Law of Computer Technology

 (08-732, 08-632, 08-532)

OFFICIAL COURSE WEB PAGE

Tuesdays and Thursdays  9:00-10:20 a.m., A51 Baker Hall (Giant Eagle Auditorium)

 

Course Overview

This course is both a survey of computer law and an examination of how courts evaluate technological evidence in their decision-making.  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, how lawsuits are conducted, what happens in appeals, 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. Business Transactions: software licenses, clickwrap contracts, electronic transactions.  4. Personal Intrusions: social media, libel and defamation, data privacy, position monitoring. 5. Intellectual Property: domain names. Trade secrets and confidentiality agreements.  Copyright: fair use, file-sharing..  Patents: what is patentable, how patents are obtained, how obviousness is determined, software patents, Internet patents, business method patents.  6. Government Regulation: taxing the Internet, antitrust law.   7. Computer Crime: crimes made possible by computers, crimes involving computers, crimes against computers.

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.

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.

08-732 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.

08-532 is a 9-unit, full-semester course intended for undergraduates and graduate students outside of ISR.

08-632 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 08-532 or 08-732.  Almost all students who register for 08-632 eventually switch into 08-532 or 08-732.  However, except for eBusiness Technology students, who must take 08-732, any student may register for any version of the course.

Everyone in all three courses will take a final examination.  The final exam counts for 50% of the grade.  Class participation counts for 10%.  Homework counts for 40%.  There are 3 homeworks in 08-732, 2 in 08-532 and 1 in 08-632.

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 is currently Director of the MSIT in eBusiness Technology in the Institute for Software Research at Carnegie Mellon.  Dr. Shamos is a frequent expert witness in computer copyright, patent and electronic voting cases.

Alternate Lecturer

Jim Graves, M.S., J.D,, is an attorney admitted to practice in Minnesota and Pennsylvania.  He has a B.S. in Mathematics and Computer Science from CMU and an M.S. in Information Networking from CMU.   His law degree is from William Mitchell College of Law in St. Paul Minnesota.  He has written scholarly publications on copyright law and is currently a Ph.D. candidate in Engineering and Public Policy at CMU.  If Dr. Shamos cannot be present, Mr. Graves will lecture.

No textbook

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.

Administrative Information

The course meets twice a week on Tuesdays and Thursday 9:00 - 10:20 a.m.  Because the instructor is actively involved in ongoing litigation, it may occasionally be necessary to reschedule classes to comply with court orders.  Missed lectures will be rescheduled taking into account the schedules of the students.

Instructor Availability

To ask a question or schedule an appointment outside of class, please send email to shamos@cs.cmu.edu.

Grading Policy

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.

Course Syllabus

Topic 1 - THE LEGAL PROCESS

1.  COURTS
  (Tuesday, Sep. 1, 2015) – 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)
Appellate Review and Stare Decisis (Judge Kelsey)
How to Read a Judicial Opinion: A Guide for New Law Students (Kerr)
How to Read a Legal Citation
Basic Legal Citation: Starting Points
National A-1 Advertising, Inc. v. Network Solutions, Inc. 121 F. Supp. 2d 156 (D. N.H., 2000)

Optional reading:
A Guide to Legal Literacy (California State Bar)
The Judicial System in North Carolina
Teaching Stare Decisis Using Browsewrap Agreements (Sprague)
Understanding the Federal Courts

2.  LAWSUITS  (Thursday, Sep. 3, 2015) –  The progress of a lawsuit from pre-filing through filing, discovery, motions, trial and appeals.  Litigation strategy and alternative dispute resolution: arbitration, mediation and settlement.

Reading: Overview of the Civil Court Process (Indiana)
Federal Rules of Civil Procedure (VERY LONG -- just skim for an overview)
A Practical Guide to Patent Trial Discovery (Jack Griem)
E-Discovery (Thompkins)
Mediation; Alternative Dispute Resolution (ADR) (Alaska Judicial Council)
ADR of Intellectual Property Disputes (McConnaughay)

Optional reading: A Practical Introduction to Electronic Discovery (Judge Nuffer)
Introduction to Discovery (Stratton Press)

3.  REGULATORY LAW  (Tuesday, Sep. 8, 2015) – 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. 

Reading: A Guide to the Rulemaking Process (Office of the Federal Register)
The Reg Map
15 U.S.C. 45 (Powers of the Federal Trade Commission)
Mail or Telephone Order Merchandise Rule Notice of Comment Period
Final Mail or Telephone Order Merchandise Rule, 16 C.F.R. 435

