Computer Law Commons^™

The Chinese Approach To Electronic Transactions Legislation, Zhang Chu, Lingfei Lei

Computer Law Review and Technology Journal

Ecclesiastes reminds us that there is nothing new under the sun, and this may be equally true when it comes to electronic transactions. In the electronic world, agreements are still embodied in contracts, contracts are still entered into when two parties reach an enforceable agreement on terms, and objective evidence still determines whether an agreement has been reached. Fraud and piracy are no less illegal because they happen online. In other words, laws governing the physical world are also relevant in the virtual world. Nevertheless, despite all the similarities, there may still be some differences in form, and there are …

Site-Specific Art Parks On Moral Ground: Distilling Old Whine In New Battles Over The Visual Artists Rights Act, Carrie Jones

Computer Law Review and Technology Journal

Having passed by unanimous vote at the Second Continental Congress, the new Constitution duly declared that "Congress shall have the power [t]o promote the Progress of Science and the useful Arts, by securing for limited Times to Authors rt]he exclusive Right to their respective Writings and Discoveries." Pursuant to that power, Congress enacted the Nation's first copyright law in 1790, intending to promote the artistic progress through a grant of exclusive monopoly for a limited time to the authors of new works. Since then, the United States has successfully urged invention and creation through the full commitment to a comprehensive …

Internet Domain Name Disputes: Working Toward A Global Solution, Sue Ann Mota

Computer Law Review and Technology Journal

The Internet is essential to the growth of the global economy and the Domain Name System is essential to accessing sites on the Internet. Over 170 registrars are accredited to issue top-level domains, such as .com, .net, and .org. Frequently, however, disputes arise over who should own a particular domain name. The Internet Corporation for Assigned Names and Numbers (ICANN) has adopted a Uniform Domain Name Dispute Resolution Policy (UDRP) to address these disputes. ICANN has approved four dispute resolution service providers that are currently handling domain name disputes. This article will examine the success rate of complaints, the elements …

When The Americans With Disabilities Act Goes Online: Application Of The Ada To The Internet And The World Wide Web, Steven Mendelsohn, Martin Gould

Computer Law Review and Technology Journal

Over the past decade, the emergence of electronic communication, Internet technology, and the World Wide Web has dramatically altered the lifestyles of many Americans and has affected the lives of us all. As a result of these technologies, society has experienced great transformation and has had to confront new opportunities and challenges and make many adjustments to accommodate these new developments.

American law has struggled to stay current with the new technology. In attempting to stay current and adapt to the new technology, the law has followed two lines of development. First, laws are passed to deal with new issues …

Thumbs Up For Biometric Authentication!, Gwen "Wendy" Kennedy

Computer Law Review and Technology Journal

For years, biometric authentication devices, such as palm print devices, retinal scanners and facial recognition technology, were things only seen in science fiction movies. But, in recent years, fiction and reality have been on a collision course. Government laboratories and defense installations have utilized these biometric authentication devices for decades, but commercial applications did not exist until more recently. This delay was caused in part by the high cost of these devices and the legal uncertainty surrounding their use in the commercial realm. However, these concerns have vanished and due to the growing instances of identity theft, the timing for …

The Decss Trade Secrets Case: Dvd Copy Control Association, Inc. V. Bunner, Brooks W. Taylor

Computer Law Review and Technology Journal

Bad facts make bad law. In DVD Copy Control Association, Inc. v. Bunner, the California Supreme Court addressed a sympathetic plaintiff suing a group of hackers for ignoring the terms of a click wrap license and reverse engineering trade secrets from a computer program. To ensure that justice prevailed, the court held that a preliminary injunction against re-posting computer code containing those purported trade secrets was not a prior restraint on speech, but rather was content-neutral. In the trial court, despite the fait accompli of the computer code's Internet release to the hacker community, the court implausibly found that …

Research Tax Credit : Statutory Construction, Regulatory Interpretation And Policy Incoherence, David L. Cameron

Computer Law Review and Technology Journal

Section 41 of the Internal Revenue Code establishes a research tax credit in connection with "qualified research expenses" and "basic research payments," frequently referred to as the incremental research credit and the basic research credit, respectively. The incremental research credit is equal to 20 percent of the qualified research expenses for the tax year in excess of a base amount, and the basic research credit is equal to 20 percent of any basic research payments in excess of a base amount. The purpose of the credit is to provide an incentive for increased research activities in the private sector.

