Internet and the Market:

E-Commerce & Intellectual Property

Spring 2002

University of Miami School of Law
Tue & Th 2:00-3:20
Room F408
Michael Froomkin

Class Policies

This document last modified Dec 20, 2001.

There is no casebook for this class. The first set of course materials are available in the Distribution Center. Some - but not all - will also be linked from the web syllabus.  Please read the Class Policies (located at before the first class, and do the first set of readings ("Introduction").

General Information

Getting Started

Please do two things before the first class
  1. Acquire the first set of materials from the Distribution Center. Read the "General Information" and the first assignment.
  2. Join the class mailing list by clicking on this link and filling out the form  (PLEASE NOTE: The computer department informs me that this form interface to the list sign-up currently is malfunctioning....) Click here instead.
Please try to think of the list as an extension of class: anything relating to the substance or procedure of the class is welcome, but irrelevant things are not. The usual rules of civility apply to email just as they would to class. And, I give class participation credit for thoughtful, relevant, pithy, participation on the list, just as I do for similar contributions in class.

Class Style

The larger the class, the harder it is to have the free-wheeling seminar style I like best. As a result unless class shrinks substantially, I will lecture a little. I hope that most of the class will proceed by discussion most of the time.  Most of the technical material is in the first few classes, so I'll be doing more lecturing and explaining at the start than I hope would ordinarily be needed..

I tend to lead discussions with a lot of questions. Some of them are leading questions, some of them are misleading questions, but oftentimes they are just plain questions as I am curious as to your views, or I have no idea what the answer is either.

How to contact me.

I urge you to contact me if you have questions, comments, or suggestions about the class. I cannot stress strongly enough how important it is to come and see me (or phone me) early in the semester if you think you need help understanding something. If you are doing the reading but still feel lost or confused, don't wait until the last three weeks of class. I can help. But not at the last minute.

You can call me at 284-4285. Most days, I am in and out of the office. If you get my voice mail, leave a number and state when is the best time to call back.

You can come by my office, Rm. 382, any time, but since I'm in and out erratically, I advise you to call ahead and make an appointment I sometimes get busy and may have to ask you to come back later.

My office hour is tentatively scheduled for Wednesday 10:30am to 11:30am (watch this space for changes). No appointment is required to see me then; I'm also available at other times by appointment.

Probably the easiest way to contact me is to send me e-mail at Include a telephone number if you prefer a more human response.

Course Requirements

Attendance. I used to be a total softie about attendance. People took unfair advantage. So now I overcompensate and play hardball. I will take attendance as and when it suits me, which tends to mean just about every class. If you miss a class I don't want to hear your excuses unless it involves a hospital (for you or yours) or worse. Take it up with the Dean of Students (and be aware I plan to ignore "for your consideration" or indeed anything less than "please excuse" notes from the Dean of Students). You get two free passes -- miss more than two classes without an excuse that the Dean of Students office directs me to accept and I reserve the right hold it against you in some way relating to class participation credit. The more classes you miss, the more I may hold it against you. If you are consistently absent I will contact the Dean of Students office and ask them to drop you from the class.  But so long as you skip no more than two classes without an excuse I guarantee you will not suffer any deduction from class participation credit, so there's no need to even bother with excuses for the rare and inevitable absence. Please make every effort to come on time. If you can't make it on time, it's still better to come late than not at all.

Taping. No classes may be taped without my specific permission, which will not be given for reasons other than verified medical emergencies, or to students with particular disabilities.  Tapes make me nervous.  So do ID cards.


Disabilities. This class, like most law school classes, is heavily oriented toward reading a large quantity of difficult material in a small amount of time. If you are aware that you have a learning disability, or if you just think that it takes you twice as long to learn things by reading as other people, please talk to the Disabilities Issues Coordinator, Assistant Dean Marnie Lennon who can tell you about resources here that you may find valuable. All discussions will be totally confidential. Any student who believe (s)he suffers from acute "stage fright" and underperforms in public should see me early in the semester to see if we can work out special arrangements in which you e-mail some answers rather than giving them orally.

Electronic Mailing List. I operate an electronic mailing list for this class. Any message sent to the list will be transmitted to me, and to all other members of the list, as will replies. I hope this will provide a convenient way for you to share questions and answers about the course. Participation in the list is like class participation: providing good answers to your colleagues' questions is another way to rack up class participation credit. You are required to join this mailing list . Some assignments may require you send messages to the list. Reading and using the list is an important part of this class. Electronic signup is malfunctioning. Click here instead.

Paper Options

You may select the paper option, which may also count towards the writing requirement. You get the same three credits, and instead of taking the exam your grade is based predominantly on your production of a a 25-35 page paper that provides an original analysis of an Internet-related legal subject. Your grade will also include a substantial class participation component. I expect everyone to do the reading and to be prepared for class. You may select any topic vaguely related to the subject of the course. I will be happy to help you pick a topic if you have a general area of interest, although experience has shown that the best writing tends to result from topics that students choose themselves.

If you are interested in the paper option, please turn in a two page memo (on paper or in the body -- not an attachment -- of an email) on your proposed paper topic, listing the issues you intend to address and (perhaps) your first guess as to what you will say about them. I need this memo no later than our fourth class. Based on this memo I will either approve the topic or propose modifications. I will expect you to turn in a rough draft at a date to be agreed some time around midterm, and I will return the rough draft with comments as soon as I can, on a first-come, first-served basis. You will not be graded on your rough draft -- the comments are entirely for your benefit with no strings attached.   The final draft is due the day before the final exam. In addition to giving me a hard copy of your paper, please turn in a floppy disk containing the full project to my secretary, Rosalia Lliraldi, who sits near room 382 in the library.

