8. DOMAIN NAMES (Thursday, Sept.20, 2012) – Intellectual property overview.  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?  (I think you 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 (4^th 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)

9. TRADE SECRETS (Tuesday, Sept. 25, 2012) – 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? 

10. CONFIDENTIALITY AGREEMENTS (Thursday, Sept. 27, 2012) – 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)

11. COPYRIGHT (Tuesday, Oct. 2, 2012) – 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 trend toward infringement.

Reading: Feist Publications v. Rural Tel. Service Co., 499 U.S. 340 (1991)
Morrissey v. Procter & Gamble, 379 F.2d 675 (1st Cir. 1967)
New York Times Co. v. Tasini, 533 U.S. 483 (2001)    Dissenting opinion.

Optional Reading: Copyright and New Technologies
Let's Swap Copyright for Code, by Christina Reger

12. FAIR USE (Thursday, Oct. 4, 2012) – 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)

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)

13. FILE SHARING (Tuesday, Oct. 9, 2012) – "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 recent RealDVD cases, jailbreaking and music industry enforcement. 

Reading: 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)
MGM v. Grokster, 545 U.S. 913 (2005)
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
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)

14. COPYRIGHT IN COMPUTER PROGRAMS (Thursday, Oct. 11, 2012) – 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)
Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir. 1971)
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

TUESDAY, OCT. 16, 2012.  READING DAY -- NO CLASS

15. THE PATENT PROCESS (Thursday, Oct. 18, 2012) – 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
Legal FAQ: Introduction to Patent Law, Reasoner & Morrow
Patent Litigation for High Technology and Life Sciences Companies, Fenwick & West
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)

16. SOFTWARE PATENTS (Tuesday, Oct. 23, 2012) – 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

17. BUSINESS METHOD PATENTS (Thursday, Oct. 25, 2012) – 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 U.S. Supreme Court decision in Bilski v. Kappos 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.  However, the Patent Office has issued numerous patents on ecommerce business methods, some of which we will examine closely.  

Reading: Bilski v. Kappos (Sup. Ct. 2010)
Internet and E-Commerce Patents, Wright
Business Method Patents, Innovation, and Policy, Hall
Boes U.S. Patent 5,193,056
Hartman et al. U.S. Patent 5,960,411 (Amazon one-click)
Johnson U.S. Patent 6,941,281

Optional Reading: Introduction to Patent Searching, Baillie
Cybersource v. Retail Decisions (CAFC, August 16, 2011)
Ultramercial v. Hulu (CAFC, September 15, 2011)
Patent Reform Act of 2011

18. WHAT'S OBVIOUS AND HOW DO YOU PROVE IT? (Tuesday, Oct. 30, 2012) – In 2007, in the case of KSR v. Teleflex, the U.S. Supreme Court laid down the standards that must be met to prove that an invention would have been obvious to those skilled in the art at the time it was made and therefore is unpatentable.  Such an analysis requires great care because (1) even though "obvious," the invention was novel when made; (2) the jury must be made to understand the mindset of a hypothetical non-existent being called "a person having ordinary skill in the art," who is presumed to have only ordinary skills but is also presumed to be familiar with everything invented in his field up to that time, and clearly such a person cannot exist; and (3) the analysis must wind the clock back to the moment just before the invention was made, which might be as many as 20 years earlier than the date of trial.

Reading: To be supplied.

Optional Reading: To be supplied.

19. SOFTWARE LICENSES (Thursday, Nov. 1, 2012) – 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 (7^th 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: Fundamentals of Software Licensing, Classen
Taking the Case: Is the GPL Enforceable?, Wacha

20. ELECTRONIC TRANSACTIONS (Tuesday, Nov. 6, 2012) – 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

21. INTERNET TAXES (Thursday, Nov. 8, 2012) – 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.  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)

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)

22. TECHNOLOGICAL ANTITRUST (Tuesday, Nov. 13, 2012) – 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 has recently 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.

Reading: 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 5 - PERSONAL INTRUSIONS

23. DATA PRIVACY (Thursday, Nov. 15, 2012) – 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: Pisciotta v. Old National Bancorp, 49 F.3d 629, (7th Cir. Aug. 23, 2007)
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)
Tiberino v. Spokane County, P.3d 1104, 1108 (Wash. Ct. App. 2000)

Optional Reading: 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., 6^th App. Dist. (May 26, 2006)

24. MONITORING (Thursday, Nov. 20, 2012) – Sensors and surveillance cameras are everywhere.  Websites and cellphones are hacked with regularity.  Cellphones in particular provide a goldmine of information, particularly location data.  Both law enforcement organizations and private companies are collecting data surreptitiously at an unprecedented rate.  When is it legal to monitor someone's activity and when and how is it legal to use the results?

Reading: To be supplied.

Optional Reading: To be supplied.

NO CLASS ON THANKSGIVING, NOVEMBER 22

25. DEFAMATION AND FREE SPEECH (Tuesday, Nov. 27, 2012) – 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: To be supplied.

Optional Reading: To be supplied.

Topic 6 - COMPUTER CRIME

26. COMPUTER CRIME (Thursday, Nov. 29, 2012) – Computers have provided unparalleled tools for the commission of crime and offer equally unparalleled methods of avoiding detection.  Encryption and steganography 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. (1^st Dist., May 21, 2007)
People v. World Interactive Gaming (Sup. Ct. N.Y.Co., July 24, 1999)
In re Reynoso, 477 F.3d 1117 (9^th Cir. 2007)

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

27. COMPUTER CRIME (Tuesday, Dec. 4, 2012) – 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)

28. COMPUTER CRIME (Thursday, Dec. 6, 2012) – Electronic communications privacy, eavesdropping, fraud, identity theft, pfishing, spam, export control on computer technology.

Reading: Electronic Communications Privacy Act, 18 U.S.C. §2510
Stored Communications Act, 18 U.S.C. §2701
U.S. v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997)

Optional Reading: Council of Europe Convention on Cybercrime
California Penal Code §646.9  Cyberstalking
California Penal Code §653m (1999) “No Threatening Email Act”
CAN-SPAM Act, 15 U.S.C. §7701
Identity Theft Act, 18 U.S.C. §1028