Optional Reading: Code of Federal Regulations (C.F.R.)  [Just browse, particularly Titles 16, 37 and 47.]
A Business Guide to the Federal Trade Commission's Mail or Telephone Order Merchandise Rule
Children's Online Privacy Compliance Guidelines
Children's Online Privacy Protection Act
(COPPA) [particularly Section 6502]  (Backup copy in .pdf)
COPPA Rulemaking and Rule Reviews (Read the 2012 Final Amended COPPA Rule)

4.  INTERPRETING STATUTES  (Thursday, Sep. 10, 2015) – 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.

Reading: Statutory Construction Act, 19 Pa. C.S. §1921
McBoyle v. U.S., 283 U.S. 25 (1931) (Supreme Court), McBoyle v. U.S., 43 F.2d 273 (10th Cir. 1930)
People v. Bugaiski, 224 Mich. App. 241 (1997)  This is a critical case for understanding the important principle of ejusdem generis.
Joffe v. Google (9th Cir. Sept. 10, 2013)
Yates v. United States (Sp. Ct., Feb 25, 2015) The Supreme Court on ejusdem generis
AT&T v. City of Portland, 216 F.3d 871 (9th Cir. 2000)

Optional reading: Regina v. Ojibway (a classic of legal writing)
New Hampshire v. MacMillan, 152 N.H. 67 (2005)
Jarecki v. Searle, 367 U.S. 301 (1961)
N.Y. Times v. Tasini, 533 U.S. 483 (2001) (summary)
U.S. v. Lacy, 119 F.3d 742 (9th Cir. 1997)
Microsoft v. Comm’r of Internal Revenue, 311 F.3d 1178 (9th Cir. 2002)
Retail Ventures v. National Union Fire Insurance Company of Pittsburgh (6th Cir. Aug. 23, 2012)
Rulings of the (VA) Tax Commissioner 03-2

5.  JURISDICTION (Tuesday, Sep. 15, 2015) – 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. 

Reading: International Shoe Co. v. Washington, 326 U.S. 310 (1945) (fundamental U.S. case on personal jurisdiction)
Daimler AG v. Bauman (Sp. Ct. 2014)
Response Reward Systems v. Meijer, Inc., 189 F. Supp. 2d 1332 (M.D. Fla. 2002)
Snowney v. Harrah's Entertainment, Inc., 34 Cal. 4th 1054, 112 P.2d 28 (2005)

Optional Reading: Citron: Minimum Contacts in a Borderless World
Geist: Is There a There There?
Long-Arm Statutes (Vedder Price) (LONG -- FOR REFERENCE ONLY)

6.  INTERNET JURISDICTION (Thursday, Sep. 17, 2015) – 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? 

Reading: Zippo Manufacturing v. Zippo Dot Com Inc., 952 F.Supp. 1119 (W.D. Pa. 1997)
Best Odds Corp. v. iBus Media Limited (D. Nev. 2014)
Burdick v. Superior Court of Orange County (Cal. App., Feb. 14, 2015)
Intercon, Inc. v. Bell Atlantic Internet Solutions, Inc.,
205 F.3d 1244 (10th Cir., March 9, 2000)

Williams v. America OnLine, Inc., (2001 Mass. Super. No. 00-0962)
Wilson v. RIU Hotels & Resorts (E.D. Pa. 2011)
Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 433 F.3d 1199, 1246 (9th Cir. 2006), overruling the district court decision.

Optional Reading: NOTE: there is a lot of content here.  Pick one or two references if you want depth on this topic.
Boone: Bullseye!  Why a “Targeting” Approach to Jurisdiction in the E-Commerce Context Makes Sense Internationally
Butler v. Beer Across America, 83 F.Supp. 2d 1261 (N.D. Ala. 2000)
Gladstone: Determining Jurisdiction in Cyberspace
Gray: Minimum Contacts in Cyberspace
Moore: Cyberjurisdiction (VERY GOOD)
Spencer: Jurisdiction and the Internet
Twentieth Century Fox, Inc.. v. ICraveTV, 53 U.S.P.Q. 2d 1831 (W.D. Pa. 2000)  Read Complaint.  Read Injunction.
Wimmer & Pogoriler: International Jurisdiction and the Internet

