Associations

• Will the policy issues unite
• or divide e-business?

Established firms v. new entrants?
Small v. Big?
Content providers v. portals?
State v. National?
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Threat of New

Alan Greenspan, August 2000 should recent
positive trends in economic growth falter,
market-oriented resource allocation will wane
and protectionism and state intervention will
begin to reassert , including the United States.
Virginia Postrel, September 2000 In the U.S.
new regulations tend to come after prolonged
periods of prosperity. When times are good,
economic restrictions look relatively cheap.
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Some Emerging Developments
POLICY

• Big Battalions of Business Technology
• Govern National and Global Policy
• International businesses GBD, GIP
• NGOs ICANN, WIPO, IETF
• Biggest Pure Web businesses buy influence
• Fragmentation Behind Issues, e.g.,
• Net Coalition versus Ebay
• Strange Bed Fellows
• DMCA (anticircumvention provision) vs. Intel

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Privacy and IP in Radar Screens
Taxation
Intellectual Property
E-signatures
Jurisdiction
Authentication
Competition Law
Encryption
Privacy
Anti-Trust
Critical Infrastructure Protection
International Content Restrictions
Digital Divide - disable
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Policy Overview
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Policy Overview
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Jurisdiction

• The Internet has no territorial boundaries.
• To paraphrase Gertrude Stein, as far as the
  Internet
• is concerned, not only is there perhaps no there
  
• there,' the there' is everywhere where there is
• Internet access.
• - Judge Nancy Gertner, DEC. v. Altavista 1997
• We order the company YAHOO! Inc. to take all
• measures to dissuade and make impossible any
• access via Yahoo.com to the auction service for
• Nazi objects and to any other site or service
  that
• may be construed as constituting an apology for
• Nazism or contesting the reality of Nazi crimes
  ...
• Judge Jean-Jacques Gomez, UEJF et LICRA v. Yahoo!
  Inc.
• May 2000

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Zippo Test Active vs. Passive Test
Passive minimally interactive information-based
sites one way communication with no opportunity
for cross-talk between the user and the site,
then, the site, considered in isolation, is
usually deemed an insufficient contact with the
from state and no personal jurisdiction can be
found Active greater interactivity and
end-user contacts two way dialog I.e., email,
-800 number, other call to action, banner adds
targeted to the specific jurisdiction (e.g., See
us at Comdex 99). If the site has commercial
element, a court will be more likely to find
jurisdiction. Other non-Internet related
contacts (e.g., phone calls, faxes, snail mail)
increases minimum contacts analysis. ZIPPO
TEST courts should refrain from asserting
jurisdiction Over passive sites, while
jurisdiction over active sites is appropriate.
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Jurisdiction- Internet Only

• Web page alone does not confer personal
  jurisdiction
• Web page accessible from forum state by itself
  forms
• sufficient basis for personal jurisdiction
  by effect of site
• within state
• a. email available personal jurisdiction
  sometimes found
• b. commercial e-mail links
• c. web site plus advertising and/or toll
  free number
• d. nationwide advertising or toll free
  number
• e. actual or implied sales
• Purposely direct activities or take deliberate
  action to
• create substantial connection
• Explicit notice of geographic limitation can aid
  in ensuring
• that legal jurisdiction is limited to some
  extent

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ICANN (ICANN.org)

• privitization of the control of the domain name
  system (since 99)
• increase competition and democratic process
• now over 50 registrars of domain names
• mandatory resolution process
• not judicial
• process three approved resolution providers
• WIPO, Natl Arbit Forum, eResolution
• transfer or delete domain names
• evidence submitted with a complaint
• one time
• most of the time, panelists are not accepting
  additional
• evidence

• disputes must satisfy three criteria
• identical or confusingly similar
• has no rights or legitimate interest
• registered and used in bad faith

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ICANN (ICANN.org) cont.

• No rights (demonstrating no rights)
• if you file a complaint that the other party has
  no rights
• must satisfy all three
• (1) no legitimate or demonstrable preparations
• (2) respondent is not commonly known by
  domain name
• (3) no legitimate noncommercial or fair use
• Showing bad faith
• the domain name was registered
• Sell to the trademark owners for more than cost
  of
• Prevent the owner of the trademark from using the
  
• mark
• (3) Disrupt the business of the trademark owner
• (4) Using the domain name to divert business of
  the owner of the trademark
• (5) Willful trademark infringement

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ICANN (ICANN.org) cont.

• 5433 domain disputes adjudicated
• Decisions are posted
• Trademark owners have won 80-85 of cases
• Takes 1-2 months from filing to resolution
• ICANN fee 1,000-2,000
• Signs of appeals.
• (5) Willful trademark infringement

- What is the controversy about ICANN about?