Law Commons^™

Modeling Through, Ryan Calo

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Theorists of justice have long imagined a decision-maker capable of acting wisely in every circumstance. Policymakers seldom live up to this ideal. They face well-understood limits, including an inability to anticipate the societal impacts of state intervention along a range of dimensions and values. Policymakers cannot see around corners or address societal problems at their roots. When it comes to regulation and policy-setting, policymakers are often forced, in the memorable words of political economist Charles Lindblom, to “muddle through” as best they can.

Powerful new affordances, from supercomputing to artificial intelligence, have arisen in the decades since Lindblom’s 1959 article …

Revolt Against The U.S. Hegemony: Judicial Divergence In Cyberspace, Dongsheng Zang

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This Article contributes to our understanding of the current state of cyber law. The global perspective demonstrates an almost uniform response to the U.S. law in cyberspace from all of America's major trading partners. In the past, comparative studies tended to focus on a single jurisdiction-typically, the European Union-and compared it with the United States. This approach, informative as it was, significantly understated the gravity of the differences between that jurisdiction and the United States. Fundamentally, it was based on an American-centric outlook with primary interests in building convergence models. In cyberspace, however, this is simply not helpful. In recent …

Regulating Bot Speech, Madeline Lamo, Ryan Calo

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We live in a world of artificial speakers with real impact. So-called “bots” foment political strife, skew online discourse, and manipulate the marketplace. Concerns over bot speech have led prominent figures in the world of technology to call for regulations in response to the unique threats bots pose. Recently, legislators have begun to heed these calls, drafting laws that would require online bots to clearly indicate that they are not human.

This work is the first to consider how efforts to regulate bots might run afoul of the First Amendment. At first blush, requiring a bot to self-disclose raises little …

Is The License Still The Product?, Robert W. Gomulkiewicz

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The Supreme Court rejected the use of patent law to enforce conditional sales contracts in Impression Products v. Lexmark. The case appears to be just another step in the Supreme Court’s ongoing campaign to reset the Federal Circuit’s patent law jurisprudence. However, the decision casts a shadow on cases from all federal circuits that have enforced software licenses for more than 20 years and potentially imperils the business models on which software developers rely to create innovative products and to bring those products to market in a variety of useful ways.

For over two decades, we could say that …

Robotics And The Lessons Of Cyberlaw, Ryan Calo

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Two decades of analysis have produced a rich set of insights as to how the law should apply to the Internet’s peculiar characteristics. But, in the meantime, technology has not stood still. The same public and private institutions that developed the Internet, from the armed forces to search engines, have initiated a significant shift toward developing robotics and artificial intelligence.

This Article is the first to examine what the introduction of a new, equally transformative technology means for cyberlaw and policy. Robotics has a different set of essential qualities than the Internet and accordingly will raise distinct legal issues. Robotics …

Enforcement Of Open Source Software Licenses: The Mdy Trio's Inconvenient Compliations, Robert W. Gomulkiewicz

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The Federal Circuit’s ruling in Jacobsen v. Katzer [535 F.3d 1373 (Fed. Cir. 2008)] finally settled the question of whether open source licenses are enforceable. Unfortunately, three recent cases from the Ninth Circuit have complicated matters. I call this trio of cases the “MDY Trio” in honor of the Ninth Circuit’s prior trio of licensing cases known as the “MAI Trio.”

On the surface, the MDY Trio provides a boost for the enforceability of software licenses, but the MDY Trio also creates two significant complications for open source licenses. First, the MDY Trio’s test for distinguishing between licenses and copyright …

Open Robotics, M. Ryan Calo

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Robotics is poised to be the next transformative technology. Robots are widely used in manufacturing, warfare, and disaster response, and the market for personal robotics is exploding. Worldwide sales of home robots—such as iRobot’s popular robotic vacuum cleaner—are in the millions. In fact, Honda has predicted that by the year 2020, it will sell as many robots as it does cars. Microsoft founder Bill Gates believes that the robotics industry is in the same place today as the personal computer (“PC”) business was in the 1970s, a belief that is significant given that there are now well over one billion …

People Can Be So Fake: A New Dimension To Privacy And Technology Scholarship, M. Ryan Calo

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This article updates the traditional discussion of privacy and technology, focused since the days of Warren and Brandeis on the capacity of technology to manipulate information. It proposes a novel dimension to the impact of anthropomorphic or social design on privacy.

