Law of Computer Technology

 (17-562, 17-662, 17-762)

FALL 2024

OFFICIAL COURSE WEB PAGE

Tuesdays and Thursdays  8:00 - 9:20 a.m. Dougherty A302

In-Person Expectation

Course Overview

This course is both a survey of computer law and an examination of how courts, juries, and administrative agencies make decisions on issues involving computer technology.  It is also a survey of the most important and controversial topics in technology law today.  The material is divided into six primary subjects:

1. Legal process: how courts operate, differences between civil and criminal law, who has to obey the determination of a court, over whom a court can exercise power, and regulatory law. 
2. Evidence: what has to be proven to a court and how it is done, rules of evidence, burdens of proof, expert testimony. 
3. eBusiness Law: software licenses, clickwrap contracts, electronic transactions.
4. Personal Intrusions: social media, libel and defamation, data privacy, position monitoring.
5. Intellectual Property: Trade secrets and confidentiality agreements.  Copyright: fair use, software copyrights.  Patents: what is patentable, how patents are obtained, software patents, Internet patents. 
6. Government Regulation:  AI law and regulation, Net neutrality, antitrust principles, computer crime.

Instructor

Michael I. Shamos, Ph.D., J.D,, is Distinguished Career Professor in the School of Computer Science.  Dr. Shamos is an intellectual property attorney admitted to the Pennsylvania Bar and the Bar of the United States Patent and Trademark Office.  He has previously taught courses in Intellectual Capital, eCommerce Legal Environment and Internet Law and Regulation for the Tepper School of Business, as well as courses in the Computer Science, Mathematics and Statistics Departments.  He was Director of the MSIT in eBusiness Technology in the Institute for Software Research at Carnegie Mellon from 2004-2018. He is now Director of the M.S. in Artificial Intelligence and Innovation.  Dr. Shamos is a frequent expert witness in computer copyright, patent and electronic voting cases.

No textbook

HOW TO GET AN "A" IN THIS COURSE

Read and follow the advice in the Course Handbook.

Course Syllabus

Topic 1 - THE LEGAL PROCESS

1.  COURTS  (Tuesday, August 27, 2024) – The state and federal legal systems of the United States.  The appellate court hierarchy: which courts are bound by which decisions?  How to read a legal opinion (a critical skill for the course).

Reading: Introduction to the Court System (Barclay, 4 pp.)
Appellate Review and Stare Decisis (Judge Kelsey, 6 pp.)
How to Read a Legal Citation, (3 pp.)
How to Read a Judicial Opinion: A Guide for New Law Students (Kerr, 9 pp.)
Basic Legal Citation: Starting Points (3 pp.)  
Luis v. Zang, No. 18-3707 (6th Cir. Apr. 29, 2019) (6 pp.)
Hepp v. Facebook, 2:19-cv-04034-JMY (E.D. Pa., June 5, 2020).  Complaint(15 pp.)   Opinion(13 pp.) 

Optional reading: A Guide to Legal Literacy (California State Bar, 73 pp. -- contains a good glossary)
The Judicial System in North Carolina 25 pp. -- shows the structure of a state judicial system
Teaching Stare Decisis Using Browsewrap Agreements (Sprague)(17 pp. -- contains material relevant to Lecture 9)
Understanding the Federal Courts (47 pp. - a deeper dive into the U.S. Federal Court system)

Reading: A Guide to the Rulemaking Process (Office of the Federal Register, 11 pp.)
The Reg Map (1 p. diagram)
New York Automated Employment Decision Tools Regulation 5-200 (5 pp.)
Taylor V. Huerta (D.C. Cir., 2017) (10 pp.)
15 U.S.C. 45 (Powers of the Federal Trade Commission, 6 substantive pp.)
Mail or Telephone Order Merchandise Rule Notice of Comment Period (2 pp.)
Final Mail or Telephone Order Merchandise Rule, 16 C.F.R. 435 (5 pp.)

