Internet Law (Law 793) Final Exam

Eric Goldman • Fall 2020

This exam has 1 question. You may use no more than 3,000 words for your answer, including
footnotes (but please don’t use footnotes). Please use a font size that is kind to my aging eyes.

This is an “open book” exam. You may use any written materials you want. However, during the
exam period, you may not communicate about the exam or your answer with anyone (orally,
electronically, or otherwise), other than law school staff regarding exam administration. You
don’t need to do outside research, and such research is unlikely to affect your grade. However, if
you aren’t sure exactly what a statute says, don’t rely on summaries from class—read the statute!

This is a take-home exam. I will email you the exam PDF on November 30, 9 am Pacific. You
must upload your answer to www.examsoft.com/sculaw no later than December 11, 9 pm
Pacific. ExamSoft’s timestamp is irrebuttable evidence of your upload time. IF YOUR
ANSWER IS UPLOADED LATER THAN DECEMBER 11, 9 PM, EVEN BY ONE MINUTE,
YOU WILL FAIL THE COURSE. THERE IS NO EXTRA GRACE PERIOD. NO
EXCUSES! Don’t wait until the last minute to upload your answer, and confirm its successful
upload.

Your answer’s file name should be your anonymous four-digit exam ID number (AGID) and the
course title. In the file itself, include page numbers and your AGID, but don’t include any other
identifying information. At the top of your answer, tell me how many words the answer contains.
I DON’T PLAN TO GRADE AN ANSWER THAT EXCEEDS THE WORD LIMIT BY EVEN
ONE WORD. OMITTING OR MISSTATING YOUR WORD COUNT MAY INCUR
SIGNIFICANT PENALTIES.

Some additional thoughts for you:

 Assume all parties are, and all actions take place, in California. Don’t discuss any statutes
of limitation. Unless otherwise specified, all parties are adults.
 Only address topics we covered this semester.
 Read the questions very carefully. Answer the questions I actually ask. Don’t answer
questions I didn’t ask.
 Allocate your word count smartly. You score most points from issue-spotting and
applying the law to the facts. Organize and prioritize your answer accordingly. It’s OK to
use bullet points, short citation forms, and unambiguous abbreviations. Please quote
statutes or cases only as needed to make your point. It’s OK to use IRAC/CRAC, but I’m
also OK with any method that effectively and efficiently communicates your points.
 If additional information would help your analysis, explain what information you’d like
and why it would help.
 While generally your answer should be based on legal principles, you are welcome to
address other perspectives and concerns.
GOOD LUCK ON THE EXAM, AND HAVE A GREAT WINTER BREAK!

***

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[Note: this question contains some facts from real life. However, I added or changed many
other facts, so this is not what actually happened in real life.]

Jim Cornette is a well-known figure in the pro wrestling world. He has held executive positions
at major pro wrestling leagues. At his personal website, jimcornette.com, he publishes a podcast
with his commentary on wrestling news and personalities. Each month, two million people listen
to the podcast. His Twitter account, @TheJimCornette, has 170,000 followers. He has sold many
t-shirts featuring a photo of his face and the name “Jim Cornette.” He has a protectable
trademark in his name and owns all rights to the photo depicted on his t-shirt.

Graver is a professional wrestler who competes under the stage name “G-Raver.” G-Raver
participates in “deathmatches,” which allow wrestlers to use deadly weapons in the matches. G-
Raver’s weapon of choice is a tattoo needle, an homage to his day job as a tattoo artist.

Cornette retweeted a video of G-Raver suffering a very serious injury during a deathmatch:

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In response to Cornette’s tweet, Graver tweeted back epithets and profanity at Cornette. This
sparked a Twitter feud as the two men repeatedly tweeted insults at each other.

Graver escalated the beef. Graver took the image of Cornette’s face from a t-shirt Cornette sells
to his fans, and Graver photoshopped that photo to create a “Clownette” image:

Graver then created an e-commerce store at a “print-on-demand” vendor named Shopify and
uploaded the Clownette image to the store. Third party merchants, like Graver, can upload
artwork to their Shopify store for printing on various items, like t-shirts. Shopify hosts the store,
and all of its associated electronic files, on Shopify’s servers. Graver sets the price of his items
for sale (above a minimum specified by Shopify). Each time a buyer places an order, Shopify
processes all payments, prints the artwork onto the ordered item, and ships the item directly to

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the buyer. Shopify keeps the minimum price of each item for itself and remits the balance of the
sales price to the merchant (in this case, Graver).

At the store, Graver offered to sell t-shirts containing the “Clownette” image. To promote his
store, Graver registered the domain name “TattooJimCornette.com” (which automatically
redirected any visitors to Graver’s Shopify store’s URL) and tweeted the domain name on
Twitter alongside the hashtag #TattooJimCornette.

Graver named the store “Jim Cornette Clownette shirt.” Shopify automatically caused that phrase
to appear in the store pages’ title tag and keyword metatags. On the store’s pages, Graver
continued his feud with Cornette, including writing:

 “I encourage all of my true fans to permanently tattoo a clownface on Jim Cornette. I

hope you use a rusty tattoo needle! ”
 “More evidence of Clownette’s clown-foolery: Clownette steals money from his
employer to fund his podcast.”

Cornette asked Shopify to remove Graver’s store. Shopify promptly complied by terminating
Graver’s account (which removed the store); and it emailed Graver a warning not to set up
another account or store on its service. Nevertheless, Graver immediately created a new Shopify
account and reimplemented his store so it was identical to the pre-termination version.

To create his store, Graver completed the following screen (there was no other possible way for
him or any other merchant to create a Shopify account):

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Shopify has made the appropriate 512 filings with the Copyright Office, and its TOS specifies
contact information for submitting 512 notices to Shopify and Shopify’s repeat infringer policy.
Some other excerpts from Shopify’s terms of service:

You acknowledge and agree that Shopify may amend these Terms of Service at
any time by posting the relevant amended and restated Terms of Service on
Shopify’s website, available at https://www.shopify.com/legal/terms and such
amendments to the Terms of Service are effective as of the date of posting. Your
continued use of the Services after the amended Terms of Service are posted to
Shopify’s website constitutes your agreement to, and acceptance of, the amended
Terms of Service. If you do not agree to any changes to the Terms of Service, do
not continue to use the Service….

You may not use the Shopify Services for any illegal or unauthorized purpose nor
may you, in the use of the Service, violate any laws in your jurisdiction (including
but not limited to copyright laws)…

You may not create a new account if we have previously terminated an account of
yours…

18 U.S.C. § 875(c) says: “Whoever transmits in interstate or foreign commerce any

communication containing…any threat to injure the person of another, shall be fined under this
title or imprisoned not more than five years, or both.” However, only threats that are sufficiently
credible and imminent to constitute a “true threat” can survive a First Amendment challenge.

After Graver restored his store on Shopify, the store went briefly viral. Over 1 million visitors
came to the store in 24 hours. For 30 minutes, about 1 out of 1,000 visitors to Graver’s store got
a “server too busy” error. Shopify got over 500 complaints from store visitors about the contents
of Graver’s store. Despite the high traffic to his store, Graver’s sales were modest. He sold about
1,000 t-shirts for a total gross revenue of $25,000.

Discuss Graver’s and Shopify’s potential legal liability, including any claims that Graver or
Shopify may have against the other. Do not discuss any claims Twitter may have as a plaintiff;
personal jurisdiction; 17 U.S.C. §§ 1201 or 1202; web browsing as infringement; criminal
copyright infringement; COPPA; GDPR; CCPA/CPRA; ECPA; tax; antitrust; or any personal
injury or property damage that the t-shirts might cause.

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