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Principles Of The Law Of Software Contracts: Some Highlights, Robert A. Hillman, Maureen O'Rourke
Principles Of The Law Of Software Contracts: Some Highlights, Robert A. Hillman, Maureen O'Rourke
Robert Hillman
The final draft of the Principles of the Law of Software Contracts ("Principles") was unanimously approved by the American Law Institute membership in May of 2009. The goal of the project is to “clarify and unify the law of software transactions.” However, the Principles will not become law in any jurisdiction unless and until a court adopts them, so only time will tell whether the project will accomplish this goal. Nevertheless, one thing is certain. The current law of software transactions, a mish-mash of common law, Article 2 of the Uniform Commercial Code, and federal intellectual property law, among other …
Contract Law In Context: The Case Of Software Contracts, Robert A. Hillman
Contract Law In Context: The Case Of Software Contracts, Robert A. Hillman
Robert Hillman
The membership of The American Law Institute unanimously approved the “Principles of the Law of Software Contracts” in May of 2009. In this essay for a symposium in the Wake Forest Law Review, I draw on my experience as Reporter on the ALI project to add my perspective on an interesting general question: Is specialization of contract law wise and, if so, in what contexts? I certainly cannot definitively answer the question of whether in the abstract society is better off with general or specialized law, but my experience in drafting the software rules, along with Associate Reporter, Maureen O'Rourke, …
Forward To The Past, Michael Risch
Forward To The Past, Michael Risch
Michael Risch
The Supreme Court’s decision in Bilski v. Kappos - banning all patents claiming ‘‘abstract ideas,’’ but refusing to categorically bar any particular type of patent - represents a return to the Court’s past patentable subject matter jurisprudence. In so returning, the Court determined that business methods could potentially be patentable. This Supreme Court Review article discusses what is essentially a restart: lower courts and the PTO must remake the law using the same precedent that led to the rigid rules rejected by the Court in Bilski. Part I discusses Mr. Bilski’s patent application and the Court’s ruling that it is …
How Can Whelan V. Jaslow And Lotus V. Borland Both Be Right? Re-Examining The Economics Of Computer Software Reuse, Michael Risch
How Can Whelan V. Jaslow And Lotus V. Borland Both Be Right? Re-Examining The Economics Of Computer Software Reuse, Michael Risch
Michael Risch
The basic economic goal of copyright law is to balance an author's incentive to create with his or her ability to build on prior work in order to maximize social wealth. This balance is extremely important for computer software. On the one hand, software is often expensive to create and companies therefore need protection in order to recoup their investment. On the other hand, software is often expensive to create and companies can save costs by reusing pre-existing work. Quite often, the same companies that want to protect their software also want to use pre-existing work. As a result of …