Optional Reading: Code of Federal Regulations (C.F.R.)  [Just browse, particularly Titles 15, 16, 37 and 47.]
Complaint in GM v. Dorman (E.D. Mich.) (32 pp.)
A Business Guide to the Federal Trade Commission's Mail or Telephone Order Merchandise Rule (11 pp.)
Children's Online Privacy Compliance Guidelines (12 pp.)
Children's Online Privacy Protection Act (COPPA) [particularly Section 6502]  (Backup copy in .pdf) (10 pp.)

3. INTERPRETING STATUTES  (Tuesday, Sep. 3, 2024) – Technology advances rapidly, and statutes and legal decisions can't keep up.  This means that old laws are constantly being applied to situations not contemplated when the laws were originally passed.  This means that a court must interpret the words of a statute in a new context, a process called statutory interpretation.  This is not a haphazard process, but is guided by specific rules which, unfortunately, can produce anomalies to be remedied later by the legislature.  We will look at interpretation of existing statutes in light of new technology not contemplated when the statutes were passed.. THIS IS THE SINGLE MOST IMPORTANT LECTURE IN THE COURSE.

Reading: Statutory Construction Act, 19 Pa. C.S. §1921 (4 pp.)
Regina v. Ojibway (3 pp. -- a classic of legal writing)
McBoyle v. U.S., 283 U.S. 25 (1931) (Supreme Court, 2pp.), McBoyle v. U.S., 43 F.2d 273 (10th Cir. 1930, 4 pp.)
People v. Bugaiski, 224 Mich. App. 241 (1997)  (3 pp. -- This is a critical case for understanding the important principle of ejusdem generis)
AT&T v. City of Portland, 216 F.3d 871 (9th Cir. 2000)

4. JURISDICTION (Thursday, Sep. 5, 2024) – The jurisdiction question is, "when does a court have the power to hear a particular case and bind the parties by its decision"?  Jurisdiction is often a key issue in determining whether a lawsuit is brought at all, and where and against whom it is brought.  Computer technology, particularly networking and wireless communication, has changed the way courts think about jurisdiction, which has historically been tied to physical presence in a particular state.

5. INTERNET JURISDICTION (Tuesday, Sep. 10, 2024)– The Internet has raised a host of new jurisdictional questions because packets follow unpredictable paths during transmission and might pass through multiple states without the knowledge or intent of the sender.  Does each of these states have jurisdiction in a crime or breach of contract occurs as a result of the transmission?  If not, which states should have jurisdiction and why? 

7.  SCIENTIFIC EVIDENCE (Tuesday, Sep. 17, 2024) – Some trials involve opinion evidence.  For example, what was the cause of the Minneapolis bridge collapse?  Did the software substantially perform according to its manual?  Does this technological measure effectively control access to a copyrighted work or not?  These are scientific matters not within the skill of either the judge or jury, so must be proven through expert testimony.  Who is an expert?  How do they qualify?  What happens when experts disagree (they always do in a lawsuit)?  How can an expert be challenged?  When are scientific theories recognized by courts?

8. SOFTWARE LICENSES (Thursday, Sep. 19, 2024)– What can you do with software you buy in a store or download from the Internet?  What are the conditions under which such software is provided?  What is the effect of clicking "I accept" on a license agreement that is too long to read or difficult to find?  What about freeware, shareware and open source software?  Are shrinkwrap, clickwrap and browsewrap agreements enforceable?

9. ELECTRONIC TRANSACTIONS (Tuesday, Sep. 24, 2024) – Ordinary sales transactions in the brick and mortar world are governed by the Uniform Commercial Code, some form of which has been enacted in 49 states.  The country has been struggling, though, to develop a consistent statute that applies to electronic transactions, in which the traditional methods of identifying parties and inspecting goods are not available.  Two competing statutes are the Uniform Electronic Transactions Act (UETA) and the Uniform Computer Information Transactions Act (UCITA), which we will compare and contrast.

10. DATA PRIVACY (Thursday, September 26, 2024) – Privacy is well-covered in other ISR courses, so we will just scratch the surface to interest you in further study of the subject.  Exactly what is data privacy and why do people want it?  We'll look at the patchwork of statutes around the country that emphasize various aspects of data privacy and then console ourselves over the lack of any coherent body of data privacy law in the United States.  EU General Data Protection Regulation (GDPR), California Consumer Privacy Act (CCPA), data breach notification.  

