Computer Law Commons^™

The Narrowed Experimental Use Exception To Patent Infringement And Its Application To Patented Computer Software, Robert A. Migliorini

Computer Law Review and Technology Journal

The common law experimental use exception has existed since the early I800s as a defense to patent infringement where the use of the patented invention by the alleged infringer is for the mere purpose of intellectual curiosity, amusement or philosophical experimentation with no underlying business or commercial motive, or to confirm that an invention works the way it is disclosed in the patent specification. In the last six years, the U.S. Court of Appeals for the Federal Circuit has further defined and narrowed the scope of the exception by making not for profit institutions liable for patent infringement when using …

Infringement Twice Removed: Inducement Of Patent Infringement For Overseas Manufacture Of Infringing Products Imported By Another, Nicholas Oros

Computer Law Review and Technology Journal

Manufacturing a device in another country that infringes a United States patent is generally not a violation of United States patent law. However, if the device is then imported into the United States by another, the manufacturer may or may not be liable for inducement of patent infringement. This article explores inducement of infringement liability of foreign manufactures. First, inducement of infringement is defined and the sparse related case law is discussed. Then, a number of possible rules that courts could adopt to determine when foreign manufacturers should be liable are explored. The article concludes with a proposal that courts …

Applying The Lessons Of Re-Examination To Strengthen Patent Post-Grant Opposition, Eric B. Chen

Computer Law Review and Technology Journal

Due to the exceedingly high cost of challenging patent validity in U.S. district courts, a lower cost administrative option has garnered considerable interest. A recent evaluation found that 46% of litigated patents are held invalid. However, because about 95% of patents issued in the U.S. are never challenged due to their limited commercial value, and since the resources of the United States Patent and Trademark Office (USPTO) are limited, the USPTO's initial patent validity examinations are not very detailed It is more efficient for the USPTO to wait and make detailed validity decisions only in those select situations where patent …

United States V. Councilman: An Appropriate Expansion Of Internet Privacy Rights?, Robert Roll

Computer Law Review and Technology Journal

The technological advances of the last quarter century that permitted the explosion of the Internet simultaneously generated significant abuses of this technology. Congress and the courts responded to each innovation by creating what has become a broad patchwork of remedies intended to deter Internet crime. Though e-mail does not enjoy the same expectation of privacy as other mediums of communication, these remedies overlap to provide recourse in the event of unauthorized access or viewing. To date, the Electronic Communications Privacy Act ("ECPA") represents one of the most effective of these deterrents by imposing civil and criminal penalties on those who …

Microsoft Liable For Patent Infringement Of Software Installed Overseas, Ari Rafilson

Computer Law Review and Technology Journal

In a case that is sure to have major repercussions for the domestic software industry, the Federal Circuit Court held Microsoft liable for damages arising from foreign-made copies of Windows software containing patent- infringing code.1 The issue in AT&T Corp. v. Microsoft Corp. was whether a software manufacturer could be held liable for patent infringement when it exported software from the United States and foreign computer manufacturers subsequently copied and installed the software onto foreign computers. Under 35 U.S.C. § 271(f), liability only arises when components of a patent-infringing invention are supplied from the United States to foreign countries. Microsoft …

Electronic Case Filing: What Happens When Counsel Does Not Receive Email Notices?, Elisabeth A. Wilson

Computer Law Review and Technology Journal

Courts across the United States are moving toward implementing Electronic Case Filing ("ECF") procedures, with many courts making ECF mandatory in most cases. With this new technology gaining popularity, novel issues are emerging as the difficulties and challenges with the procedures reveal themselves. Familiar disputes over notice and presumption of delivery are cast in the new light of computer glitches and technological snags. American Boat Co. v. Unknown Sunken Barge is one of the first electronically filed cases to surface at the federal appellate level with such issues. The Eighth Circuit articulates important factors to consider when analyzing whether a …

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

New Rules For Electronic Discovery, So Now What?: Daubert's Impact On Determining What Is Not Reasonably Accessible, Neal H. Lewis