The …

Research And Development Deliverables Under Government Contracts, Grants, Cooperative Agreements And Cradas: University Roles, Government Responsibilities And Contractor Rights, Danielle Conway-Jones

Computer Law Review and Technology Journal

More than anything, the United States Government is committed to research and development that will ensure America's position as the leader of nations. Nowhere is this truer than in the development of weapons and weapons systems, for these have, until recently, been the tools of superiority. From the tanks of World Wars I and II, to the guided weapons systems of today, to the unmanned fighting and space exploration vehicles of tomorrow, continued superiority of this nation will depend heavily upon the research and development of new technologies and innovation that must have dual uses for both the military and …

Recent Developments In Digital Copyright-The Internet Music Cases, Herbert J. Hammond, Corey Weinstein

Computer Law Review and Technology Journal

Music sharing on the Internet has been a hotly debated topic in the last five years. Music sharing advocates claim that people should have the right to trade music that they have rightfully purchased. Opponents of this practice argue that swapping songs destroys the music industry and violates copyright law. While this debate has raged and the courts have taken up the issue, the file-swapping phenomenon has brought significant, unanticipated changes to the recording industry and to the ways consumers buy music.

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

[Un]Safe Harbor: No Common Denominator In Privacy Compliance, Steven A. Wells, Mark Courtney, Peter Vogel

Computer Law Review and Technology Journal

Privacy is a social issue that varies depending on the mores of any particular culture. Clearly there have always been personal privacy issues before the advent of the Internet. However, the Internet has provided widespread proliferation of personal data which has dramatically changed the scope of where personal data may be. It was not really until about 1995 that the Internet brought this wide-spread change caused by ubiquitous growth of personal computers, online networks, graphical browsers, and broadband communications. Since it is impossible to accurately predict the ultimate direction of personal privacy on the Internet, governments around the world are …

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

Icann May Be The Only Game In Town, But Marina Del Rey Isn't The Only Town On Earth: Some Thoughts On The So-Called "Uniqueness" Of The Internet, Volker Kitz

Computer Law Review and Technology Journal

"If you want to attach your network to the Internet, but you don't like the Network Solution, Inc.'s ("NSI") policies, for whatever reason, you quickly learn that NSI is the only game in town," said Catherine Simmons- Gill at a Congressional hearing in 1996. One might pose the question, "Why not just go to a different town?" Unfortunately, no other "town" can pride itself on hosting an organization that ultimately presides over the assignment of domain names under the current domain name system. The Internet Corporation for Assigned Names and Numbers ("ICANN"), based in Marina del Rey, is presently in …

Canned Spam: New State And Federal Legislation Attempts To Put A Lid On It, Jordan M. Blanke

Computer Law Review and Technology Journal

No abstract provided.

Jurisdictional Issues In Electronic Commerce Contracts: A Canadian Perspective, Shafik Bhalloo

Computer Law Review and Technology Journal

Governments, the private sector, the media, and academicians have defined electronic commerce ("e-commerce") in a variety ways. Narrowly defined, e-commerce refers to sales or purchases transacted over open or public networks, such as the Internet, independent of whether the payment is made on the network. Employing a broader definition, e-commerce may also include sales and purchases made over closed or private networks, such as electronic data interchange ("EDI") and debit or credit cards.' This article will focus on the narrower definition of e-commerce and, more specifically, business-to-consumer ("B-to-C") transactions rather than business-to-business ("B-to-B") transactions.

