Law of Computer Technology
(17-562, 17-662, 17-762)
OFFICIAL COURSE WEB PAGE
Tuesdays and Thursdays 9:00-10:20 a.m., Margaret Morrison A14
NOTE: CLASSES TO MAKE UP FOR THE WEEK OF SEPT. 9 WILL BE HELD SEP. 16 AND 18. SEE THE DIFFERENT LOCATION AND TIMES BELOW.
This course is both a survey of computer law and an examination of how courts and administrative agencies make decisions on issues involving computer technology. It is a survey of the most important and controversial issues 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 can a court 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, AI, robotics and drone law. . 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: taxing the Internet, antitrust law, Net neutrality, statups and venture caplital, computer crime.
No legal background is required or assumed. This is not a law school course.
Great effort is expended to keep the syllabus current based on breaking legal events. Therefore, the content and ordering of lectures may vary somewhat as the course progresses.
NOTE: It is possible that the instructor may be obliged to testify at one or more trials during the semester. Either an alternate instructor will lecture or any missed lectures will be rescheduled.
Which Course Should I Take?
All three courses meet in the same room at the same time. They differ only in course length and number of credits awarded.
17-762 is a 12-unit, full-semester course intended for graduate students, particularly those in the MSIT eBusiness Technology program and Societal Computing Ph.D. students.
17-562 is a 9-unit, full-semester course intended for undergraduates and graduate students outside of ISR.
17-662 is a 6-unit minicourse offered in Fall Mini 1, consisting of the first 14 lectures. It is required for students in the Privacy Engineering program. The requirement can also be satisfied with 17-562 or17-762. Almost all students who register for 17-662 eventually switch into 17-562 or 17-762. However, except for MS in Artificial Intelligence and Innovation students, who must take 17-762, any student may register for any version of the course.
Everyone in all three courses will take a take-home final examination. The final exam counts for 50% of the grade. There are no midterm exams. Class participation counts for 10%. Homework counts for 40%. There are 3 homeworks in 17-762, 2 in 17-562 and 1 in 17-662 + 1 mini-homwork in each course.
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 2004-2008. He is now Director of the M.S. in Biotechnology Innovation and Computation and the M.S. in Artificial Intelligence and Innovation. Dr. Shamos is a frequent expert witness in computer copyright, patent and electronic voting cases.
There is no textbook because the materials necessary for this course are very recent and have not yet found their way into textbooks. All of the readings are available on the Internet, and will be posted approximately one month in advance. Readings are to be done BEFORE the associated lecture. PLEASE NOTE: readings for future lectures may change as the course progresses if warranted by significant legal decisions. So read ahead, but not too far ahead.
You may find the course glossary useful in understanding legal terminology and abbreviations.
The course meets twice a week on Tuesdays and Thursday 9:00 - 10:20 a.m. in Margaret Morrison A14.
Students are encouraged to work together on the homework assignments. Past experience has shown that students do better when they work in teams. However, after discussing problems and solutions jointly, each student must prepare their own paper individually, without copying material from other people.
The final exam will be a take-home over a period of 24 hours, date to be determined. It will be open-book, open notes and open Internet. However, unlike with homework, collaboration with others is not permitted during the final exam.
To ask a question or schedule an appointment outside of class, please send email to email@example.com.
Written work will not be re-graded except for manifest error. A "manifest error" is one that is immediately apparent from work itself, such as failure to grade a question or an arithmetic error in computing a score.
Topic 1 - THE LEGAL PROCESS
to the Court System (Barclay, 4 pp.)
Contract Basics (4 pp.)
3. REGULATORY LAW (Tuesday, Sep. 3, 2019) – Far more law is embodied in government regulations imposed by administrative agencies than appears in statutes. This is particularly true in the privacy space. When properly enacted, regulations have the same force of law as if they were enacted by a legislature, and are enforced by the agencies, which can impose fines and penalties for violations. How regulations are made, their legal effect, appeals from agency decisions, interplay between government agencies and the courts.
A Guide to the Rulemaking Process (Office of the Federal Register,
4. INTERPRETING STATUTES (Thursday, Sep. 5, 2019) – 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 that must be remedied later by the legislature. We will look at interpretation of non-technical statutes in light of new technology.
Construction Act, 19 Pa. C.S. §1921 (4 pp.)
Optional reading: Joffe
v. Google (9th Cir. Sept. 10, 2013) (35 pp.)
5. JURISDICTION (Monday, Sep. 16, 2019, 5:00-6:20 NSH 1305) – 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.
International Shoe Co. v. Washington, 326 U.S. 310 (1945) (6 pp., fundamental U.S. case on personal jurisdiction)
Daimler AG v. Bauman (Sp. Ct. 2014)
(46 pp. -- relatively recent Supreme Court case on international
6. INTERNET JURISDICTION (Tuesday, Sep. 17, 2019) – 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?
Manufacturing v. Zippo Dot Com Inc., 952 F.Supp. 1119 (W.D. Pa. 1997)
Reading: NOTE: there is a lot of content here. Pick one or two
references if you want depth on this topic.