Computer Law Review and Technology Journal

This article addresses the effects of technological growth on the development of electronic discovery as suggested by the latest amendments to the Federal Rules of Civil Procedure. Part I discusses American efforts to facilitate technological growth, underscoring the United States' embrace of technological innovation and recognizing the legal system's capability of handling complex issues associated with emerging technology. Part II outlines a brief history of the Federal Rules of Civil Procedure, identifying flexibility as the hallmark of American procedural jurisprudence and emphasizing the role that discovery abuse concerns have played in the rule modifications. It then touches on the recent …

Employees' Use Of Employer Computers To Communicate With Their Own Attorneys And The Attorney-Client Privilege, John Gergacz

Computer Law Review and Technology Journal

This article will analyze the balance between privilege and confidentiality in the electronic age. Three scenarios will be discussed: first, whether the mere use of employer-technology affects the employee's privilege claim; second, how an employer's no-personal-use policy may defeat an employee's confidentiality expectation and undermine the privilege claim; and third, whether encrypting those messages nullifies the effect of the employer's policy.

Defining Abusive Software To Protect Computer Users From The Threat Of Spyware, Chad A. Kirby

Computer Law Review and Technology Journal

"Spyware" has become a major problem for computer users over the past few years. In response, quite a few states have enacted statutes intended to control the problem. But most of the existing legislation has taken the wrong approach to the problem of defining spyware. Generally speaking, most legislative definitions of spyware either have been too technology-specific to adapt to future developments, or have swept too broadly. Additionally, many legislative definitions of spyware have focused too little on protecting consumers. This article argues that any effective regulatory definition must have three characteristics: 1) it must protect the user's control over …

The World Summit On The Information Society And The Future Of Internet Governance, Travis D. Shahan

Computer Law Review and Technology Journal

The final meeting of the World Summit on the Information Society (WSIS), which concluded in November 2005, was built up to be a showdown over the future of Internet governance. When the dust cleared, the issue of Internet governance was still far from settled. For the most part, the delegates to the WSIS agreed to maintain the status quo for the time being, but they also agreed to a mechanism for continuing the Internet governance debate in the future. This paper will analyze the most notable agreements of the WSIS and their effects on the future of Internet governance.

Polygraph In Trade Secret Litigation: Overcoming Misconceptions And Paving The Way For Admissibility, Elisabeth A. Wilson

Computer Law Review and Technology Journal

Ponder for a moment what you know about polygraph. Polygraph is sometimes referred to as a "lie detector" test. You may have seen a polygraph exam on television or a movie, but most people have a very limited understanding of what a polygraph examination really is. In fact, most depictions of polygraph seen in popular culture are overwhelmingly misleading and inaccurate. Likewise, the legal community's understanding of polygraph and how it can be utilized is scant, at best.

Courts have been divided for years over what role polygraph should play in litigation and have struggled with questions of admissibility. Confusion …

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

Financial Innovation Patents: The Future Of The Futures Markets, Or Old Wine In New Bottles?, John Fazzio

Computer Law Review and Technology Journal

Electronic exchanges and electronic trading are the future of the futures industry. Since the landmark case State Street Bank & Trust Co. v. Signature Financial Group, Inc., the volume of trading on electronic exchanges has grown at ten times the pace of open outcry trading.4 Institutions and brokerage houses have rushed to the patent office to protect business methods, and an industry of Independent Software Providers ("ISPs") has sprung up to meet the demand for new trading technologies. These developments have reshaped the commodity and futures landscape. In response, the Commodity Futures Trading Commission ("CFTC") passed regulations regarding order …

North American Anti-Circumvention: Implementation Of The Wipo Internet Treaties In The United States, Mexico And Canada, Heather A. Sapp

Computer Law Review and Technology Journal

The speed and ease with which digital formats of copyrighted works can be copied and exchanged on the Internet have given rise to "legal developments that once might have seemed unlikely or unthinkable." Although the digital era was hailed by many for the potential of providing a global marketplace for copyrighted works, many copyright holders were concerned about the ease of digital piracy. In some senses, despite the promise of new markets and increases in efficiency, the digital era signaled a copyright holder's nightmare. Works could be immediately and perfectly copied and then immediately and perfectly distributed. As a result, …