Topic 2 - EVIDENCE

7.  COMPUTER EVIDENCE (Tuesday, Sep. 22, 2015) – 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. 

Reading: Federal Rules of Evidence (Articles I, IV, VIII, IX, X)
Kerr, Computer Records and the Federal Rules of Evidence
Legal Status of Optical Disk and Electronic Imaging Systems
Rostoker & Rines, Computer Jurisprudence
Sutherlin v. State of Indiana, 784 N.E.2d 971 (Ind. Ct. App. 2003)
What is hearsay? (short video clip)
What is not hearsay? (short video clip)

Optional Reading: Chung & Byer, The Electronic Paper Trail
State of Tennessee v, Drake (Tenn. Crim. App. June 6, 2005)
State of Tennessee v. Farner, 66 S.W.3d 188 (Tenn. 2001)
Wolfson, Electronic Fingerprints, Doing Away with the Conception of Computer-Generated Records as Hearsay

8.  SCIENTIFIC EVIDENCE (Thursday, Sep. 24, 2015) – 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?

Reading: Daubert v. Merrell Dow, 509 U.S. 579 (1993)
Frye v. United States, 293 F. 1013 (App. D.C. 1923)
Clausen v. M/V New Carissa, 339 F.3d 1049, 1056 (9th Cir. 2003)
Mike’s Train House v. Lionel, 472 F.3d 398 (6th Cir. 2006)
Affidavit of Benjamin Edelman
U.S. v. Frabizio (D. Mass.)

Optional Reading: Commonwealth v. Serge, 896 A.2d 1170 (Pa. 2006), cert. den. (2006)
Giannelli, Expert Qualifications & Testimony
Kolar, Scientific and Other Expert Testimony
People v. LeGrand, 196 Misc 2d 179 (Sup Ct, NY County 2002)
Selbak, Digital Litigation
Williamson & LaVecchia, Admissibility of Expert Testimony

Topic 3 - BUSINESS TRANSACTIONS

9. SOFTWARE LICENSES (Tuesday, Sep. 29, 2015) – 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? 

Reading: ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)
Specht v. Netscape Communications Corp.,
306 F.3d 17 (2nd Cir.2002)
Comb v. PayPal, 218 F. Supp. 2d 1165 (N.D. Cal. 2002)
Affinity Internet v. Consolidated Credit, 920 So. 2d 1286 (Fla. Dist. Ct. App. 2006)
The Enforceability of Shrinkwrap License Agreements On-Line and Off-Line, Hayes
The GNU Public License

Optional Reading: Berkson et al. v. Gogo LLC et al. (S.D.N.Y. April 9, 2015) (83 pages but a recent very thorough analysis of mutiple types of software licenses)
Fundamentals of Software Licensing, Classen
Taking the Case: Is the GPL Enforceable?, Wacha

10. ELECTRONIC TRANSACTIONS (Thursday, Oct. 1, 2015) – 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.

Reading: Uniform Electronic Transactions Act
E-Sign Act
Overview of the Uniform Computer Information Transactions Act (UCITA)
Electronic Signatures and Records Under ESIGN, UETA and SPeRS

Optional Reading: Legal Issues in Open Source and Free Software Distribution, Nimmer
Finding Common Ground in the World of Electronic Contracts, Dickens

Topic 4 - PERSONAL INTRUSIONS

11. DATA PRIVACY (Tuesday, Oct. 6, 2015) – 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.

Reading: Revenge porn news article.  See also civil case: Jacobs v. Seay (Cir. Ct. Miami-Dade Cty. Fla., complaint filed April 18, 2013).  See Ryan Seay's response page..
In re Subpoena Duces Tecum To America Online. Inc. Va. Cir. Ct., Fairfax Cty., Misc. Law No. 40570, (Feb. 7, 2000)
America Online, Inc. v. Anonymous Publicly Traded Co.,
542 S.E.2d 377 (Va. 2001)
McLaren v. Microsoft, No. 05-97-00824 (Tex. Ct. App. May 28, 1999)
Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002)

Optional Reading:
Data Breach Charts (Baker Hostetler).  Summary of data breach notification laws across the U.S.
Reno v. Condon, 528 U.S. 141 (2000)

In re Verizon Internet Services Subpoena, 240 F.Supp.2d 24 (D.D.C. 2003)
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)
Pisciotta v. Old National Bancorp, 49 F.3d 629, (7th Cir. Aug. 23, 2007)
Tiberino v. Spokane County, P.3d 1104, 1108 (Wash. Ct. App. 2000)

12. DEFAMATION AND FREE SPEECH (Thursday, Oct. 8,  2015) – With websites, Twitter, Facebook and other social media, everyone is now a publisher and, for that matter, an instant publisher.  There has always been a tension between freedom of speech and one's right not to be defamed through publication of false information.  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?

