Law Commons^™

Do Patents Drive Investment In Software?, James Hicks

Northwestern University Law Review

In the wake of a quartet of Supreme Court decisions which disrupted decades of settled law, the doctrine of patentable subject matter is in turmoil. Scholars, commentators, and jurists continue to disagree sharply over which kinds of invention should be patentable. In this debate, no technology has been more controversial than software. Advocates of software patents contend that denying protection would stymie innovation in a vital industry; skeptics argue that patents are a poor fit for software, and that the social costs of patents outweigh any plausible benefits. At the core of this disagreement is a basic problem: the debate …

Considering A Right To Repair Software, Robert W. Gomulkiewicz

Articles

The right to repair movement aims to extend the usability of products by allowing a consumer (or a repair professional acting on the consumer’s behalf) to fix broken products. Implicitly, the movement’s focus has been on hardware—on the right to repair cars, tractors, and phones. But as more and more of the functionality of goods comes from software, it is important to consider whether we need a right to repair software. There are practical challenges to software repair. For example, fixing software is more difficult and treacherous than fixing hardware. Complicating matters further, more and more software is embedded in …

A Loaded God Complex: The Unconstitutionality Of The Executive Branch’S Unilaterally Withholding Zero-Days, Brendan Gilligan

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Metasoftware: Building Blocks For Legal Technology, Houman Shadab

Articles & Chapters

This Article develops a novel concept in information technology called metasoftware. It then applies the concept of metasoftware to developing legal technology.

Metasoftware enables users to create the software of their choosing and stands in sharp contrast to traditional, functional software that is intended for a particular purpose or a defined range of tasks. Functional software is the default type of software that is currently produced and includes word processing, email, social networking, enterprise resource management, online marketplaces, and video game software. Metasoftware, by contrast, is not functional. Metasoftware presents the user with a blank slate upon which to build …

Software Patent In U.S. Law, Mohammed Hassan Abdullah

UAEU Law Journal

The handling of the patent system is at variance in the American system with that in the European Union's system, where the American system began to allow software protection under its patent system in addition to copyright protection while the European Union's Patent Office accepts this tendency some member States reject it. This affects negatively the level of protection and its nature, which should be available in a suitable and balanced manner between the different legal systems due to the nature of software as a countries' trans-border product. Thus, this research study calls for a special system of protection since …

A Tale Of Two Interoperabilities; Or, How Google V. Oracle Could Become Social Media Legislation, Charles Duan

Articles in Law Reviews & Other Academic Journals

The Supreme Court'srecent decision in Google LLC v. Oracle America, Inc. has provided the latest word on an issue that many have described as "interoperability," and it comes at a time when lawmakers around the world are debating a policy called "interoperability" with respect to majorInternetplatforms. At first glance, these two similarly named policy conversations copyright protection of software interfaces and interconnection among competing Internet platforms, respectively have little to do with each other. Yet they are vitally intertwined: the activities and issues featured in Google are so closely linked to the questions of digital competition that interoperability reforms directed …

Hybrid Ip Rights For Software, Apis, And Guis: Understanding Copyright's Paradigm Shift, Howard Skaist

Catholic University Journal of Law and Technology

The non-literal scope of protection for software is intricate legally and is intricate technical. Thus, despite literally decades of court decisions and a mountain of legal scholar written on the subject in that time, it appears that there is still no consistent agreement about it, as evidenced by the Google v. Oracle which has percolated in the courts for nearly a decade and is now being heard by the US Supreme Court (oral argument was on October 7, 2020). However, the thesis of this article that a legal construct is capable of being formulated that is analytically consistent and that …

The Sword Of Damocles: How The Fair Use Defense Application Affects The Computer Programming Area, Ziyi Gao

Touro Law Review

No abstract provided.

Copyright And Disability, Blake E. Reid

Publications

A vast array of copyrighted works—books, video programming, software, podcasts, video games, and more—remain inaccessible to people with disabilities. International efforts to adopt limitations and exceptions to copyright law that permit third parties to create and distribute accessible versions of books for people with print disabilities have drawn some attention to the role that copyright law plays in inhibiting the accessibility of copyrighted works. However, copyright scholars have not meaningfully engaged with the role that copyright law plays in the broader tangle of disability rights.