11. DEFAMATION, FREE SPEEECH AND SECTION 230 (Tuesday, Oct. 1, 2024) – With websites, Twitter, Facebook and other social media, everyone is now a publisher and, for that matter, an instant publisher. This has given rise to fake news, doxing, revenge porn and other such acts. There has always been a tension between freedom of speech and one's right not to be defamed or embarrassed through publication of false information (or wrongful revealing of true information).  Under the Communications Decency Act (Section 230), when is a website liable for the positings of its subscribers? Because the Internet is a worldwide medium, it is possible to cause great damage in another country without leaving home, and, more important, without subjecting oneself to the jurisdiction of foreign courts.  Or is it?  Can imprudent social media posts be retracted so they cannot be used against the poster in the future?  Is it legal to collect a person's posts and archive them, hoping to use them again the poster in the future?

12. TRADE SECRETS (Thursday, Oct. 3, 2024) – A good rule of thumb is that something is a trade secret if it is secret and relates to trade (really).  All fast-moving technological fields, particularly the computer field, are replete with trade secrets.  What methods are legitimate to discover a competitor's trade secret?  Reverse engineering?  What happens if improper methods (theft, bribery) are used?  When does a trade secret cease being a trade secret? 

Optional Reading: Syncsort v. IRI (D. N.J. 2011) (36 pp.)
Ford Motor Co. v. Lane, 67 F.Supp.2d 745 (E.D. Mich. 1999) (11 pp.)
Cross Media Marketing Corp. v. Marie Nixon, 06 Civ. 4228 (MBM) (S.D.N.Y., August 11, 2006) (46 pp.)
Jennings v. Election Canvassing Commission (7 pp.).    Appellate decision (3 pp.)

13. CONFIDENTIALITY AGREEMENTS (Tuesday, Oct. 8, 2024) – Almost every company in the computer industry requires employees to sign confidentiality and non-competition agreements.  Exactly what can they require people to sign and what can be enforced in court?  Surprisingly, there are vast differences among the states concerning these contracts.

Reading: HP Complaint Against Mark Hurd, filed Sept. 10, 2010 (51 pp. -- only the first 18 are significant)
Mark Hurd's Separation Agreement from Hewlett-Packard (7 pp.)
California Reject Inevitable Disclosure Doctrine (2 pp.)
Schlage Lock Co. v. Whyte (Cal. App. 4th Dist., Sept. 12, 2002)

14. DOMAIN NAMES (Thursday, Oct. 10, 2024) – How domain names are assigned and registered.  What happens when trademark owners have a dispute over the same name, e.g., someone registers heinz.biz and H.J. Heinz objects?  Who wins?  (You probably know the answer to that, but what are the rules that apply in less obvious situations?)  Domain name trickery: cybersquatting, metatagging, framing and typopiracy. 

Reading: Full Sail, Inc. v. Spevak (Case 6:03-cv-887-Orl-31JGG, M.D. Fla., 2003) (15 pp., the District Court case)
Full Sail, Inc. v. Spevak (WIPO Case D2003-0502) (7 pp., the UDRP dispute)
ICANN Uniform Dispute Resolution Policy (6 pp.)
Sharton, Domain Name Disputes: To Sue or Not to Sue (6 pp.)
Visa International Service Association v. JSL Corporation (D. Nev. Dec. 27, 2007) (16 pp., regarding the use of "e" as a prefix in a trademark)
Zyliss AG v. Gourmet Kitchen (National Arbitration Forum Claim FA0306000162069) (6 pp., the Xyliss domain name dispute)

Optional Reading: Avery Dennison v. Sumpton, 189 F.3rd 868, 880-81 (9th Cir. 1999) (6 pp.)
Greenstone, Overview of Internet Domain Law (23 pp.)
Cable News Network v. CNNEWS.COM, 56 Fed. Appx. 599 (4^th Cir. 2003) (6 pp, court transfer of a domain name)
Geico v. Google, 330 F.Supp. 2d 700 (E.D. Va. 2004).  (21 pp., use of "Geico" on Google.)
Memorandum of Understanding between U.S. Department of Commerce and ICANN (7 pp., the document by which ICANN obtained control of domain names)
Moseley v. V-Secret Catalogue, Inc., 537 U.S. 418 (2002) (19 pp, Supreme Court test for trademark dilution -- Victor's Secret v. Victoria's Secret)
Panavision v. Toeppen, 141 F.3d 1316 (9th Cir. 1998) (13 pp.)
UDRP Proceedings Indexed by Name (Website)
Washington Post v. Total News, (Case No. 97 Civ. 1190 (PKL), S.D.N.Y., filed Feb. 20, 1997) (5 pp.)