Reading: Bosky, Defamation in the Internet Age
Defamation in the Internet Age (Same title, different article!)
Communications Decency Act
Jones v. Dirty World (E.D. Kentucky, Jan. 21, 2011).  Appeal: Dirty World LLC v Jones, 755 F.3d 398 (6th Cir. 2014)

Optional Reading: Aggergaard, Three Defenses to Consider
Vogel v. Felice (26 Cal. Rptr. 3d 350 (2005)
Fair Housing Council v. Roommate.com, LLC, 521 F.3d 1157 (9th Cir. 2008)  (long but well-written)

Topic 5 - INTELLECTUAL PROPERTY

13. TRADE SECRETS (Tuesday, Oct. 13, 2015) – 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? 

Reading: Uniform Trade Secrets Act (short)
Paramanandam v. Herrmann, 827 N.E. 2d 1173 (Ind. App. 2005)
Syncsort v. IRI (D. N.J. 2011)
Booloon v. Google (Cal. App., May 25, 2012)
ConnectU v. Facebook complaint
Economic Espionage Act, 18 U.S.C. §1832

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

14. CONFIDENTIALITY AGREEMENTS (Thursday, Oct.15, 2015) – 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
Mark Hurd's Separation Agreement from Hewlett-Packard
California Reject Inevitable Disclosure Doctrine
Schlage Lock Co. v. Whyte (Cal. App. 4th Dist., Sept. 12, 2002)

Optional Reading: NEC nondisclosure agreement
Earthweb, Inc. v. Schlack, 71 F.Supp.2d 299 (S.D.N.Y. 1999), aff'd in part (2d Cir. 2000)
Protecting Trade Secrets After Mass Dissemination on the Internet
Liebert Corp. v. Mazur, 357 Ill. App. 3d 265, 827 N.E. 2d 900 (2005)
Johnson v. Benjamin Moore, 347 N.J. Super. 71; 788 A.2d 906 (AD 2002)

LECTURE 14 IS THE LAST LECTURE IN 08-632

READING PERIOD OCTOBER 20-22.  NO CLASSES

15. COPYRIGHT (Tuesday, Oct. 27, 2015) – 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)
Morrissey v. Procter & Gamble, 379 F.2d 675 (1st Cir. 1967)

Optional Reading: Copyright and New Technologies
Let's Swap Copyright for Code, by Christina Reger
New York Times Co. v. Tasini, 533 U.S. 483 (2001)    Dissenting opinion.

16. FAIR USE (Thursday, Oct. 29, 2015) – 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)
Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984)
LiveNation Motor Sports, Inc. v. Davis, 81 USPQ 2d 1267 (N.D. Tex. 2006)
Sony v. Connectix, 203 F.3d 596 (9th Cir. 2000)
Use My Photo (NY Times, Oct. 1, 2007)
Author's Guild v. Google (2d Cir., Oct. 16, 2015) VERY RECENT IMPORTANT CASE ON FAIR USE

Optional Reading: CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004)
Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007)
Parker v. Google (3d Cir. 2007)

17. FILE SHARING (Tuesday, Nov. 3, 2015) – "File sharing" is one of the great misnomers in technology law.  "Sharing" implies allowing others to have or use what you own.  "File sharing" means 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. 

Reading: American Broadcasting Cos. v. Aereo, Inc., 134 S.Ct. 896 (June 25, 2014)  This is the latest word on the subject.
A&M Records v. Napster, 114 F.Supp.2d 896 (N.D. Cal. 2000), aff’d 239 F.3d 1004 (9th Cir. 2001), aff’d after remand, 284 F.3d 1091 (9th Cir. 2002)
From Sony to Grokster
Digital Millennium Copyright Act (U.S. Copyright Office Summary)
Universal City Studios et al. v. Reimerdes, 111 F.Supp.2d 194 (S.D.N.Y. 2000), aff’d 273 F.3d 429 (2nd Cir. 2001)
UMG Recordings, Inc. v. mp3.com, 92 F. Supp. 2d 349 (S.D.N.Y. 2000)