Topic 2 - EVIDENCE
7. COMPUTER EVIDENCE (Wednesday, Sep. 18, 2019, 4:30-5:50 NSH 1305) – All trials involving proving facts. (A case in which facts are not disputed does not go to trial. This was explained in Lecture 2.) The rules of evidence define which methods can be used to prove facts at trial. Some of these, such as the hearsay rule, are quite complex. Others, which may appear simple, may have their meaning stretched when computers are involved. For example, suppose you dispute that you clicked "I accept" on a license agreement for an Internet download? How does the company prove you did? This lecture concentrates on the use of computer-based evidence in trials.
Federal Rules of
Evidence (Articles I, IV, VIII, IX, X)
Chung & Byer, The Electronic Paper Trail (21 pp.)
8. SCIENTIFIC EVIDENCE (Thursday, Sep. 19, 2019) – Some trials involve opinions. 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?
v. Merrell Dow, 509 U.S. 579 (1993) (14 pp. -- the principal case
on expert qualifications)
Optional Reading: Commonwealth
v. Serge, 896 A.2d 1170 (Pa. 2006), cert. den.
(2006) (26 pp.)
Topic 3 - EBUSINESS LAW
9. SOFTWARE LICENSES (Tuesday, Sep. 24, 2019) – What can you do with a 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? What about freeware, shareware and open source software? Are shrinkwrap, clickwrap and browsewrap agreements enforceable?
v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (7 pp.)
Optional Reading: Berkson
et al. v. Gogo LLC et al. (S.D.N.Y. April 9, 2015) (83 pages but a very
thorough analysis of
mutiple types of software licenses)
10. ELECTRONIC TRANSACTIONS (Thursday, Sep. 26, 2019) – 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.
Act (14 pp.)
Optional Reading: JBB
Investment Partners v. Fair (Cal. App. 1st Dist., Dec. 5, 2014)
Topic 4 - PERSONAL INTRUSIONS
11. DATA PRIVACY (Tuesday, Oct. 1, 2019) – Privacy is well-covered in other COS 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. We'll look at the recent identity theft red flag rules to see an attempt to cure some of the damaging consequences of privacy intrusions.
re Subpoena Duces Tecum To America Online. Inc. Va. Cir. Ct.,
Fairfax Cty., Misc. Law No. 40570, (Feb. 7, 2000) (11 pp.)
Data Breach Charts (Baker Hostetler). (18 p. summary of data breach notification laws across the U.S.)
Reno v. Condon, 528 U.S. 141 (2000) (10 pp.)
In re Verizon Internet Services Subpoena, 240 F.Supp.2d 24 (D.D.C. 2003) (19 pp.)
O’Grady v. Superior Court of Santa Clara County; Apple Computer, Inc., Real Party in Interest, Ct. App. Calif., 6th App. Dist. (May 26, 2006) (69 pp.)
Pisciotta v. Old National Bancorp, 49 F.3d 629, (7th Cir. Aug. 23, 2007) (21 pp.)
Tiberino v. Spokane County, P.3d 1104, 1108 (Wash. Ct. App. 2000) (11 pp.)
12. AI AND ROBOTICS LAW (Thursday, Oct. 3, 2019) –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).
Saipan et al., Are
Robots Human? (8 pp.)
Without Principals: Liability Rules and Artifical Intelligence (34
Topic 5 - INTELLECTUAL PROPERTY
13. TRADE SECRETS (Tuesday, Oct. 8, 2019) – 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?
Trade Secrets Act (3 pp.)
v. IRI (D. N.J. 2011) (36 pp.)
14. CONFIDENTIALITY AGREEMENTS (Thursday, Oct.10, 2019) – 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.
HP Complaint Against Mark Hurd, filed Sept. 10, 2010 (51 pp. --
only the first 18 are significant)
NEC nondisclosure agreement (5 pp.)
LECTURE 14 IS THE LAST LECTURE IN 17-662
15. COPYRIGHT (Tuesday, Oct. 15, 2019) – 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.
Feist Publications v. Rural Tel. Service Co., 499 U.S. 340 (1991)
(13 pp. -- critical case: the demise of "sweat of the brow" copyright)
Copyright and New Technologies
16. FAIR USE (Thursday, Oct. 17, 2019) – 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.
Geophysical Union v. Texaco, 60 F3d 195 (2d Cir. 1994) (29 pp. Not
all "research" use is "fair use")
CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004)
17. COPYRIGHT IN COMPUTER PROGRAMS (Tuesday, Oct.22, 2019) – 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.
Infringement of Computer Software (3 pp.)
18. DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) (Thursday, Oct. 24, 2019) – "File sharing" is one of the great misnomers in technology law. It is a euphemism for providing others with material you do not own, which is illegal. File sharing often involves breaking copy protection or encryption on files to allow them to be copied, a problem addressed by the Digital Millennium Copyright Act (17. U.S.C. §1201ff), one of the most controversial of technological statutes. We will look at Napster and Grokster in relationship to the goals of copyright, the RealDVD cases, jailbreaking and music industry enforcement.
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)
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.)
19. THE PATENT PROCESS (Tuesday, Oct. 29, 2019) – 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?
Overview of the US Patent System (6 pp.)