15. COPYRIGHT (Tuesday, Oct. 22, 2024) Copyright is one of the hottest topics in computer law right now and will occupy us for two weeks.  This lecture deals generally with the rights of copyright owners and what is copyrightable and what is not, the policy behind copyright and the relationship between the cost of copying and the tendency to infringe.

Reading: Feist Publications v. Rural Tel. Service Co., 499 U.S. 340 (1991) (13 pp. -- critical case: the demise of "sweat of the brow" copyright)
Naruto, a Crested Macaque, by and through his Next Friends, People for the Ethical Treatment of Animals, Inc. v. Slater et al. (9th Cir., 2018) (the "Monkey Selfie" case)
Morrissey v. Procter & Gamble, 379 F.2d 675 (1st Cir. 1967) (2 pp.)

Optional Reading: Copyright and New Technologies (15 pp.)
Let's Swap Copyright for Code, by Christina Reger (31 pp.)
New York Times Co. v. Tasini, 533 U.S. 483 (2001) (21 pp -- applies ejusdem generis)   Dissenting opinion. (20 pp.)

16. COPYRIGHT FAIR USE (Thursday, Oct. 24, 2024)– What use can be made of the copyrighted work of others?  This is somewhat defined in the United States Code at 17 U.S.C. §107, but court decisions interpreting this section vary widely.  We'll talk about sampling, and the safe harbor for ISPs, the Google (YouTube) and Internet Archive cases.

Reading: American Geophysical Union v. Texaco, 60 F3d 195 (2d Cir. 1994) (29 pp. Not all "research" use is "fair use")
Author's Guild v. Google (2d Cir., Oct. 16, 2015) (51 pp. - VERY IMPORTANT CASE ON FAIR USE BY GOOGLE BOOKS. Skim for main ideas.)
Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984) (the Betamax case) (43 pp. Explains why recording TV shows is fair use)
Use My Photo (NY Times, Oct. 1, 2007) (3 pp.)

Optional Reading: CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004) (26 pp.)
Warhol Foundation v. Goldsmith (Sp. Ct. May 18, 2023) (87 pp.) When is a work transformative?
Hachette v. Internet Archive (S.D.N.Y., March 24, 2023) (47 pp.) When is a benficial use not fair?
Sony v. Connectix, 203 F.3d 596 (9th Cir. 2000) (12 pp.)
LiveNation Motor Sports, Inc. v. Davis, 81 USPQ 2d 1267 (N.D. Tex. 2006) (12 pp.)
Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007) (12 pp.)
Parker v. Google (3d Cir. 2007) (48 pp.)

17. COPYRIGHT IN COMPUTER PROGRAMS (Tuesday, Oct. 29, 2024) – Computer programs contain both human expression and utilitarian components; that is, they do not merely express concepts but serve as instructions to real machines to perform useful functions.  There has always been tension as to whether computer programs ought to be copyrightable at all, since some believe that granting a copyright on a program is effectively conferring a long-term patent on technology that probably has a short lifetime.  This tension has given rise to a great deal of litigation and now almost every software copyright case filed meets with a defense that the program was not copyrightable in the first place.  We will explore the limits of what is copyrightable and what is not.  Abstraction-filtration-comparison.  The Lotus v. Borland and Lexmark cases. Are APIs copyrightable? Oracle v. Google.

