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Articles 91 - 116 of 116
Full-Text Articles in Computer Law
When Invisible Electronic Ink Leaves Red Faces: Tactical, Legal And Ethical Consequences Of The Failure To Remove Metadata, Jembaa Cole
Washington Journal of Law, Technology & Arts
There have been several instances in which seemingly innocuous metadata has wreaked professional and political havoc. Every electronic document has an invisible set of identifying data, its metadata. This Article explores consequences of ignoring metadata and suggests effective ways to tame metadata.
Contracting Spyware By Contract, Jane K. Winn
Contracting Spyware By Contract, Jane K. Winn
Articles
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
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 …
General Public License 3.0: Hacking The Free Software Movement's Constitution, Robert W. Gomulkiewicz
General Public License 3.0: Hacking The Free Software Movement's Constitution, Robert W. Gomulkiewicz
Articles
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 …
Oops! The Legal Consequences Of And Solutions To Online Pricing Errors, Benjamin Groebner
Oops! The Legal Consequences Of And Solutions To Online Pricing Errors, Benjamin Groebner
Washington Journal of Law, Technology & Arts
How can businesses conducting sales over the Internet protect themselves from the inevitability of pricing errors? Unlike the brick and mortar retailers’ ability to catch a pricing error quickly, thousands of orders can be placed with online retailers before they detect the problem. When pricing errors do occur and contracts are formed, merchants are forced to choose between absorbing the resulting financial loss as an investment in goodwill or trying to invalidate the contracts under the doctrine of unilateral mistake. To avoid binding contracts with customers at erroneous prices, online retailers should employ protective methods of contract formation that help …
Getting Serious About User-Friendly Mass Market Licensing For Software, Robert W. Gomulkiewicz
Getting Serious About User-Friendly Mass Market Licensing For Software, Robert W. Gomulkiewicz
Articles
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
Entrepreneurial Open Source Software Hackers: Mysql And Its Dual Licensing, Robert W. Gomulkiewicz
Articles
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 …
Is Assent Still A Prerequisite For Contract Formation In Today's E-Conomy?, Melissa Robertson
Is Assent Still A Prerequisite For Contract Formation In Today's E-Conomy?, Melissa Robertson
Washington Law Review
A browse-wrap agreement is an online contract that governs the use of a Web site but does not require users of the site to affirmatively agree to the terms and conditions of the contract. The terms of a browse-wrap agreement are accessible to the user only by clicking on an Internet link, often inconspicuously located at the bottom of a Web page, marked "Terms and Conditions." Browse-wrap agreements purport to bind users to these terms and conditions when the user merely performs a function of the Web site, such as submitting a query on the site's database or downloading software. …
Forum-Selection Clauses In Consumer Clickwrap And Browsewrap Agreements And The "Reasonably Communicated" Test, Kaustuv M. Das
Forum-Selection Clauses In Consumer Clickwrap And Browsewrap Agreements And The "Reasonably Communicated" Test, Kaustuv M. Das
Washington Law Review
Although forum-selection clauses in clickwrap and browsewrap agreements have been addressed in only a limited number of decisions, they are likely to become increasingly relevant with the growth of e-commerce. Courts that have enforced forum-selection clauses in click-wrap and browsewrap agreements have often done so without determining whether the consumer received notice of the clause. When courts have addressed notice, they have not used any uniform standard for determining adequacy of notice. Forum-selection clauses in dlickwrap and browsewrap agreements further the policies underlying the Supreme Court's decisions in MIS Bremen v. Zapata Off-Shore Co. and Carnival Cruise Lines, Inc. v. …
De-Bugging Open Source Software Licensing, Robert W. Gomulkiewicz
De-Bugging Open Source Software Licensing, Robert W. Gomulkiewicz
Articles
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
Legal Protection For Software: Still A Work In Progress, Robert W. Gomulkiewicz
Articles
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
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
Articles
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
Blame It On The Cybersquatters: How Congress Partially Ends The Circus Among The Circuits With The Anticybersquatting Consumer Protection Act?, Xuan-Thao Nguyen
Articles
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 …
In Rem Jurisdiction In Cyberspace, Thomas R. Lee
In Rem Jurisdiction In Cyberspace, Thomas R. Lee
Washington Law Review