The Use Of Technical Experts In Software Copyright Cases: Rectifying The Ninth Circuit’S “Nutty” Rule, Shyamkrishna Balganesh, Peter Menell

All Faculty Scholarship

Courts have long been skeptical about the use of expert witnesses in copyright cases. More than four decades ago, and before Congress extended copyright law to protect computer software, the Ninth Circuit in Krofft Television Prods., Inc. v. McDonald’s Corp., ruled that expert testimony was inadmissible to determine whether Mayor McCheese and the merry band of McDonaldland characters infringed copyright protection for Wilhelmina W. Witchiepoo and the other imaginative H.R. Pufnstuf costumed characters. Since the emergence of software copyright infringement cases in the 1980s, substantially all software copyright cases have permitted expert witnesses to aid juries in understanding software …

Brief Of Amicus Curiae Interdisciplinary Research Team On Programmer Creativity In Support Of Respondent, Ralph D. Clifford, Firas Khatib, Trina Kershaw, Kavitha Chandra, Jay Mccarthy

Faculty Publications

This brief answers the two primary issues that are associated with the first question before the Court. First, the programmers’ expression of the Java-based application programmer interfaces (“APIs”) are sufficiently creative to satisfy that requirement of copyright law. Second, the idea expression limitation codified in Section 102(b) of Copyright Act does not establish that the APIs are ideas. Both of these assertions are supported by the empirical research undertaken by the Research Team. This brief expresses no opinion on the resolution of the fair use question that is also before the Court.

Artificial Creativity: A Case Against Copyright For Ai-Created Visual Artwork, Megan Svedman

IP Theory

Artificial intelligence is becoming increasingly complex, and provides examples of compelling, human-like performances. One such artificial intelligence technology is known as Creative Adversarial Network (“CAN”) technology, which relies on inputs of preexisting pieces of art to create pieces of original art that pass as human-made. Whether the coders responsible for CAN-technology should be granted coverage for the resultant art remains an open question in United States jurisprudence. This paper seeks to explore why, given both software’s historical legacy in copyright law and bedrock copyright justifications, extending copyright coverage to the coders responsible for CAN technology would be a grave misstep …

Nonexcludable Surgical Method Patents, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

A patent consists of only one right: the right to exclude others from practicing the patented invention. However, one class of patents statutorily lacks the right to exclude direct infringers: surgical method patents are not enforceable against medical practitioners or health care facilities, which are the only realistic potential direct infringers of such patents. Despite this, inventors regularly file for (and receive) surgical method patents. Why would anyone incur the expense (more than $20,000 on average) of acquiring a patent on a surgical method if that patent cannot be used to keep people from using the patent?

The traditional answer …

Unscrewing The Future: The Right To Repair And The Circumvention Of Software Tpms In The Eu, Anthony D. Rosborough

Articles, Book Chapters, & Popular Press

This analysis examines the impact of software technological protection measures (“TPMs”) in the European Union which inhibit the repair and maintenance of products. Using John Deere tractors as a case study, this analysis addresses the growing number of products which incorporate computerisation and TPMprotected software into their design and function. In utilising software integration and TPMs, many product designs now allow manufacturers to retain considerable control over the manner of repair and choice of technician. In response, consumers and lawmakers are calling for legal reforms to make self-repair and servicing easier. Both the competition law and moral implications of this …

Can An Improved Disclosure Mechanism Moderate Algorithm-Based Software Patentability In The Public Interest?, Vinicius Sala

Cybaris®

No abstract provided.

Patents For Sharing, Toshiko Takenaka

Michigan Technology Law Review

Spurred by the Internet, emerging technologies have changed the way commercial firms innovate and have made it possible for individuals to play an important role in that innovation. Producers in the Information Communication Technologies (ICT), and other sectors dealing with complex technologies with many separately patentable components, find it increasingly difficult to make products without infringing on patents held by others. Numerous overlapping patents often cover such products. Producers have developed a new way to use patents: as inclusive rights for sharing their technologies with others through cross-licensing and other private ordering arrangements in order to ensure the freedom to …

Internet Of Infringing Things: The Effect Of Computer Interface Copyrights On Technology Standards, Charles Duan

Articles in Law Reviews & Other Academic Journals

You connect to the Internet via your Wi-Fi access point. You surf the Web using a browser and send emails through your email server. You probably use some USB peripherals-say a mouse, keyboard, or printer. Maybe you even watch cable or broadcast television.

Under current case law, each of those computer systems and devices may very well be copyright-infringing contraband. This is through no fault of your own-you need not be pirating music or streaming illegal movies to infringe a copyright. The infringement simply exists, hard-wired within each of those devices and many more that you use, a result of …

Cracking The Copyright Dilemma In Software Preservation: Protecting Digital Culture Through Fair Use Consensus, Peter Jaszi, Patricia Aufderheide, Brandon Butler, Krista L. Cox

Articles in Law Reviews & Other Academic Journals

Copyright problems may inhibit the crucially important work of preserving legacy software. Such software is worthy of study in its own right because it is critical to accessing digital culture and expression. Preservation work is essential for communicating across boundaries of the past and present in a digital era. Software preservationists in the United States have addressed their copyright problems by developing a code of best practices in employing fair use. Their work is an example of how collective action by users of law changes the norms and beliefs about law, which can in turn change the law itself insofar …

Will Artificial Intelligence Eat The Law? The Rise Of Hybrid Social-Ordering Systems, Tim Wu

Faculty Scholarship

Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Jeopardy. What are the prospects for the displacement of human courts as the centerpiece of legal decision-making? Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this Essay suggests displacement of human courts remains a distant prospect, but suggests that hybrid machine – human systems are the predictable future of legal adjudication, and that there lies some hope in that combination, …

