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) HOMEWORK 2 AVAILABLE
NEW: THE 08-632 EXAM WILL BE TAKE-HOME. IT WILL BE POSTED HERE BY 9:00 A.M. ON FRIDAY, OCTOBER 17. THE EXAM WILL BE DUE AT 9:00 A.M. SATURDAY, OCTOBER 18. EVEN THOUGH AN EXAM ROOM WAS SCHEDULED BY THE REGISTRAR, NO EXAM WILL BE HELD THERE. 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. 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 in 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 COS 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 intended for students in the Privacy Engineering program. 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. Teaching Assistant 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. 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. Course Syllabus Topic 1 - THE LEGAL PROCESS 1. COURTS (Tuesday, Aug. 25, 2014) – 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). View SLIDES. Reading:
Introduction to the Court System (Barclay) Optional reading: Reading:
Overview of the Civil Court Process (Indiana) Optional reading:
A Practical Introduction to Electronic Discovery (Judge Nuffer) 3. REGULATORY LAW (Tuesday, Sep. 2, 2014) – 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. View SLIDES. Reading:
A Guide to the Rulemaking Process (Office of the Federal Register) Optional Reading:
Code of Federal
Regulations (C.F.R.) [Just browse, particularly Titles 16, 37 and
47.] 4. INTERPRETING STATUTES (Thursday, Sep. 4, 2014) – 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. View SLIDES. Reading:
Statutory Construction Act, 19 Pa. C.S. §1921 Optional reading:
Regina v. Ojibway (a classic of legal writing) 5. JURISDICTION (Tuesday, Sep. 9, 2014) – 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. View SLIDES. Reading:
International Shoe Co. v. Washington, 326 U.S. 310 (1945)
(fundamental
U.S. case on personal jurisdiction) Optional Reading:
Citron: Minimum Contacts in a Borderless World 6. INTERNET JURISDICTION (Thursday, Sep. 11, 2014) – 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? View SLIDES. HOMEWORK 1 AVAILABLE. Reading:
Zippo Manufacturing v. Zippo Dot Com Inc., 952 F.Supp. 1119 (W.D. Pa.
1997) Optional 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 (Tuesday, Sep. 16, 2014) – 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. View SLIDES. Reading:
Federal Rules of Evidence
(Articles I, IV, VIII, IX, X) Optional Reading:
Chung & Byer, The Electronic Paper Trail 8. SCIENTIFIC EVIDENCE (Thursday, Sep. 18, 2014) – 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? View SLIDES. Reading:
Daubert v. Merrell Dow, 509 U.S. 579 (1993) Optional Reading:
Commonwealth v. Serge, 896 A.2d 1170 (Pa. 2006), cert.
den. (2006) Topic 3 - BUSINESS TRANSACTIONS 9. SOFTWARE LICENSES (Tuesday, Sep. 23, 2014) – 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? View SLIDES. Reading:
ProCD v. Zeidenberg, 86 F.3d 1447 (7th
Cir. 1996) Optional Reading:
Fundamentals of Software Licensing, Classen 10. ELECTRONIC TRANSACTIONS (Thursday, Sep. 25, 2014) – 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. View SLIDES. Reading:
Uniform Electronic Transactions Act Optional Reading:
Legal Issues in Open Source and Free Software Distribution, Nimmer Topic 4 - PERSONAL INTRUSIONS 11. DATA PRIVACY (Tuesday, Sep. 30, 2014) – 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. View SLIDES. 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.. Optional Reading: 12. DEFAMATION AND FREE SPEECH (Thursday, Oct. 2, 2014) – 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? View SLIDES. Reading:
Bosky, Defamation in the Internet Age Topic 5 - INTELLECTUAL PROPERTY 13. TRADE SECRETS (Tuesday, Oct. 7, 2014) – 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? View SLIDES. Reading:
Uniform Trade Secrets Act (short)
Optional Reading:
Ford Motor Co. v. Lane, 67 F.Supp.2d 745 (E.D. Mich. 1999) 14. CONFIDENTIALITY AGREEMENTS (Thursday, Oct.9, 2014) – 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. View SLIDES. HOMEWORK 2 AVAILABLE. Reading:
HP Complaint Against Mark Hurd, filed Sept. 10, 2010 Optional Reading:
NEC nondisclosure agreement LECTURE 14 IS THE LAST LECTURE IN 08-632 READING PERIOD OCTOBER 14-16. NO CLASSES 15. COPYRIGHT (Tuesday, Oct. 21, 2014) – 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) Optional Reading:
Copyright and New Technologies 16. FAIR USE (Thursday, Oct. 23, 2014) – 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) Optional Reading:
CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544
(4th Cir. 2004) 17. FILE SHARING (Tuesday, Oct. 28, 2014) – "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:
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) Optional Reading:
Digital Rights Management 18. COPYRIGHT IN COMPUTER PROGRAMS (Thursday, Oct. 30 2014) – 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 Optional Reading:
The "Abstraction, Filtration, Comparison Test" (Ladas & Perry LLP) 19. THE PATENT PROCESS (Tuesday, Nov. 4, 2014) – 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 Optional Reading:
The Admissibility and Utility of Expert Legal Testimony
in Patent Litigation, Pollack 20. SOFTWARE PATENTS (Thursday, Nov. 6, 2014) – 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 Optional Reading:
Patent Scope and Innovation in the Software Industry,
Cohn & Lemley 21. BUSINESS METHOD PATENTS (Tuesday, Nov. 11, 2014) – 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. However, the Patent Office has issued numerous patents on ecommerce business methods, some of which we will examine closely. Reading:
Alice Corporation Pty. Ltd. v. CLS Bank International et al. (Sup. Ct. 2014) Optional Reading:
Introduction to Patent Searching, Baillie 22. ANATOMY OF PATENT CASES: MIRROR WORLDS V. APPLE, APPLE V. SAMSUNG (Thursday, Nov. 13, 2014) – 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 23. DOMAIN NAMES (Tuesday, Nov. 18, 2014) – 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) Optional Reading:
Avery Dennison v. Sumpton, 189 F.3rd 868, 880-81 (9th Cir. 1999) Topic 6 - GOVERNMENT REGULATION 24. INTERNET TAXES (Thursday, Nov.
20, 2014) – 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. Optional Reading:
Amazon Pushes Hard to Kill a Tax (NY Times, Sept. 5, 2011) 25. TECHNOLOGICAL ANTITRUST (Tuesday, Nov. 25, 2014) – 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) Optional Reading:
Unilateral Technology Suppression, Chin NO CLASS ON THANKSGIVING, NOV. 2 6Topic 7 - COMPUTER CRIME 26. COMPUTER CRIME (Tuesday, Dec. 2, 2014) – 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. (1st
Dist., May 21, 2007) Optional Reading: State Criminal Jurisdiction in Cyberspace: Is There a Sheriff on the Electronic Frontier?, Berg 27. COMPUTER CRIME (Tuesday, Dec. 4, 2014) – Computer Fraud and Abuse Act, crimes against computer systems: denial of service attacks, vandalism, cyberterrorism. Reading:
Computer Fraud and Abuse Act Computer Crimes Cases Prosecuted by the US Dep’t. of Justice |
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