Liability Of Isps: Immunity From Liability Under The Digital Millennium Copyright Act And The Communications Decency Act, Cyrus S. J. Manekshaw

Computer Law Review and Technology Journal

The Internet has so completely permeated our lives in the past ten years that often we do not fully realize how truly revolutionary this technology is or how many legal issues and problems it can present. At its most basic level, the Internet is a system of worldwide computer networks that transfer data. To the ordinary user, the Internet is an all-purpose essential tool used to do everything from checking e-mail and reading the news to playing games and sharing music, pictures, and ideas. The power to share ideas and communicate with people all around the globe is the Internet's …

The Speed Of Normal: Conflicts, Competency, And Confidentiality In The Digital Age, David Hricik

Computer Law Review and Technology Journal

Digitalization has increased the speed of communications in all areas, including law. Although in many ways technology has made practice easier, quicker, and more efficient, the dawn of the digital age has increased the need for lawyers to focus on legal ethics. As always, lawyers must be concerned about confidentiality, conflicts, and competency. Those fundamentals remain unchanged. However, the vast increases in storage capacity, the lightning-quick speed of communication, and the ability to allow access to data over the Internet have each made it more important for lawyers to focus on the impact of technology on these core principles of …

You Can't Say That!: Enjoining Publication Of Trade Secrets Despite The First Amendment, Brooks W. Taylor

Computer Law Review and Technology Journal

Enjoining publication of trade secrets is certainly restraint of speech, but is it invalid under the First Amendment to the United States Constitution? Different courts have answered that question in different ways. Some courts have applied strict scrutiny and found preliminary injunctions against the publication of trade secrets to be unconstitutional prior restraint of free speech. Most recently, the California Supreme Court, applying intermediate scrutiny, found such an injunction against the re-publication of computer code on the Internet to be a content-neutral restraint not barred by the prior restraint doctrine.

For a number of reasons, corporations are relying increasingly on …

The Illegal Art Exhibit: Art Or Exploitation? A Look At The Fair Use Doctrine In Relation To Corporate Degenerate Art, Kimball Tyson

Computer Law Review and Technology Journal

A gas mask in the shape of Mickey Mouse's head; fake stamps with photographs of Viagra and Prozac pills that actually duped the postal system; Pez candy dispensers with dispenser heads of dead rappers such as Biggie Smalls, Tupac Shakur, and Eazy-E; a recreation of a portrait of Mao using U.S. currency; the use of the Beatle's Meet the Beatles LP cover by a musical group entitled the Residents; a series of violent, disturbing drawings featuring famous cartoon characters such as Mickey Mouse, Goofy, Barney from the Flintstones, and Bert from Bert and Ernie being hung from nooses or sprawled …

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

Market Reaction To Business Method Patents: An Empirical Analysis, Charles Holoubek, Timothy M. Shaughnessy

Computer Law Review and Technology Journal

Patents on methods of conducting business have received abundant press since the recent decisions in State Street Bank & Trust Co. v. Signature Financial Group, Inc. and AT&T Corp. v. Excel Communications, Inc. Indeed, the number of patent applications categorized as Business Method Patents ("BMPs") increased from 165 in 1995 to over 7,800 in 2000, more than a 47-fold jump in just five years. In light of State Street's wide-reaching ramifications, both the court's legal reasoning for and the policy implications of allowing the United States Patent and Trade Office ("USPTO") to extend patent rights to business methods …

Trips: Ten Years Of Disputes At The Wto, Sue Ann Mota

Computer Law Review and Technology Journal

"The TRIPS Agreement, which came into effect on 1 January 1995, is to date the most comprehensive multilateral agreement on intellectual property."