Optional Reading: The
Admissibility and Utility of Expert Legal Testimony in Patent Litigation,
20. SOFTWARE PATENTS (Thursday, Oct. 31, 2019) – A huge number of software patents are now being issues, 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.
Corporation Pty. Ltd. v. CLS Bank International et al. (Sup. Ct.
2014) (21 pp.)
Reading for those interested in software patents: Patent
Scope and Innovation in the Software Industry, (58 pp, Cohn & Lemley)
21. ANATOMY OF PATENT CASES: MIRROR WORLDS V. APPLE, APPLE V. SAMSUNG (Tuesday, Nov. 5, 2019) – 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.
Complaint in Mirror Worlds v. Apple (7 pp.)
22. DOMAIN NAMES (Thursday, Nov. 7, 2019) – 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..
Full Sail, Inc. v. Spevak (Case 6:03-cv-887-Orl-31JGG, M.D. Fla., 2003)
(15 pp., the District Court case)
Avery Dennison v. Sumpton, 189 F.3rd 868, 880-81 (9th Cir. 1999) (6
Topic 6 - GOVERNMENT REGULATION
INTERNET TAXES (Tuesday, Nov.
12, 2019) – Generally, when you buy something that is shipped from
another state into Pennsylvania you don't pay sales tax to either
Pennsylvania or the state of origin. (We'll look at exactly why
this is so.) Most Internet sales involve an interstate shipment,
so the expansion of electronic commerce is depriving states of an
increasing share of tax revenue. To counteract this trend,
various states are devising new taxes on Internet use, which threatens
the development of electronic business. This topic was the
subject of a major Supreme Court decision in 2018. Congress may also
step into the fray because of its power to regulate interstate commerce
and has proposed a new statute to deal with the problem. We will
look at the current Internet tax situation in the United States.
This topic is more interesting than you might think.
Amazon Pushes Hard to Kill a Tax (3 pp., NY Times, Sept. 5, 2011)
24. TECHNOLOGICAL ANTITRUST (Thursday, Nov. 14, 2019) – Computer technology has engendered previously unheard-of methods of stifling competition, for example, by disabling a computer's ability to install or use a competitor's software. Microsoft has been a pioneer and primary exponent of such techniques. For example, Google alleged that Microsoft Vista deliberately slows down Google desktop search to favor Microsoft Desktop Search. Naturally such behavior has antitrust implications, so we will look at applicable antitrust law and cases involving purely automated actions, such as disabling competitors' software. Apple was recently found to have engaged in price-fixing in sales of eBooks. But what did it do exactly and why was it illegal?
Google's Smartphone Patents (3 pp., NY Times, October 10, 2012)
Optional Reading: Ticketmaster
v. RMG Technologies (C.D. Cal. Oct. 16, 2007) (32 pp.)
25. NET NEUTRALITY AND GOVERNMENT REGULATION OF THE INTERNET (Tuesday, Nov. 19, 2019) – "Net neutrality" is the principle that service providers and carriers shoul treat all Internet packets equall, regardless of source, destination, size or content. It conflicts with free market forces and also has antitrust implications. We will look at how governments, both U.S. and others, can force carriers to be net neutral.
& Melugin, Net
Neutrality Primer (9 pp.)
Notice of Proposed Rulemaking (Apr. 27, 2017)
STARTUPS AND VENTURE CAPITAL (Thursday,
Nov. 21, 2019) – Money is a critical resource for a startup
company. We will look at how money is raised, the various stages of
investment, securities law, and corporate formation.
Optional Reading: Legal Resource Guide for Startup Entrepreneurs (60 pp.)
NOVEMBER 26 AND 28 ARE THANKSGIVING WEEK -- NO LECTURES.
27. COMPUTER CRIME (Tuesday, Dec. 3, 2019) – Computers have provided unparalleled tools for the commission of crime and offer equally unparalleled methods of avoiding detection. Because so many businesses are completely dependent on computers, servers have become a target for extortion attempts, competitive attacks, theft of trade secrets and hacking with a variety of objectives, some as simple as publicizing causes. The U.S. has been slow to cope with advancements in computer crime because of a fundamental principle of criminal law: crime statutes are strictly construed. Simply stated, this means that an act is not a crime unless a statute makes it explicitly criminal. There are no "common law" computer crimes. With legislatures slow to draft laws to keep pace with criminals, there is a continuing gap between what is legal and what should be illegal. The first lecture will deal with computers as instruments of crime. Computer Fraud and Abuse Act, crimes against computer systems: denial of service attacks, vandalism, cyberterrorism.
v. World Interactive Gaming (Sup. Ct. N.Y.Co., July 24, 1999) (8 pp.)
Optional Reading: Hageseth
v. Superior Court of San Mateo County, Cal. App. (1st Dist., May 21,
2007) (37 pp., unusual case in which a court is sued)
28. ADDITIONAL TOPIC (Thursday, Dec. 5, 2019) – It is possible that one or more of the course lectures might have to be postponed, so this is a free slot to which to postpone one of them. If nothing is postponed, then we will use this lecture for additional material on computer crime.