Technologies designed to imitate people-through voice, animation, and natural language-are increasingly commonplace, showing up in our cars, computers, phones, and homes. A rich literature in communications and psychology suggests that we are hardwired to react to such technology as though a person were actually present.

Social interfaces accordingly capture our attention, improve interactivity, and can free up our hands …

Open Source License Proliferation: Helpful Diversity Or Hopeless Confusion?, Robert W. Gomulkiewicz

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A decade ago, I observed that licenses were the "unnoticed force" behind free and open source software ("FOSS"). Since then, legal scholarship on FOSS licensing has gone from a trickle to a torrent. Likewise, economists, political scientists, and anthropologists (among others) have begun to focus on FOSS licensing, each from their own academic perspectives. FOSS programmers themselves (known as "hackers" in the FOSS community) have refocused on FOSS licensing, most notably by revising the most venerable FOSS license, the GNU General Public License ("GPL"), for the first time in more than fifteen years.

One prominent issue among hackers and business …

The Dangers Of The Digital Millennium Copyright Act: Much Ado About Nothing?, Steve P. Calandrillo, Ewa A. Davison

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In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), a landmark piece of legislation aimed at protecting copyright holders from those who might manufacture or traffic technology capable of allowing users to evade piracy protections on the underlying work. At its core, the DMCA flatly prohibits the circumvention of “technological protection measures” in order to gain access to copyrighted works, but provides no safety valve for any traditionally protected uses.

While hailed as a victory by the software and entertainment industries, the academic and scientific communities ties have been far less enthusiastic. The DMCA’s goal of combating piracy is …

Contracting Spyware By Contract, Jane K. Winn

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The question of what constitutes "spyware" is controversial because many programs that are adware in the eyes of their distributors may be perceived as spyware in the eyes of the end user. Many of these programs are loaded on the computers of end users after the end user has agreed to the terms of a license presented in a click-through interface.

This paper analyzes whether it might be possible to reduce the volume of unwanted software loaded on end users' computers by applying contract law doctrine more strictly. Unwanted programs are often bundled with programs that the end user wants, …

General Public License 3.0: Hacking The Free Software Movement's Constitution, Robert W. Gomulkiewicz

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The General Public License (GPL) enshrines a software hacker’s freedom to use code in important ways. Hackers often refer to the GPL as the free software movement’s “constitution.” Richard Stallman, founder of the Free Software Foundation (FSF) wrote the most recent version of the GPL, version 2.0, back in 1991. For a constitution, a fourteen-year-old document is young, but for a license, it is quite old. The revision process is finally underway, led by Stallman and Eben Moglen, FSF’s general counsel.

The release of GPL version 3.0 will be momentous for many reasons, but one reason stands out: The GPL …

General Public License 3.0: Hacking The Free Software Movement's Constitution, Robert W. Gomulkiewicz

Articles

The General Public License (GPL) enshrines a softwarehacker's' freedom to use code in important ways. Hackers oftenrefer to the GPL as the free software movement's "constitution."Richard Stallman, founder of the Free Software Foundation (FSF), wrote the most recent version of the GPL, version 2.0, back in 1991. For a constitution, a fourteen-year-old document is young, but for a license, it is quite old. The revision process is finally underway, led by Stallman and Eben Moglen, FSF's general counsel.

The release of GPL version 3.0 will be momentous for many reasons, but one reason stands out: The GPL governs much of …

Getting Serious About User-Friendly Mass Market Licensing For Software, Robert W. Gomulkiewicz

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Software publishers use standard form end user licenses (“EULAs”) in mass market transactions on a regular basis. Most software users find EULAs perplexing and generally ignore them. Scholars, however, have focused on them intently. In the past twenty years over a hundred scholarly articles have been written on the subject. Most of these articles criticize EULAs and argue that courts should not enforce them. In their critique of EULAs, some scholars examine the adequacy of the offer, acceptance, and consideration. Others discuss EULAs as part of the troublesome issue of standard form contracting, and whether standard forms, on balance, harm …

Entrepreneurial Open Source Software Hackers: Mysql And Its Dual Licensing, Robert W. Gomulkiewicz

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Hackers often quibble about commercializing software, yet most willreadily sell their programming services. Richard Stallman, the father of free software, has always recognized that hackers have a right to make money. Aside from selling programming services, however, Stallman's disciples seem to frown upon commercializing software. Other hackers, labeling themselves "open source" developers, have warmed to the possibility that free software may be profitable.