Optional Reading: Digital Rights Management
MGM v. Grokster, 545 U.S. 913 (2005)
Digital Rights Management II
Online Intellectual Property Cases Test Copyright, Free Speech Tension
Online Policy Group v. Diebold, 337 F. Supp. 2d 1195 (N.D.Cal. September 30, 2004)

18. COPYRIGHT IN COMPUTER PROGRAMS (Thursday, Nov. 5, 2015) – 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.

Reading: Copyright Infringement of Computer Software
Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992)
Lexmark Int’l, Inc.. v. Static Control Components, 387 F.3d 522 (6th Cir. 2004)
Lotus v. Borland, 49 F.3d 807 (1st Cir. 1995)

Optional Reading: The "Abstraction, Filtration, Comparison Test" (Ladas & Perry LLP)
Abstraction and filtration of GNU Sort

19. THE PATENT PROCESS (Tuesday, Nov. 10, 2015) – 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
CRITICAL TECHNOLOGY ARTICLE FROM THE NY TIMES OF OCTOBER 8, 2012: The Patent, Used as a Sword, by Duhigg & Lohr
Legal FAQ: Introduction to Patent Law, Reasoner & Morrow
Patent Litigation for High Technology and Life Sciences Companies, Fenwick & West
Hartman et al. U.S. Patent 5,960,411 (Amazon 1-click)
Loebner U.S. Patent 6,019,393
Yang et al. U.S. Patent 6,536,068

Optional Reading: The Admissibility and Utility of Expert Legal Testimony in Patent Litigation, Pollack
Patent Law Principles and Strategies, Auerbach
What Does Forum Shopping in the Eastern District of Texas Mean for Patent Reform?, Taylor
KSR International v. Telelex, 127 S. Ct. 1727, (2007) (major Supreme Court case on obviousness)

20. SOFTWARE PATENTS (Thursday, Nov, 12, 2015) – 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.

Reading: IP v. Red Hat Complaint
Software Patent Litigation, McDonald et al.
Levergood et al. U.S. Patent 5,708,780
Henderson et al. U.S. Patent 5,072,412

Optional Reading: Patent Scope and Innovation in the Software Industry, Cohn & Lemley
An Empirical Look at Software Patents, Bessen
Public Hearing on Use of the Patent System to Protect Software-Related Inventions
Emerging Claim Formats for Software Inventions 

21. BUSINESS METHOD PATENTS (Tuesday, Nov. 17, 2015) – Until 1992, methods of doing business (e.g. conducting garage sales, offering discount coupons) were not considered patentable, regardless of novelty.  In 1998, the State Street Bank case made it clear that business methods can also be patented and are subject to the same requirements as other types of inventions.  The 2014 U.S. Supreme Court decision in Alice v. CLS Bank has significantly altered the landscape for software and business method patents. The rise of electronic commerce has spawned new methods of conducting business, some of which appear to be obvious and unpatentable.  The America Invents Act (AIA) provided an efficient (and now commonly used) method for removing software and business method patents from issuance.  We will examine when a software invention is patentable and when it is not.

Reading: Alice Corporation Pty. Ltd. v. CLS Bank International et al. (Sup. Ct. 2014)
Internet and E-Commerce Patents, Wright
Business Method Patents, Innovation, and Policy, Hall
Boes U.S. Patent 5,193,056
Johnson U.S. Patent 6,941,281

Optional Reading: Introduction to Patent Searching, Baillie
Cybersource v. Retail Decisions (CAFC, August 16, 2011)
SAP America v, Versata (PTAB, June 11, 2013)
Ultramercial v. Hulu (CAFC, Nov. 14, 2014)
DDR Holdings v. Hotels.com (CAFC, Dec. 5, 2014)
Patent Reform Act of 2011

22. ANATOMY OF PATENT CASES: MIRROR WORLDS V. APPLE, APPLE V. SAMSUNG (Thursday, Nov. 19, 2015) – 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
Freeman et al. U.S. Patent 6,725,427
Jury Verdict Form in Mirror Worlds v. Apple
Markman Opinion in Apple v. Samsung
Samsung's Proposed Voir Dire Questions
Jury Verdict Form in Apple v. Samsung

Optional Reading: Docket in Mirror Worlds v. Apple
Markman Opinion in Mirror Worlds v. Apple
Mirror Worlds Bill of Costs
Ording U.S. Patent 7,469,381
Ording et al. U.S. Patent 7,864,163
Platzer et al. U.S. Patent 7.844,915

