Law of Computer Technology

 (17-562, 17-662, 17-762)

FALL 2019


Tuesdays and Thursdays  9:00-10:20 a.m., Margaret Morrison A14


Course Overview

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.

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.


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.

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. 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.

Instructor Availability

To ask a question or schedule an appointment outside of class, please send email to

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


  (Tuesday, Aug. 27, 2019) – 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
iHeartMedia v. Sheridan, 30 Ga. 771 (March 20, 2017)

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.  TYPES OF LAW: CRIMINAL, CIVIL, CONTRACT, TORT  (Thursday, Aug. 29, 2019) – Different types of legal wrongs and remedies. How law is made. Distinction between civil and criminal law, contract law and tort law. Intentional torts and negligence.

Reading: Dressler, Criminal Law (64 pp., but very informative)
Contract Basics
Pennsylvania Uniform Commercial Code 13 Pa. C.S. §§2101-2328 (read for concepts and structure, not detail)
Standler, Elements of Torts in the U.S.A.
Restatement (Third) of Torts (Table of Contents only)

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.

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. 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.

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. 10, 2019) – 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. 12, 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? 

Reading: Zippo Manufacturing v. Zippo Dot Com Inc., 952 F.Supp. 1119 (W.D. Pa. 1997)
Sioux Transportation., Inc. v. XOP Logistics, Inc. et al. (W.D Ark., Dec. 22, 2015)
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. 17, 2019) – 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. 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?

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


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?

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) v. McCants (Fla. 4th Dist. Ct, App, Feb. 15, 2017)
Artifex Software, Inc. v. Hancom, Inc. (N.D. Cal., Apr. 25, 2017)
Fundamentals of Software Licensing, Classen
Taking the Case: Is the GPL Enforceable?, Wacha

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.

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
JBB Investment Partners v. Fair (Cal. App. 1st Dist., Dec. 5, 2014)

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


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.

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. 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).

Reading: Saipan et al., Are Robots Human?
Scherer, Regulating Artifical Intelligence Systems
Gless et al., If Robots Cause Harm, Who is to Blame?
Petit, Law and Regulation of Artifical Intelligence and Robots

Optional Reading: Machines Without Principals: Liability Rules and Artifical Intelligence
Calo, Robots in American Law
Balkin, The Path of Robotics Law
Lunders et al., Autonomous vehicles: The legal landscape in the US
Joh, Policing Police Robots
Vacek, The Next Frontier in Drone Law
Simon, The Intersection of Drones and Insurance


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? 

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.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.

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)


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.

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. 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.

Reading: American Geophysical Union v. Texaco, 60 F3d 195 (2d Cir. 1994)
Author's Guild v. Google (2d Cir., Oct. 16, 2015) VERY IMPORTANT CASE ON FAIR USE
Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984) (the Betamax case)
LiveNation Motor Sports, Inc. v. Davis, 81 USPQ 2d 1267 (N.D. Tex. 2006)
Use My Photo (NY Times, Oct. 1, 2007)

Optional Reading: CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004)
Sony v. Connectix, 203 F.3d 596 (9th Cir. 2000)
Perfect 10, Inc. v., Inc., 487 F.3d 701 (9th Cir. 2007)
Parker v. Google (3d Cir. 2007)

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.

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)
Oracle v. Google,750 F.3d. 1339 (Fed. Cir. 2014)
, ruling that APIs are copyrightable, a very controversial decision

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

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.

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., 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)


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? 

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
KSR International v. Telelex, 127 S. Ct. 1727, (2007) (major Supreme Court case on obviousness)

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.

Reading: Alice Corporation Pty. Ltd. v. CLS Bank International et al. (Sup. Ct. 2014)
Impression Products, Inc. v. Lexmark International, Inc. (Sup. Ct. 2017)
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. 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

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

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 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. 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)


23. 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.

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)

South Dakota v. Wayfair, Inc. (Supreme Court, June 21, 2018)
Internet Tax Freedom Act
St. Tammany Parish Tax Collector v., 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)

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?

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

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.

Reading: Radia & Melugin, Net Neutrality Primer
FCC Notice of Proposed Rulemaking (Apr. 27, 2017)

Optional Reading: U.S. Telecom Association v. FCC (No. 15-603, D.C. Cir. May 1, 2017) 109 pp.
Alexiadis, EU Net Neutrality Policy and the Mobile Sector

26. 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.

Reading: Legal Resource Guide
Seed Series ABC
Startup Law 101
Venture Financing Overview



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.

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)
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

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

27. 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.