In the first part of this …

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

Computer Law Review and Technology Journal

Hackers often quibble about commercializing software, yet most will readily 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 …

Dastar Corp. V. Twentieth Century Fox Film Corp., Carrie Jones

Computer Law Review and Technology Journal

The Trademark Act of 19461 codified select portions of the common law on trademark and unfair competition. Section 43(a) of the Lanham Act, as it is more commonly known, protects consumers and competitors from the "reverse passing off' of one's work as another's. In Dastar v. Twentieth Century Fox Film Corp., the United States Supreme Court recently considered whether section 43(a) prohibits the unattributed copying of works available in the public domain. The Ninth Circuit had found that Fox could bring a claim against Dastar (which had copied and repackaged without attribution a Fox video series) under the Lanham …

Improving The Patent System For The 21st Century: Optimizing The Requirements To Be A Member Of The Patent Bar, Nathan Lewis

Computer Law Review and Technology Journal

As the importance of protecting technology has increased in the past several years, there has been an increase in the demand for patent attorneys and agents. The patent bar operates to limit the number of people that are available to satisfy this demand. Although the patent office has recently updated their procedural requirements for taking the patent bar, the substantive requirements have received little attention to date. This paper analyZes the current requirements in light of their purpose and effect, as well as the international requirements to join the patent bar of other countries. It concludes that the current patent …

Copyright Under Siege: The First Amendment Front, Lackland H. Bloom Jr.

Computer Law Review and Technology Journal

For the past twenty-five years, I have taught courses in both Copyright and Freedom of Speech. Until quite recently, these two tangentially-related subjects have co-existed in peaceful harmony. Over the years, I have traditionally devoted about ten minutes of Copyright class time to the free speech issue and no time at all in Freedom of Speech class to issues of copyright. That was then; the old world has changed. Now, we have collectively become embroiled in what some are calling the "copyright wars", with the First Amendment (specifically, freedom of speech) as one of the central battlegrounds. In 1970, two …

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

Can A Copyright Holder Prevent Reverse Engineering? The Federal Circuit Court Holds That The Federal Copyright Act Does Not Preempt "No Reverse Engineering" Clauses: Bowers V. Baystate Tech. Inc. , Jonathan Wilson

Computer Law Review and Technology Journal

Intellectual property rights exist to protect the fruit of one's intellectual labor. But when an idea is made public, there develops a risk that another might be able to rework the process of creation and diminish the value of the original intellectual labor. This is exactly what happened to Harold L. Bowers. By utilizing the technique of reverse engineering, Baystate Technologies used Bowers' computer program to develop their own CAD software design to compete with Bowers's program. Bowers, however, had placed a "no reverse engineering" clause on his shrink-wrap license. This conflict presented the Federal Circuit Court with the difficult …

Recent Trademark Challenges In Cyberspace And The Growth Of The Initial Interest Confusion And Nominative Fair Use Doctrines, Jeffrey M. Becker, Purvi J. Patel

Computer Law Review and Technology Journal

The relatively recent legal doctrines of "initial interest confusion" and "nominative fair use" have become the dominant buzz words for defining the scope of permissible trademark use on the Internet, especially in the on-line advertising context. The prevalence of recent trademark cases applying these doctrines stems from the difficulty involved in assessing trademark liability in cyberspace, particularly when the trademark is not used as visible expression, but is instead used as an invisible tool, such as a metatag or keyword. For example, in its well-publicized opinion of Brookfield Communications, Inc. v. W. Coast Entm 't Corp., the Ninth Circuit adopted …

Trademark Challenges, John M. Cone

Computer Law Review and Technology Journal

The proponent of a product design trade dress must show that the trade dress is non-functional. In 2001, the Supreme Court considered functionality in the context of a patented, dual-spring mechanism for temporary road signs, which were designed to withstand strong gusts of wind. In reversing the lower court's summary judgment, the Sixth Circuit held that the availability of spring mechanisms, functionally equivalent but with a different appearance, rendered the dual-spring mechanism non-functional.The Supreme Court reversed, finding instead that the TrafFix dual-spring design was functional as a matter of law. The Court thus held that the availability of functionally equivalent, …

