Computer Law 484
Professor Richard H. Stern
Last major update 10-14-05
Bulletin Board for Computer Law 484:
This is the main navigation source for all C-Law materials on this web site (...facweb/claw/...). You therefore may find it helpful to make a "bookmark" to this page. You are invited to suggest posting of links here to WWW material that you have come across and consider would be a help to others taking this course.
All of the cases and materials are available at this course Web site. There no longer is an updated printed version of the casebook (INTELLECTUAL PROPERTY PROTECTION OF DIGITAL INFORMATION IN THE NEW MILLENNIUM: CASES AND MATERIALS ON INTELLECTUAL PROPERTY RIGHTS IN COMPUTER PROGRAMS AND RELATED SUBJECT MATTER (Vers. 0.10 – January 2002)). However, the library has copies of all past printed versions. As indicated elsewhere on this Web site, each student enrolled in Computer Law 484 is granted a nonroyalty-bearing, personal, nontransferable license to download to any form of memory and print a copy of the Web site materials for the student's own use only in connection with the course.
For the first class, please read about one third of the first chapter, section A. You can find an HTML version of section A of chapter 1 at this link. A Table of Contents (Web Table) with links to the other chapters is also available. The Web Table page is the most convenient navigation map for navigating the course materials. You may therefore want to bookmark it.
Try to stay 50 pages (in terms of printouts) ahead of where the discussion stopped at the end of the last class. The future affects the past — new cases put a different spin on old cases. (Time's entropy arrow doesn't work in this course's case materials.)
In 2010, principal emphasis will be on the material in chapter 6 — that chapter includes linking, framing, popup advertising, and derivative works. The caselaw in chapter 6 and earlier chapters involving non-Internet, non-computer software matters mainly provides a background and context for Internet, computer-software cases and, in particular, the material in chapter 6.
For the Spring 2010 semester, the required paper is to be on the copyright topic described below. But if you strenuously object to it, you may instead submit a paper on a different, approved topic.
The 2010 topic is this: You are a law clerk for a judge on the notional GWLS Circuit, to which has been sent the appeal from the district court decision in Wells Fargo v. UWhen, which is found in chapter 6C of the course materials. The judge asks you to prepare for him a draft opinion on the copyright infringement issues. In doing so, you should cover all copyright issues that either party would rationally raise on appeal.. (Someone else is preparing the draft on trademark and all other issues. Do not address them.)
Use the following format: 8.5 x 11, single spaced, skip line between paragraphs, 1 inch margins, 13 point Times New Roman or other serif font for text, footnotes (do not use end notes instead) on same page as corresponding text and no smaller than 12 point. The word count is not hard and fast but try to stay between 4500-6000 for regular term papers. (The law school expects approximately 8000 words. for JD Writing papers and they have additional requirements,)
Term papers can no longer be used to satisfy the upper level writing requirement simply by making them longer. See the "Papers" page (next).
Please read the Paper link, which provides further information on term papers and JD papers. Please ask questions about term papers for this course only after you have read this page and thought about it. This page tries to cover most FAQ.
Remember to put the pledge statement at the end.
Make a point of checking this Web page for supplemental material and notices at least once a week.
Get into the habit of using Google (see bottom of this page) or another search engine to supplement the casebook materials whenever you sense a disconnect. You can use the search engine provided at the bottom of this page to research anything on the WWW. For example, you can cut-and-paste any word or phrase on this page, dump it into the box at the bottom of the page, and hit Enter.
A button is provided below to the U.S. Copyright Office's Web site. It has FAQ and other general useful information about copyright law. Another helpful source of general information about copyright law is provided in the Web site of Professor Lee Hollaar of the School of Computing at the University of Utah. The link is to his page on how copyright comes into being, but the navigation cell at the left of the page provides links to other material, including software-related copyright . A general summary of software copyright issues is also included.