Reading: Copyright Infringement of Computer Software (3 pp.)
Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992) (22 pp.)
Lexmark Int’l, Inc.. v. Static Control Components, 387 F.3d 522 (6th Cir. 2004)(32 pp.)
Lotus v. Borland, 49 F.3d 807 (1st Cir. 1995) (20 pp.)
Oracle v. Google,750 F.3d. 1339 (Fed. Cir. 2014) , (69 pp. -- skim for ideas. Controverisal ruling that APIs are copyrightable

18. DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) (Thursday, Oct. 31, 2024) – The session is devoted to the extremely controversial statute the "Digital Millennium Copyright Act" (17. U.S.C. §1201ff), which fundamentally makes it a crime to circumvent various forms of data and software protection, such as breaking copy protection or encryption on files to allow them to be copied.

Reading: A&M Records v. Napster, 114 F.Supp.2d 896 (N.D. Cal. 2000), aff’d 239 F.3d 1004 (9th Cir. 2001, 16 pp.), aff’d after remand, 284 F.3d 1091 (9th Cir. 2002) (56 pp., skim for ideas)
Digital Millennium Copyright Act (U.S. Copyright Office Summary) (18 pp.)
UMG Recordings, Inc. v. mp3.com, 92 F. Supp. 2d 349 (S.D.N.Y. 2000) (10 pp.)
Online Intellectual Property Cases Test Copyright, Free Speech Tension (5 pp.)

Optional Reading: American Broadcasting Cos. v. Aereo, Inc., 134 S.Ct. 896 (June 25, 2014)  (35 pp.  The latest word on fair use of entire works.)
From Sony to Grokster (47 pp.)
Digital Rights Management (18 pp.)
MGM v. Grokster, 545 U.S. 913 (2005) (55 pp.)
Universal City Studios et al. v. Reimerdes, 111 F.Supp.2d 194 (S.D.N.Y. 2000) (51 pp.), aff’d 273 F.3d 429 (2nd Cir. 2001) (25 pp.)
Digital Rights Management II (22 pp.)
Online Policy Group v. Diebold, 337 F. Supp. 2d 1195 (N.D.Cal. September 30, 2004) (16 pp.)

NOV. 4. DEMOCRACY DAY (ALSO KNOWN AS ELECTION DAY). NO CLASS.  PLEASE VOTE IF YOU ARE ELIGIBLE.

19. PATENTS (Thursday, Nov. 7, 2024) – Huge amounts of money can be awarded in patent cases, e.g. hundreds of millions of dollars or more. What is a patent?  The tests for patentability: novelty, usefulness and non-obviousness.  What is obvious and who decides?  The patent examining process. What are the parts of a patent and what constitutes infringement? 

Reading: An Overview of the US Patent System (6 pp.)
The Patent, Used as a Sword, by Duhigg & Lohr (13 pp. , of critical importance)
Legal FAQ: Introduction to Patent Law, (4 pp, Reasoner & Morrow)
Patent Litigation for High Technology and Life Sciences Companies, (17 pp., Fenwick & West)
Hartman et al. U.S. Patent 5,960,411 (19 pp., the famous Amazon 1-click patent.  Jeff Bezos is one of the inventors)
Loebner U.S. Patent 6,019,393 (Example of a silly patent that should never have issued.)

Optional Reading: The Admissibility and Utility of Expert Legal Testimony in Patent Litigation, Pollack
Patent Law Principles and Strategies, (29 pp., Auerbach)
Yang et al. U.S. Patent 6,536,068 (31 pp. The toothbrush patent discussed in class)
KSR International v. Telelex, 127 S. Ct. 1727 (2007) (31 pp., major Supreme Court case on obviousness)

20. SOFTWARE PATENTS (Tuesday, Nov. 12, 2024) – A huge number of software patents are now being issued, at the rate of hundreds per week.  They have produced a great deal of litigation and consternation in the software industry.  We will look at what is patentable about software and algorithms and examine some the challenges being brought against software patents.

Reading: Alice Corporation Pty. Ltd. v. CLS Bank International et al. (Sup. Ct. 2014) (21 pp.)
Impression Products, Inc. v. Lexmark International, Inc. (581 U.S. 1523, May 30, 2017) (26 pp.)
IP v. Red Hat Complaint (5 pp., a typical but brief patent complaint)
Software Patent Litigation , (17 pp., McDonald et al.)
Levergood et al. U.S. Patent 5,708,780 (68 pp., a fundamental eCommerce patent, later ruled obvious.  Skim this -- no need to read it all.)