"Cyberpirates" incorporating variations on famous trademarks in Internet domain names often attempt to insulate themselves from service of process by providing false and incomplete information in registration materials. Holders of prominent trademarks are often left without an effective remedy because of the logistical difficulty of identifying cyberpirates and personally serving a multitude of complaints in far-flung jurisdictions. This Article examines a potential solution to the problem, whereby the trademark holder files an in rem action against the Internet domain names themselves on the theory that domain names incorporating their famous trademarks violate the Lanham Act and are subject to cancellation …
Washington's "Spam-Killing" Statute: Does It Slaughter Privacy In The Process?, Steven Miller
Washington's "Spam-Killing" Statute: Does It Slaughter Privacy In The Process?, Steven Miller
Washington Law Review
In 1998, the Washington Legislature passed an historic law prohibiting the sending of commercial e-mail messages containing false or misleading information in the subject line or header. The law also permits companies that provide Internet services, known as Internet Service Providers (ISPs), to block the transmission or receipt of messages reasonably believed to violate the statute. However, the law fails to specify the permissible activities that an ISP may pursue to form such a reasonable belief. It thereby encourages a variety of intrusive ISP activities, such as message screening. Existing statutory and constitutional privacy law provides the only shield for …
How Copyleft Uses License Rights To Succeed In The Open Source Software Revolution And The Implications For Article 2b, Robert W. Gomulkiewicz
How Copyleft Uses License Rights To Succeed In The Open Source Software Revolution And The Implications For Article 2b, Robert W. Gomulkiewicz
Articles
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 Reality Of Bytes: Regulating Economic Activity In The Age Of The Internet, Michael A. Geist
The Reality Of Bytes: Regulating Economic Activity In The Age Of The Internet, Michael A. Geist
Washington Law Review
By utilizing both a backward and forward looking perspective, this Article develops a model conducive to better understand the Internet's legal implications on economic regulation. The model is also intended to help legislators and regulators adapt their legal and regulatory frameworks to the Internet. This Article canvasses and builds upon the burgeoning development of Internet law. It suggests that the Internet's impact on economic regulation is best understood by classifying its effects into four categories, each of which requires a different regulatory response. It also considers potential solutions for adapting economic regulation to the Internet. This Article concludes that no …
Malaysia's "Computer Crimes Act 1997" Gets Tough On Cybercrime But Fails To Advance The Development Of Cyberlaws, Donna L. Beatty
Malaysia's "Computer Crimes Act 1997" Gets Tough On Cybercrime But Fails To Advance The Development Of Cyberlaws, Donna L. Beatty
Washington International Law Journal
Malaysia is in the process of developing the Multimedia Super Corridor ("MSC"), a high-tech zone sometimes called "the Silicon Valley of the East." As a way of attracting investors to the MSC, Malaysia is adopting business-friendly policies and comprehensive "cyberlaws" designed to assure MSC participants that they and their technology will be protected. One of Malaysia's many goals is to be a leader in the development of cyberlaws. However, the Computer Crimes Act 1997 is too flawed to place Malaysia in that role. The Computer Crimes Act is designed to prevent computer crimes such as hacking, virus planting and the …
The Implied Warranty Of Merchantability In Software Contracts: A Warranty No One Dares To Give And How To Change That, Robert W. Gomulkiewicz
The Implied Warranty Of Merchantability In Software Contracts: A Warranty No One Dares To Give And How To Change That, Robert W. Gomulkiewicz
Articles
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
A Brief Defense Of Mass Market Software License Agreements, Robert W. Gomulkiewicz
Articles
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, …
Taking A Byte Out Of Crime: E-Mail Harassment And The Inefficacy Of Existing Law, Gene Barton
Taking A Byte Out Of Crime: E-Mail Harassment And The Inefficacy Of Existing Law, Gene Barton
Washington Law Review
Computer abuse is advancing as quickly as computer technology. The laws, however, have yet to address computer harassment to a significant degree. Existing law is insufficient, and current efforts fall short of what is needed. This Comment identifies the need for new law, examines the shortcomings of what has been tried to date, and proposes general concepts for a comprehensive computer harassment law. This Comment concludes with a proposal for specific legislation for the state of Washington.