Please think about the following things and be prepared to opine about them for the next several classes:
Further to point raised in class Jan. 9, regarding power of Congress to enact weird copyright laws:
But, Justice Stevens concluded, “as I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: ‘The Constitution does not prohibit legislatures from enacting stupid laws.’ ”
From Jan. 16 NYT article on Supreme Court ruling that New York’s selection of nominees for State Supreme Court by means of party conventions is both constitutional and reasonable — “Party conventions, with their attendant ‘smoke-filled rooms’ and domination by party leaders, have long been an accepted manner of selecting party candidates,” Justice Antonin Scalia wrote… See also City of London v. Wood, 12 Mod. Rep. 669, 678-88, 88 Eng. Rep. 1592, 1602 (K.B. 1701) (“An act of parliament can do no wrong, although it may do several things that look pretty odd.”) (Holt, C.J.).
Why is Baker v. Selden [Ch. 1A] such an important precedent in copyright law concerning computers and computer software, and why is it so often cited?
Is Baker v. Selden based on statutory construction? The Constitution? Something else?
Could Selden have patented the Selden system? Would its business, rather than industrial, character have been an obstacle? If Selden could not have obtained a patent, should copyright law fill the void existing in our legal apparatus for promoting the progress of science and useful arts? Who should decide? Why? What if Congress persistently leaves the field unattended? What if, as some government intellectual–property officials have asserted, the matter is too complex for members of the Congress to understand or even be trusted with?
[Benson case, Ch. 1A.] What's wrong with patents on ideas? "[A]bstract intellectual concepts [ideas] are not patentable, as they are the basic tools of scientific and technological work." What does that mean? Is a sorting algorithm or E=mc^2 really like a screwdriver or a plumb bob?
Does the Constitution impose any obstacle to patents on abstract intellectual concepts? Can Congress grant patent-like legal protection on abstract ideas by legislating under the Commerce Clause instead of the Patent Clause? Any limit on that? See Railway Labor Executives Ass'n v. Gibbons, 455 U.S. 457, 468-69 (1982) ("If we were to hold that Congress had the power to enact nonuniform bankruptcy laws pursuant to the Commerce Clause, we would eradicate from the Constitution a limitation on the power of Congress to enact bankruptcy laws"); United States v. Moghadam, 175 F.3d 1269, 1280-82 (11th Cir.) (copyright/anti-bootlegging case), cert. denied, 120 S. Ct. 1529 (2000). What about the Necessary and Proper Clause?
Link to article on attempt to use treaty power to create a new copyright-like IP right in Internet "Webcasting." The new right would prohibit unauthorized redissemination of content, irrespective of source of public domain status, without explicit fair use rights. What is the interplay between such a treaty and Article III, section 8, clause 8?
How did the plaintiff in Haslem v. Lockwood [Ch. 1B] acquire a property right?
In connection with the Willow River case [Ch. 1B], think about (or review or set your browser's search engine to) Euthyphro. What, if anything, do nearly two and a half millennia of study and analysis of Euthyphro teach us about solving the Willow River problem, particularly in the context of determining what should be enforceable IP rights in Third Millenium digital information? (This is another possible paper topic for non-techies.)
Why is Willow River significant for a computer software I.P. course?
In Kaiser Aetna is Rehnquist, J., and even more so in Monsanto is Blackman, J., a Benthamite? A modified Benthamite? How?
Suppose that I invest a vast amount in developing my attractive Web site that instructs people in interesting and amusing things about patent and copyright law. On the home page, I place an index with links to further pages where I locate my interesting and amusing essays on specific IP topics. I also sell banner advertising on my home page and links to commercial sites (such as amazon.com) that pay me when visitors to my home page click on such a link to visit a linked site.
That remorseless villain, Professor Nefarious, then places links on his Web page that are direct links to my essays. That causes users of his Web page to get to my essays without first being exposed to my home page where the banner advertising and links to commercial sites are located. This "deep linking" vastly offends me because it deprives me of my investment-backed expectations. Have I a good claim against that conscienceless scoundrel Professor Nefarious for his invasion of an enforceable property right? What would Bentham or Rehnquist or Blackman say?
Suppose that Professor Nefarious operates a search engine, "FindC-Law" - where people go to look up computer law things. He rigs his search engine so that if anyone enters "Professor Stern" as a search term, his engine routes the user to an XXX site. You can imagine what that does to my sensibilities and my investment backed expectations about my IP Web site. Has he invaded my property rights? See Playboy v. Netscape.