Optional Reading for those interested in software patents: Patent Scope and Innovation in the Software Industry, (58 pp, Cohn & Lemley)
An Empirical Look at Software Patents, (53 pp., Bessen)
Emerging Claim Formats for Software Inventions (46 pp., a good review of IP protection for software)

21. PATENT LITIGATION: MIRROR WORLDS V. APPLE, APPLE V. SAMSUNG (Thursday, Nov. 14, 2024) – In October, 2010, a small company called Mirror Worlds won a jury award of $625,000,000 against Apple Computer for patent infringement (later vacated).  Mirror Worlds claimed that its patents were infringed by Apple's iPhone user interface. In August, 2012, Apple won over $1 billion against Samsung for infringement of its patents on the iPhone user interface.  We will study these cases in detail, including various decisions made by the courts and the juries.

Reading: Complaint in Mirror Worlds v. Apple (7 pp.)
Freeman et al. U.S. Patent 6,725,427 (17 pp, the Mirror Worlds patent)
Jury Verdict Form in Mirror Worlds v. Apple (2 pp.)
Markman Opinion in Apple v. Samsung (9 pp.)
Samsung's Proposed Voir Dire Questions (3 pp.)
Jury Verdict Form in Apple v. Samsung (20 pp.)

Optional Reading: Markman Opinion in Mirror Worlds v. Apple (40 pp., a thorough claim construction opinion)
Mirror Worlds Bill of Costs (2 pp.)
Ording U.S. Patent 7,469,381 (59 pp., one of the patents in Apple v. Samsung)
Ording et al. U.S. Patent 7,864,163 (49 pp., one of the patents in Apple v. Samsung)
Platzer et al. U.S. Patent 7.844,915 (52 pp., one of the patents in Apple v. Samsung)

Topic 6 - GOVERNMENT REGULATION

22. AI AND ROBOTICS LAW, AI AGENTS (Tuesday, Nov. 19, 2024) – How is society to deal with intelligent systems that behave in ways not anticipated by their creators, but which can injure people? What is a robot legally? What is artificial intelligence legally? How is society to deal with intelligent systems that can create other intelligent systems? Can such systems be legally regulated and controlled? We will look at current attempts to assign liability in such instances, including in robotics, autonomous vehicles and unmanned aircraft system (UAS: drones).

Reading: Saipan et al., Are Robots Human? (8 pp.)
Scherer, Regulating Artifical Intelligence Systems (48 pp.)
Gless et al., If Robots Cause Harm, Who is to Blame? (23 pp.)
Forman, Artificial Intelligence, Machine Learning, and Bias: Prospects, Pitfalls, and Penalties (2022) (37 pp.)
EU Artificial Intelligence Act Summary, (6 pp., summary of the EU AI Act)

Optional Reading: Machines Without Principals: Liability Rules and Artifical Intelligence (34 pp.)
Calo, Robots in American Law (45 pp.)
Balkin, The Path of Robotics Law (17 pp.)
Lunders et al., Autonomous vehicles: The legal landscape in the US (26 pp.)
Petit, Law and Regulation of Artifical Intelligence and Robots (31 pp.)
Joh, Policing Police Robots (28 pp.)
Vacek, The Next Frontier in Drone Law (30 pp.)
Simon, The Intersection of Drones and Insurance (53 pp.)
The EU AI Act, (144 pp., skim if interested)

23. GENERATIVE AI (Thursday, Nov. 21, 2024) – Generative AI has changed the world, including the legal world. The reality that computer program can create in ways previously thought only possible by humans has shaken the underpinning of the law in mutliple domains, including, patent, copyright, evidence (deepfakes), negligence, defamation, data privacy and surveillance, and has prompted efforts to regulate the new technology.

Reading: Connecticut AI Act, Public Act 12-16, (10 pp.)
Thaler v. Vidal (Fed. Cir. 2022), (11 pp., AIs cannot be inventors)
Thaler v. Perlmutter (D.D.C., Aug. 18, 2023), (15 pp., AIs cannot be authors)

Optional Reading:Grimm et al, Artificial Intelligence as Evidence, (100 pp., skim if interested in this topic)