This article describes one of the most promising business models for hackers, called "dual licensing." In this model, hackers offer the same code under two different licenses: a commercial license and an open source license. Licensees who …

De-Bugging Open Source Software Licensing, Robert W. Gomulkiewicz

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Home computer users and businesses often rely on software developed by unconventional programmers known as "hackers." Hackers claim that the code they develop is superior in quality to the code developed by commercial software firms because hackers freely share the code they develop. This code sharing enables a multitude of programmers from around the world to rapidly find and fix bugs. The legal mechanism that enables hackers to deploy this worldwide team of de-buggers is a license agreement or, to be more precise,an assortment of license agreements known as "open source" licenses.

Although open source software developers may regularly fix …

Legal Protection For Software: Still A Work In Progress, Robert W. Gomulkiewicz

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Software began as geekware-something written by programmers for programmers. Now, software is a business and consumer staple. Cryptic character-based user interfaces have given way to friendly graphical ones; multi-media is everywhere; people own multiple computers of varying sizes; computers are connected to one another across the globe; email and instant electronic messages have replaced letters and telephone calls for many people.

The issue of whether the law should protect software seems quaint to us now. Over the past twenty-five years, legislatures and courts have concluded that copyright, patent, trade secret, trademark, and contract law all can be used to protect …

Should It Be A Free For All? The Challenge Of Extending Trade Dress Protection To The Look And Feel Of Web Sites, Xuan-Thao Nguyen

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In the e-commerce world, a company's web site becomes the primary communication center with the customer. The web site is where the company displays products, presents marketing materials, and provides sales and post-sales support. Increasingly, companies are spending valuable resources to build and maintain their web sites. With the rapid change in web technology, many web sites now feature more than just ordinary text. Color, clipart, graphics, designs, animations, and sounds are now part of the overall appearance of web sites. Yet copying an image from a web site is just one click away. What protection is available to the …

Blame It On The Cybersquatters: How Congress Partially Ends The Circus Among The Circuits With The Anticybersquatting Consumer Protection Act?, Xuan-Thao Nguyen

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Congress blamed the cybersquatters for the need to pass another trademark cyberlaw. Congress enacted the Anticybersquatting Consumer Protection Act (“ACPA”) on November 29, 1999. The ACPA aimed to protect consumers and businesses, to promote the growth of electronic commerce, and to provide clarity in the law for trademark owners by prohibiting cybersquatting activities on the Internet. Prior to the enactment of the ACPA, the Federal Trademark Dilution Act (“FTDA”), which was passed by Congress in 1995 and became effective on January 16, 1996, was hailed as a powerful tool to combat cybersquatters on the Internet. That presumed powerful tool turned …

How Copyleft Uses License Rights To Succeed In The Open Source Software Revolution And The Implications For Article 2b, Robert W. Gomulkiewicz

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The computer industry moves from one “next great thing” to the next “next great thing” with amazing speed. Graphical user interface, object-oriented programming, client-server computing, multimedia software, Java applets, the network computer, and the Internet have all been hailed as technological breakthroughs at one time or another. Some of these promising developments fizzle, some evolve and succeed slowly, and some revolutionize the industry overnight.

Led by a group of software developers known as “hackers,” the latest “next great thing” is “open source” software. The word “source” refers to software in source code form. Source code is the collection of instructions …

The Implied Warranty Of Merchantability In Software Contracts: A Warranty No One Dares To Give And How To Change That, Robert W. Gomulkiewicz

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A disclaimer of ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITING THE IMPLIED WARRANTY OF MERCHANTABILITY, greets virtually everyone who prepares to use a computer software product. Software publishers disclaim the implied warranty of merchantability because they do not know what they might be promising if they give it. Though the disclaimer is routine, software publishers have little interest in needlessly eroding confidence in the quality of their products by conspicuously disclaiming a warranty with which their products may well comply. Disclaimers feed suspicion, voiced by industry critics, that software publishers care little about software quality or standing behind their products. Nonetheless, …

A Brief Defense Of Mass Market Software License Agreements, Robert W. Gomulkiewicz

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In the rapidly changing world of personal computer software, the end user license agreement ("EULA") has endured. The EULA is a familiar component of most personal computer software transactions. Many commentators, however, have maligned the practice of standard form software licensing. A survey of the literature on the subject might lead one to conclude that there are only critics--and no proponents--of EULAs.

Despite the din of criticism, EULAs continue to be widely usedby almost every mass-market software publisher, even though the cost of doing so is significant. This Article explains the value of EULAs for both software publishers and users, …