23. DOMAIN NAMES (Tuesday, Nov, 24, 2015) – 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)
Full Sail, Inc. v. Spevak (WIPO Case D2003-0502)
Greenstone, Overview of Internet Domain Law
ICANN Uniform Dispute Resolution Policy
Sharton, Domain Name Disputes: To Sue or Not to Sue
Visa International Service Association v. JSL Corporation (D. Nev. Dec. 27, 2007) (regarding the use of "e" as a prefix)
Zyliss AG v. Gourmet Kitchen (National Arbitration Forum Claim FA0306000162069)

Optional Reading: Avery Dennison v. Sumpton, 189 F.3rd 868, 880-81 (9th Cir. 1999)
Cable News Network v. cnnews.com 56 Fed. Appx. 599 (4th Cir. 2003)
Geico v. Google, 330 F.Supp. 2d 700 (E.D. Va. 2004).  ALSO: Geico v. Google, 77 U.S.P.Q.2d (BNA) 1841 (E.D. Va. Aug. 8, 2005)
Memorandum of Understanding between U.S. Department of Commerce and ICANN
Moseley v. V-Secret Catalogue, Inc., 537 U.S. 418 (2002) (Supreme Court test for trademark dilution)
Panavision v. Toeppen, 141 F.3d 1316 (9th Cir. 1998)
PETA v. Doughney, 263 F.3d 359 (4th Cir. 2001)
Playboy Enterprises v. Welles, 279 F.3d 796 (9th Cir. 2002)
UDRP Proceedings Indexed by Name
Washington Post v. Total News, (Case No. 97 Civ. 1190 (PKL), S.D.N.Y., filed Feb. 20, 1997)

Nov. 26, 2015.  THANKSGIVING -- NO CLASS

Topic 6 - GOVERNMENT REGULATION

24. INTERNET TAXES (Tuesday, Dec. 1, 2015) – 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.  Congress has stepped 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. 

Reading: National Bellas Hess v. Dep’t of Revenue of Illinois, 386 U.S. 753 (1967)
Quill Corp. v. North Dakota Tax Comm’r, 504 U.S. 298 (1992)
Internet Tax Freedom Act
St. Tammany Parish Tax Collector v. Barnesandnoble.com, et al., Civ. Act. No. 05-5695 (E.D. La., March 22, 2007)
Direct Marketing Association v. Brohl (U.S. Supreme Court, March 3, 2015)

Optional Reading: Amazon Pushes Hard to Kill a Tax (NY Times, Sept. 5, 2011)
Making the Internet Tax Freedom Act Permanent Could Lead to a Substantial Revenue Loss for States and Localities, Mazerov (lobbying document)
Virginia Tax Commissioner Ruling 06-103 (2006)

25. TECHNOLOGICAL ANTITRUST (Thursday, Dec. 3, 2015) – 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? 

Reading: Google's Smartphone Patents (NY Times, October 10, 2012)
Sherman Antitrust Act, 15 U.S.C. §1ff (1890)
Clayton Antitrust Act, 15 U.S.C. §12ff (1914)
Microsoft Antitrust Judgment (D.D.C. Nov. 12, 2002)
Ticketmaster v. RMG Technologies (C.D. Cal. Oct. 16, 2007)

Optional Reading: Unilateral Technology Suppression, Chin
Department of Justice Antitrust Division Manual

Topic 7 - COMPUTER CRIME

26. COMPUTER CRIME (Tuesday, Dec. 8, 2015) – 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. 

Reading: Hageseth v. Superior Court of San Mateo County, Cal. App. (1st Dist., May 21, 2007)
People v. World Interactive Gaming (Sup. Ct. N.Y.Co., July 24, 1999)
In re Reynoso, 477 F.3d 1117 (9th Cir. 2007)

Optional Reading: State Criminal Jurisdiction in Cyberspace: Is There a Sheriff on the Electronic Frontier?, Berg

27. COMPUTER CRIME (Tuesday, Dec. 10, 2015) – Computer Fraud and Abuse Act, crimes against computer systems: denial of service attacks, vandalism, cyberterrorism. .

Reading: Computer Fraud and Abuse Act
Indictment of J. John Ancheta under the Computer Fraud and Abuse Act
Pennsylvania Unlawful Use of Computer Statute, 39 Pa.C.S. §3933
AOL v. LCGM, 46 F.Supp. 444 (E.D. Va. 1998)

Optional Reading: First Do No Harm: The Problem of Spyware, Crawford
Computer Crimes Cases Prosecuted by the US Dep’t. of Justice