Software Copyright Infringement Claims After Mai Systems V. Peak Computer, Trinnie Arriola
Software Copyright Infringement Claims After Mai Systems V. Peak Computer, Trinnie Arriola
Washington Law Review
In MAI Systems Corp. v. Peak Computer, Inc. the Ninth Circuit Court of Appeals held that Peak committed copyright infringement by running MAI operating system software incidental to Peak's repair of the computer system. The court rejected Peak's section 117 defense under the Copyright Act because it refused to recognize a licensee of computer software as an "owner" of a copy of software. This Note argues that the decision contravenes both the substance and principles of federal copyright law, and unnecessarily harms computer owners. It suggests a two-tiered analysis that courts should follow when evaluating copyright infringement claims involving software …
Recent Developments In Copyright Protection For Computer Software In The United States And Japan, Yutaka Nakamura
Recent Developments In Copyright Protection For Computer Software In The United States And Japan, Yutaka Nakamura
Washington International Law Journal
Many current legal issues pertaining to copyright of computer software involve defining the scope of protection of non-literal expression, such as "user interface" and "look and feel," in contrast to literal expression, such as "source code," to which ownership may be more clearly attributed. Superficially, it appears that the case law pertaining to non-literal expression is developing differently in Japan and the United States. This comment demonstrates that, however, while Japanese and U.S. courts have been applying formally different analytical criteria, the decisions of both have been similar in seeking equity-oriented solutions.
A Square Peg In A Round Hole: The Proper Substantial Similarity Test For Nonliteral Aspects Of Computer Programs, David A. Loew
A Square Peg In A Round Hole: The Proper Substantial Similarity Test For Nonliteral Aspects Of Computer Programs, David A. Loew
Washington Law Review
Since the Third Circuit's decision in Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc. expanded copyright protection to include the nonliteral aspects of computer programs, courts have struggled to find a way to properly determine substantial similarity between programs, a necessary element of copyright infringement. In the Third Circuit, courts dissect competing programs and compare them in a one-step procedure. The Ninth Circuit uses a two-part process to objectively, and then subjectively, compare program elements. In Computer Associates International, Inc. v. Altai, Inc. the Second Circuit recommended a three-part substantial similarity test to filter out unprotectable elements and compare the …
The Case Against Copyright Protection For Programmable Logic Devices, Stephen C. Bishop
The Case Against Copyright Protection For Programmable Logic Devices, Stephen C. Bishop
Washington Law Review
Several commentators have argued that copyright protection should extend to protect logic equations incorporated in a type of semiconductor chip called a programmable logic device (PLD). They reach this result by analogizing to the storage of computer software in memory chips, an embodiment that is currently protected under the copyright laws. This Comment analyzes logic equations incorporated in a PLD with respect to the copyright statute, utilitarian device doctrine, and the legislative history of the Semiconductor Chip Protection Act. It concludes that copyright protection should not extend to protect the logic equations incorporated in a PLD.
Patenting Inventions That Embody Computer Programs Held As Trade Secrets—White Consolidated Industries V. Vega Servo-Control, 713 F.2d 788 (Fed. Cir. 1983), Ellen Lauver Weber
Patenting Inventions That Embody Computer Programs Held As Trade Secrets—White Consolidated Industries V. Vega Servo-Control, 713 F.2d 788 (Fed. Cir. 1983), Ellen Lauver Weber
Washington Law Review
An inventor develops a numerical control system that allows a computer program to control the complex operation of machine tools such as drill bits. One of the elements in the numerical control system is a trade secret available only from the inventor. The inventor would like to patent the system as a whole, but an inventor must generally disclose how the invention works in order to obtain a patent. Must this inventor completely disclose how the trade secret works in order to obtain a patent on the whole system? The Federal Circuit Court of Appeals said "yes" in White Consolidated …