Is it sound to consider "investment-backed expectation" as a sufficient condition for existence of a property right? Is it a necessary condition? Test these propositions with examples. How should we decide whether a hitherto unknown computer- or Internet-related interest is a property right, so that its invasion (or another's interference with it) gives rise to a claim for damages and/or injunction?
Here is a Reuters story on a claim by newspaper publishers that Google is ripping off their property without fair compensation by engaging in "news aggregating," the practice of "automatically pull[ing] in headlines, photos and short excerpts of articles from thousands of news sources, [and presenting them to users by] linking back to the publishers' own site." Here is a Reuters depiction of what Google News looks like. Check out, also, the Google adv't in the lower right corner of the Reueters story.
More on Smell-o-vision and the like, discussed in class Feb. 1 – see this article by Professor Tom Field on a Dutch case; a very recent French case addresses a scent composition, but I have it only in French. If someone wants to go to the trouble of making a translation into English, I'll post it.
Link to Jan. 19, 2006, district court decision ruling in favor of Google against claim that its search engine violates would-be copyright troll's property rights. Decision is a compendium of case-law on fair use and infringement in Internet context.
Link to Feb. 21, 2006, district court decision ruling against Google on claim by P10 that Google's thumbnails as to P10 are not like ArribaSoft's thumbnails of Kelly in the ArribaSoft case. Link to letter from Perfect 10 to Google complaining about Google's use of P10 images.
We will not discuss Dowling or SFA&A in class. You should read Legal Mythology [at end of Ch. 1B], but we will not discuss it in class in any detail. To the extent that you do not find it self explanatory, feel free to raise questions about it in class. We will go from INS to Ch. 1D. (Ch. 1C is tutorial material and will not be discussed in class in any detail.)
We will stop Ch. 1D at the discussion of the Burns Bldg. after the Hartford Empire case, and proceed from there to Ch. 2. (The omitted material concerns whether patents are property rights in various contexts and what kind of interference with a property right is a taking. As always, you are free to indulge your intellectual curiosity and read this omitted material on your own.)
Please read all of chapter 5 for March 19. We'll try to start on chapter 6 on March26.
Link to amicus curiae brief of Professor Stern in Federal Circuit's Bilski case, filed on behalf of CASRIP.
For those of you thinking about your term papers, here's a recent district court decision on transformative use of term papers, but it is not a parody case or case about other derivative works. There are things wrong with much of what the court says, but not with the fair use analysis. Or is there? Would you object if Turnitin databased your term paper?
Chapter 6: Link to background material on In re Uriah's Wife Bathsheba. See this also. You may see an annoying pop-up window. Think about whether it would involve preparation of an unauthorized derivative work if the window were there by reason of the acts of someone other than bartleby.com. What would the Artic court say, under the hands-laying doctrine? The Annie Lee court?
Start reviewing the numerous linking and framing pages as we move up on that part of the course materials. You can't get up to speed on all of it at once, so don't wait until the last minute. Start doing it in installments now. Keep reading chapter 6, to its end. (But not past 6C.) Remember that pop-up blockers interfere with the demos.
There are links to the district court and CA9 ops. in Arriba Soft on the NavigMap page. Here are links to a petition for rehearing by Arriba and to an amicus curiae brief of the EFF. You will want to study the district court and Ninth Circuit opinions, as well as the petition and amicus curiae brief. Some of the issues raised by the Ninth Circuit's trail blazing foray into the public display right, in the context of linking and framing, are discussed at the end of the last LHOOQ page. (The LHOOQ pages discuss derivative works on the Internet.)
We will read and discuss the Arriba Soft materials after the end of chapter 6A (right after the Big Hairy Woman case). Then we will put the text material down, put the casebook aside, and use the Web site material on linking, framing, alert boxes, pop-up windows, and other related material (mousetrapping, LHOOQ). We'll proceed to chapter 6B later -- late March or early April.
Here are Les Kelly's comments from his Web page as to what he's mad about regarding image search engines:
As a result of my review, independent of the decision by the Ninth Circuit Court of Appeals, of the major image search engines (Google, PicSearch, Alta Vista and Lycos (FAST), it appears that Google may be most at risk based on the decision by the Ninth Circuit Court of Appeals in the manner in which it displays images. Google offers a split screen wherein the 'scaled down' image, which in the case of smaller images may actually be full size, appears above the actual web page on which the image appears. Google does not, however, offer advertising within the split screen.