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), part of the World Trade Organization (WTO) Agreement, was enacted to reduce impediments to global trade, to promote effective and adequate protection of intellectual property rights, and to ensure that enforcement measures and procedures don't become barriers to trade. To resolve intellectual property and other disputes among member nations, the dispute resolution system is a central element in providing security and predictability, and preserves the rights and obligations …

Sweating In Europe : The European Database Directive, Amar A. Hasan

Computer Law Review and Technology Journal

The United States Supreme Court rejected the "sweat of the brow" doctrine and copyright or alternative methods are inadequate for protecting non-creative databases. The European Database Directive protects "substantial investment" in a database regardless of whether copyright protection is available. However, by incorporating the "spin-off' doctrine, the Directive provides only limited protection for "sole-source" databases, the primary market of the database industry. Also, the ECJ has made proving infringement more difficult by expanding its meaning yet simultaneously narrowing its scope and leaving ambiguities. Thus, although European database owners may technically have more protection, many of them, especially providers of "sole-source" …

The Limitations On Police Regarding Gps Tracking Devices: A Necessary Hindrance?, Tenison Craddock

Computer Law Review and Technology Journal

Article one, Section seven of the Washington Constitution states "no person shall be disturbed in his private affairs, or his home invaded, without authority of law." This section provides greater privacy protection than the United States Constitution. "Examination of the constitutional history of this section reveals that the State Constitutional Convention rejected the language of the federal constitution's Fourth Amendment; instead, the Convention adopted the language. .. to intentionally provide greater protection of individual rights." The problem arises when privacy comes face to face with technological advances, such as Global Positioning System ("GPS") devices. GPS units were first built for …

In Re World Auxiliary Power Co., Adam Moore

Computer Law Review and Technology Journal

The filing of unregistered copyrights as security interests pursuant to either a state's UCC filing system or pursuant to the Federal Copyright Act is not the most glamorous of issues. However, it is a very practical issue for those involved in secured transaction deals and, when stepping back, offers a pressing look at some of the important limitations and inadequacies of the Federal Copyright Act. In re World Auxiliary Power Co. sets the stage for these issues. The Ninth Circuit, in this case, held that because the Federal Copyright Act did not provide for a scheme to record unregistered …

Ninth Circuit Upholds Injunction Against Jailhouse Webcams, Rob Sayles

Computer Law Review and Technology Journal

Demery v. Arpaio is a 2004 case that deals with whether the use of world-wide cameras ("webcams") to stream live images of jailed, pretrial detainees over the Internet constitutes punishment prior to adjudication of guilt in violation of the Due Process Clause of the Fourteenth Amendment. A divided Ninth Circuit affirmed the district court's ruling that the use of the webcams constituted punishment and was a violation of the Due Process Clause. While the appellate court properly ruled that the use of the webcams amounted to punishment, the majority's analysis of the issue falls short.

Ninth Circuit Holds That Distributors Of File-Sharing Software Are Not Liable For Their Users' Copyright Infringement Metro-Goldwyn-Mayer, Inc. V. Grokster, Ltd., Suzanne Sprague-Trammell

Computer Law Review and Technology Journal

In 1984, the U.S. Supreme Court dealt a major blow to television and movie studios in their fight against creeping copyright infringement. Sony Corp. of America. v. Universal City Studios, Inc. (Sony-Betamax) declined to hold the Sony Corporation liable for the copyright violations its consumers committed by using the new Betamax video tape recorder (VTR) to build immense libraries of broadcast television programs without permission from the programs' copyright holders. Taking a nod from patent law, the Court classified the VTR as a "staple article of commerce," effectively excusing its manufacturer from secondary copyright infringement because the recorder …

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Computer Law Review and Technology Journal

No abstract provided.

Contributory And Vicarious Copyright Infringement As Applied To Auctions, Flea Markets, And Swap Meets: How Fonovisa And Napster Have Set The Standard, Laura E. Hancock

Computer Law Review and Technology Journal

Merriam-Webster's Dictionary defines a flea market as an "open-air market for secondhand articles and antiques." Although its origin is nearly impossible to trace, it is commonly believed that the flea market first appeared during the 1960s, in Paris, France. The term itself is translated from the French phrase, marchi aux puces.

Generally, a flea market has been described as a venue renting "space to anyone [offering for sale to the public] merchandise, products, items, services and all other legal needs of the buying public." Individuals renting space and selling within these venues are known as vendors. Flea markets are truly …