Co-Operative Development Of Technology: Understanding The Risks And Creating Opportunities To Excel, David L. Hitchcock

Computer Law Review and Technology Journal

While technological advances come with increasing speed and complexity, the globalization of the economy has forced companies to become leaner and more focused on their core areas of expertise. As a result companies are forced to seek and acquire assistance from others when dealing with certain technological areas. In such cases, businesses often form co-operative relationships, such as outsourcing development work, mutual development agreements, joint ventures. These and other co-operative affiliations serve to facilitate a rapid adaptation to market and technology changes. These types of arrangements often come with significant risks, among them loss of trade secrets and competitive know-how, …

Gene Patenting: Do The Ends Justify The Means?, Mark A. Chavez

Computer Law Review and Technology Journal

Over the course of the last decade, medical interest and research in the human genome has grown at an exponential rate. As a result, profit-seekers and scientists are turning to patent law to protect their financial and medical interests; recent recipients of patent protection include bacteria, a type of mouse, and even human genes. As these trends in medicine and intellectual property law develop, considerable debates are surging regarding the morality of awarding property rights in biological material, particularly human genes. While both sides of this debate present compelling arguments, if scientists and investors are expected to advance their innovative …

Striking A Balance Between Employer Business Interests And Employee Privacy: Using Respondeat Superior To Justify The Monitoring Of Web-Based, Personal Electronic Mail Accounts Of Employees In The Workplace, Micah Echols

Computer Law Review and Technology Journal

Electronic mail ("e-mail") is a convenient and financially beneficial tool in the workplace. Although businesses that take advantage of e-mail have experienced many benefits, these same businesses also face a number of disadvantages. One such disadvantage is the legal liability that employers may face-under a vicarious liability theory-for the e-mail-related actions of their employees. Due to this exposure, nearly eighty percent of employers have turned to various methods of monitoring their employees, including direct e-mail monitoring. Traditionally, this type of monitoring has been limited to company, proprietary e-mail accounts, in which courts have routinely held that an employee has no …

Proposed Patent Local Rules For Adoption By Texas' Federal District Courts, Alfonso Garcia Chan

Computer Law Review and Technology Journal

This paper proposes a set of local rules to govern patent cases litigated in Texas' U.S. District Courts. The Proposed Patent Local Rules combine the patent rules implemented by U.S. District Judge T. John Ward of the Eastern District of Texas and the most-recent version of the Patent Local Rules of the U.S. District Court for the Northern District of California. The Proposed Patent Local Rules also incorporate comments from the Litigation Committee of the State Bar of Texas Intellectual Property Law Section. The Rules build upon the successes of existing rules in these other courts and can provide trial …

Should Patent Protection Be Considered For Computer Software-Related Innovations?, Elosie Gratton

Computer Law Review and Technology Journal

The twentieth century witnessed the development of more significant scientific and technological advances than any other period in history. In today's society computer-related technologies, including software, are at the forefront of change. But at the beginning of the computer age the computer industry overlooked software in favor of more-valuable computer hardware.

The question of software patentability arose during the 1960's and the early 1970's, when the prevailing view of computer suppliers was that software should not be protected by copyright or patent. The industry believed that a system allowing the free exchange and availability of computer programs might stimulate the …

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

Information Systems Security And Privacy Issues In The Armed Forces, John C. Dolak, Anna E. Dolak

Computer Law Review and Technology Journal

Members of our Armed Forces serve in foreign countries and throughout the United States. Service members and civilian employees working for the military are permitted limited personal use of military computer systems. This limited usage gives, for example, a sailor on a ship a way to communicate with his parents thousands of miles away. It also means that the military must balance the privacy expectations of users against the need to maintain secure computer systems. The military must also ensure that its systems are not used in an illegal fashion or for illegal purposes. Finally, the military must protect its …