PicSearch and Alta Vista offer split screens with the thumbnail displayed again at the top of the page with the web page below. PicSearch does not yet offer advertising at its website today. Alta Vista does not offer advertising with the second display of the thumbnail.
Lycos has two displays of the thumbnail before arriving at the full page of the website. Advertising appears with each thumbnail display.
As clearly demonstrated by Ossola [DC lawyer representing Kelly], Sigall and Krongold in the Kelly brief, Arriba Soft and Ditto.com clearly controlled how they chose to display thumbnail and full size images. So, too, this follows that it can be shown that each of the major search engines have made a conscientious decision of how to display images. The question, then, follows: Do the current displays by image search engines comply with the decision in Kelly v Arriba Soft? Why is a split screen necessary?
It is important, too, to note that the Ninth Circuit Court of Appeals does not touch on the subject of robots.txt. This, despite the belief of many 'techies', is not a part of the copyright law. The argument of many, to include Dr. Henry Gladney, IBM-Almaden, is not supported by case law nor the statutes themselves.
Consider Kelly's position, as restated in the brief of his amicus, the American Society of Media Photographers, Inc., about how linking must be carried out to avoid copyright infringement:What's the problem with -- "Merely linking to Kelly’s originating home page, on the other hand, without free-standing display of the full-size images, would not run afoul of the fair use limits established by the Panel"? That might work with finding an image that's on the home page or otherwise very easy to find. But what if you have to wade through buckets and buckets of irrelevant garbage to find what you are looking for? Anyway, what does § 106 say about preserving images in or, conversely, "divorced from the context in which they were displayed by the copyright owner"? Does any part of § 107 speak to this in any way?
Far from putting “linking” generally at risk, the Panel’s decision holds that where search engines not only link to the copyright owner’s site, but also display full-size images from that site divorced from the context in which they were displayed by the copyright owner and presented in the context of the search engine’s own site, copyright infringement has been committed. Merely linking to the copyright owner’s site, which on this record Ditto never confined itself to, is not proscribed or subject to copyright risk by the Panel’s decision. ...
[I]t was the actual display of the full-size images of Kelly’s work stripped from the original context that was not fair use. Merely linking to Kelly’s originating home page, on the other hand, without free-standing display of the full-size images, would not run afoul of the fair use limits established by the Panel. It is striking that nowhere in Ditto’s or amici’s briefs do they explain why linking could not be constructed in this fashion. ...
These are the plain and unmistakable teachings of the Panel’s decision. How it might be applied to practices of other search engines is something best left to the evolution of case-by-case precedents, each of which will be attuned to the specific practices of the service at issue.
Les Kelly, the plaintiff in Arriba, sent me a pdf file of the Rehearing Brief that Chuck Ossola prepared in that case, and I have now posted it so that you can read it.
Look at the updated Linking page, and compare the home pages of Professors Wary and Hapless once again. Based on Arriba considerations, Professors Warier and Wariest have contributed their insights about to link or not to link.
Sample the materials at the bottom of the Framing page, including the blue Java box and then Professor Nefarious' home page. To get best results with Prof. N's page, close your task bars or as many of them as you can do without, to get a bigger screen area. Once on the page, start at the top. Click on the top frame to give it the "focus." (You can then use your arrow keys instead of the scroll or slide bar, if you want.) Review what Prof. N has to say about how to activate his site (you need to click on the gray bars to activate commentary frames). Check out Prof. Rashi under the technical notes, to see some very old framing. To go from one frame to another, e.g. to activate scroll bars, you must click on the frame that you want to be active, so that it gets the "focus." You can expand the size of a frame by placing the cursor on its border and dragging.
Go back to the navigation map page and work your way down the page. Take your time on the demo of massive framing. FYI, different browsers get different popup messages on mouseover. (Watch out for your pop-up blockers – you need to disable them.)
Current General Information (not for class - just F.Y.I.)
News item: DOT-COM SUES LAW FIRM OVER ADVICE. MP3.com says Cooley Godward Should Have Warned of Copyright Issues, says shoddy legal advice from its former outside counsel, Cooley Godward, is to blame for its legal woes...
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