I advise you to consult Eugene Volokh, Writing A Student Article for a wealth of useful tips on picking a topic and writing the paper.

How to subscribe to the mailing list

It's easy: just click here and send the email from the computer at which you wish to receive mail.

Please try to think of the list as an extension of class: anything relating to the substance or procedure of the class is welcome, but irrelevant things are not. The usual rules of civility apply to email just as they would to class. And, I give class participation credit for thoughtful, relevant, pithy, participation on the list, just as I do for similar contributions in class.

Answers to frequently asked questions:

How long should I be spending on homework each week?

A long time. This stuff is not easy and there is quite a lot of it. The average law school class ratio is 3-5 hours of reading for each class hour. I aim to stay within these norms, but to err is human.  I'm told I get awfully human sometimes.

Where can I look things up if I'm confused?

The World Wide Web is a good place to look for information, although there's always reason to doubt the accuracy of what you find. If you are confused about something - or if you find something that sorts out your confusion - please send a note to the class mailing list. I'll be watching the list and will try to answer questions posted there. If you are too shy to post to the list, you can email anonymously, or you can send me a note and I'll strip off your name before replying to the list. Please note in your email that you wish your identity kept out of any public response.

Should I buy a commercial outline or hornbook?

If you hear of a good one for this stuff, please let me know.

Will this be on the exam?

Anything we discuss in class, on the e-mail mailing list (so long as it's relevant to the class, of course), or that appears in the assigned portions of the syllabus, or any additional photocopied readings that I assign or hand out is fair game for the exam, unless I specifically say otherwise.

What can I do to get a better grade on the exam?

The number one most common error on law school exams is a failure to read the question carefully. Students tend to prepare by subject, e.g. "the Erie doctrine". When they see a question with the word "Erie" in it, they take it as a cue to write down everything they remember about the Erie doctrine and the Erie line of cases regardless of its relevance to the question. This is rarely a good move, if only because you waste time you could have spent writing something relevant, and it's usually a particularly BAD move on open-book exam, where the premium is on analysis and application, not rote memory. Read the question. Try to figure out what the point of it is. Stick to the point in your answer. My questions are rarely as simple as "tell me everything you remember about the Erie doctrine". And I do not give partial credit for correct but irrelevant information. (I do sometimes give partial credit for correct but misplaced analysis of a complex problem caused by a "wrong turn" at an earlier stage of the analysis, but that's a different scenario.) Having said all that, you should of course make full use of relevant cases, citing them by name. Cases are important. But so are other things.

The number two most common error on law school exams consists of misunderstanding the nature of legal writing. Good legal writing is clear, precise, and well-organized. It is written in plain, simple English, with as few long words as possible. (Yes, many judges do not write well.) There is no point in trying to be clever or funny. At all costs avoid using fancy words if you are not absolutely certain what they mean. You are being graded on substance, not style. Resist the temptation to use slang ("Get real!" and "Strike three!" are unfortunate examples from past exams). Resist the temptation to use legal or Latin terms if a simple English word will do. Don't quote rules at length (they are being given to you as part of the exam). But do be sure to cite rules and cases where relevant, and to explain the relevance.

A related, and also frequent, error on law school exams is a failure to be sufficiently specific. Legal writing is a form of technical writing. It thrives on precision and often on detail. I suggest that you always avoid the passive voice because it allows you to neglect to specify the identity of the actor in your sentence. It's far better to use a boring writing style "Subject, verb, predicate" over and over again than to be confusing or to leave out something important.

A third, surprisingly frequent, error is forgetting the point of view you are supposed to take in answering a question. Some questions ask you to be the judge; others ask you to be the advocate for a party; still others may require that you step back from the fray and adopt a policy perspective. There are differences between these roles. For example, a judge is quite likely to be concerned about judicial economy. A litigant is only going to urge a course of action that furthers judicial economy if it furthers her interests; otherwise, a litigant is going to try to explain to the court why a particular outcome is just even though it is not the most efficient. On the other hand, just because you are a litigant does not mean that you ignore authority contrary to your position. The best arguments are those that take full account of the strongest possible argument on the other side and demolish it; the worst arguments are those that sound like the author never heard of the other side ... and if there is authority for the other side, the author of the weak argument may be facing Rule 11 sanctions. If a question asks for an argument, make one; if it asks for both sides, make two arguments and be sure you label which is which.

My grades have been disappointing. What can I do to improve?

The first thing to do is to make an appointment with the professors who gave you the disappointing grades in order to discuss the exam. Although your professor cannot change the grade, you should find out what went wrong so that you can avoid making similar mistakes in the future.

I never did much writing in college, where I can I get writing help now?

If you have reason to believe that you need additional help, feel free to talk to me. Also, you should watch for announcements about the U.M. Writing Center. Note, however, that the kind of help you are likely to be offered from me will probably mean extra work for you, such as writing additional practice essays.

What can I do to help me become a better lawyer?

One of the best things you can do is become well-informed about the world around you. Subscribe to a national newspaper such as the New York Times . The "technology" section is particularly good for this course.

How do I keep up with breaking news regarding the Internet?

Good question. It's not easy. I suggest reading some of the sources listed at the end of the course outline

Last modified: Dec. 20, 2001