Symbols, Systems, And Software As Intellectual Property: Time For Contu, Part Ii?, Timothy K. Armstrong

Michigan Telecommunications & Technology Law Review

The functional nature of computer software underlies two propositions that were, until recently, fairly well settled in intellectual property law: first, that software, like other utilitarian articles, may qualify for patent protection; and second, that the scope of copyright protection for software is comparatively limited. Both propositions have become considerably shakier as a result of recent court decisions. Following Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), the lower courts have invalidated many software patents as unprotectable subject matter. Meanwhile, Oracle America v. Google Inc., 750 F.3d 1339 (Fed. Cir. 2014) extended far more expansive copyright protection …

Symbols, Systems, And Software As Intellectual Property: Time For Contu, Part Ii?, Timothy K. Armstrong

Faculty Articles and Other Publications

The functional nature of computer software underlies two propositions that were, until recently, fairly well settled in intellectual property law: first, that software, like other utilitarian articles, may qualify for patent protection; and second, that the scope of copyright protection for software is comparatively limited. Both propositions have become considerably shakier as a result of recent court decisions. Following Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), the lower courts have invalidated many software patents as unprotectable subject matter. Meanwhile, Oracle America v. Google Inc., 750 F.3d 1339 (Fed. Cir. 2014) extended far more expansive copyright protection …

Rethinking Ucita: Lessons From The Open Source Movement, Matthew D. Stein

Maine Law Review

For those within the information technology (IT) industry, the phrase “open source” has been as prominent at water cooler and boardroom discussions over the last several years as the phrase “out source.” Open source is at once a software development model, a business model, a social movement, and a philosophy that has recently garnered attention from outside of the IT sphere. As such, the topic has become increasingly fertile ground for academic scholarship from several disciplines. Economists, legal academics and practitioners, computer engineers, and social commentators have offered their varying perspectives on open source software. Whether or not this attention …

Toward A Direct Functional Relationship Requirement For Claims To Software Encoded On A Computer-Readable Storage Medium: Rethinking In Re Beauregard In Response To The Uspto's Interim Guidelines Regarding The Patentability Of Data Signal Claims, Elizabeth A. Richardson

Oklahoma Journal of Law and Technology

No abstract provided.

Nonconsensual Pornography: An Old Crime Updates Its Software, Jillian Roffer

Fordham Intellectual Property, Media and Entertainment Law Journal

This Note proposes a statute that considers social media and the Internet. The proposed statute is advantageous because it understands how perpetrators abuse social media and the Internet and implements the protections that victims deserve from the legal system. When society understands the harms and “[w]hen there is no outlet for these images, no audience for these images, and no desire to post these images, that is when the images will cease to cause harm to victims.” The lessons from the criminalization of other forms of gender abuse indicate that society needs to change its attitude toward crimes that predominately …

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

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, …

Patently Insane For Patents: A Judge-By-Judge Analysis Of The Federal Circuit’S Post-Alice Patentable Subject Matter Eligibility Of Abstract Ideas Jurisprudence, Matthew B. Hershkowitz

Fordham Intellectual Property, Media and Entertainment Law Journal

The Information Age exposed the U.S. patent system to patentable subject matter that it had never considered before. In particular, software tested the courts’ understanding of patentable subject matter under section 101 of title 35 of the U.S. Code. The Supreme Court grappled with this issue in its Alice Corp. v. CLS Bank International decision, which greatly affected the patentability of software. However, the Supreme Court did not define the precise contours of patentable subject matter in Alice, and as a result, the Federal Circuit has wrestled with its meaning ever since. This Note discusses the approaches Federal Circuit judges …

Software's Copyright Anticommons, Clark D. Asay

Faculty Scholarship

Scholars have long assessed “anticommons” problems in creative and innovative environments. An anticommons develops when an asset has numerous rights holders, each of which has a right to prevent use of the asset, but none of which has a right to use the asset without authorization from the other rights holders. Hence, when any one of those rights holders uses its rights in ways that inhibit use of the common asset, an anticommons may result.

In the software world, scholars have long argued that anticommons problems arise, if at all, because of patent rights. Copyright, on the other hand, has …

Patent Pacifism, Clark D. Asay

Faculty Scholarship

Over the last decade, much of the patent law literature has focused on the problem of “patent trolls,” or patent owners who don’t make products, but sue others that do. The basic complaint against these types of entities is that they impose a tax on innovation without providing offsetting societal benefits. Furthermore, their patent assertions have been on the rise, with a significant percentage of patent suits now attributable to them. In short, the troll phenomenon suggests a problem of excessive patent assertions.

But despite the importance of the troll phenomenon, the fact remains that most patents are never asserted, …

Edelman V. N2h2: Copyright Infringement? Reverse Engineering Of Filtering Software Under The Digital Millennium Copyright Act, Cathy Nowlen

Journal of Intellectual Property Law

No abstract provided.