Computer Law Commons^™

E Wars - Episode One: The Patent Menace, Raymond Van Dyke

Computer Law Review and Technology Journal

With the advent of the Information Age and the consequent transformation of our society, information companies have recognized the importance of protecting their business methodologies. As with any technological revolution, competition between the players is intense, and in this new arena of business, competitors have turned patents into a weapon of choice. Thus, businesses need new strategies to avoid becoming unnecessary casualties in this war.

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

What Online Activity Does The Wiretap Act Protect? The Ninth Circuit Holds That Unauthorized Access Of A Secure Website Does Not Violate The Federal Wiretap Act Konop V. Hawaiian Airlines, Inc., Thomas P. Ludwig

Computer Law Review and Technology Journal

Throughout the last half-century, there has been constant tension in the communication arena between individual privacy interests and the interests of law enforcement in proactively combating crime and terrorism. The difficulty in maintaining a balance between these interests has been compounded by the explosive development in electronic communication technology over the last several decades. In an attempt to bring the state of privacy protection law up to date with modem technology, Congress enacted the Electronic Communications Privacy Act of 1986 ("ECPA"). While the ECPA was enacted "to update and clarify Federal privacy protections and standards," both the usage and the …

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

Temptations To Take: Misappropriation Of Trade Secrets, Damages And Remedies, Eric S. Tautfest

Computer Law Review and Technology Journal

Protecting trade secrets serves two basic functions: it provides a means for preserving standards of commercial ethics and it encourages innovation. In contrast to a patent or a copyright, a trade secret has no statutory limitation and can, conceivably, be protected forever. Further, while patent and copyright protection extends only to certain types of materials or information, trade secret protection extends to a wide range of information. Additionally, trade secrets are not publicly disclosed; with patents, the entire patent file and its contents become public property.

In Texas, trade secret protection is defined by a large body of welldeveloped case …

Game When They Win; Investment When They Lose: Sec V. Sg, Ltd., Todd M. Tippett

Computer Law Review and Technology Journal

Congress established the Securities Act of 1933 and the Securities Exchange Act of 1934 to protect citizens from fraud in a wide array of financial instruments, ranging from well-established investment vehicles such as stocks and bonds to the more elusive concept of the investment contract. The landmark case of SEC v. W.J. Howey Co. has long grounded judicial efforts in defining what is and what is not an investment contract. The various federal circuit courts struggle, however, with the applicability of one prong of the Howey test, namely the requirement of a "common enterprise," with no indication of an agreement …

Patent Pending ... Pending ... Pending The Evolution Of Equivalents: Festo Corp. V. Shoketsu Kinzoku Kabushiki Co., Karly Stoehr

Computer Law Review and Technology Journal

Information is rapidly becoming many firms' most valuable resource and the patents protecting inventions have become critical strategic assets. In May of 2002, the Supreme Court unanimously issued a ruling on the doctrine of equivalents that will likely trigger inconsistent results in future patent protection cases. Patent holders acquire a limited monopoly of twenty years to generate profits. Patent protection is critical because there is a strong need to provide firms with sufficient incentives to create and invest in new technologies. It is important, therefore, to provide clear guidelines for patent procedures so that inventors may rely on future protection. …

Ashcroft V. Aclu: The Fate Of The Child Online Protection Act, Marybeth Eyrich

Computer Law Review and Technology Journal

Concerns about the proliferation and accessibility of cyber-porn motivated Congress to pass legislation intended to protect children from on-line pornography. This nascent attempt to regulate the Internet has not yet passed constitutional muster, as Congress's efforts to protect children have been thwarted by First Amendment challenges. Ashcroft v. ACLU examines, but does not resolve, the constitutionality of the Child Online Protection Act ("COPA"). The issue in Ashcroft was whether COPA's use of "community standards" to identify "material that is harmful to minors" violated the First Amendment. In a plurality opinion, the Court held that COPA's use of "community standards" does …

Clients' Views On Privacy And Security After September 11: Have They Changed? Should They? An Information Technology Lawyer's Perspective, Richard G. Lyon

Computer Law Review and Technology Journal

No abstract provided.

Looking For A Crack To Break The Internet's Back: The Listen4ever Case And Backbone Provider Liability Under The Copyright Act And The Dmca, Daniel W. Kopko

Computer Law Review and Technology Journal

In August 2002, a group of 13 record labels brought a lawsuit against the four major companies that provide the "backbone" infrastructure of the Internet. The record labels sought an injunction under section 512 of the Digital Millennium Copyright Act of 1982 ("DMCA") to compel the defendants to block access to a China-based website, Listen4Ever.com ("Listen4ever"), that offered free downloads of entire albums of copyrighted music from its central server. The labels alleged that Listen4ever located its operations in China specifically to evade U.S. copyright laws. They noted that the site was in English and offered almost exclusively music by …

Personal Jurisdiction: Lost In Cyberspace?, Susan Nauss Exon

Computer Law Review and Technology Journal

No abstract provided.

The Erosion Of Online Privacy Rights In The Recent Tide Of Terrorism, Thomas P. Ludwig

Computer Law Review and Technology Journal

Imagine a world where any idea or message communicated to another individual is subject to governmental scrutiny for possible criminal, subversive, or terroristic content. The current location of any individual, as well as the places that he or she commonly frequents, can easily be tracked through that person's phone calls, online activity, and financial records, which are all accessible to government agencies. By intercepting e-mails and tracking online browsing, shopping, and other activities, the most intimate details, habits, and preferences of the average individual are readily available to the prying eyes of cyber-criminals and law enforcement officials alike. Scenarios such …

Adequacy Of The 1995 Antitrust Guidelines For The Licensing Of Intellectual Property In Complex High-Tech Markets, Clovia Hamilton

Computer Law Review and Technology Journal

In 1995, the Department of Justice and the Federal Trade Commission adopted new guidelines for those wishing to license intellectual property rights without violating antitrust laws. Designed to provide clarity, these guidelines instead breed confusion because they misunderstand the nature of intellectual property markets and provide insufficient guidance in the most difficult areas. Section I of this article will discuss the basic provisions of the guidelines, especially their treatment of "innovation markets." It argues that government enforcers should focus primarily on activity that creates entry barriers. Understanding the use and misuse of licensing is the key to analyzing barriers in …

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

Cyberpiracy - The U.S. Legislative Response, John M. Cone

Computer Law Review and Technology Journal

During the 1990s, Americans embraced a new personal and commercial communication medium - the Internet. When the World Wide Web and millions of websites were introduced in the early 1990s, the Internet changed from an obscure tool for exchanging military and scientific information to a ubiquitous communication technology. During this period, some people sought to capitalize on the Internet's increasing commercial potential by reserving Internet use of famous corporate names and then selling the reserved names back to the companies for hefty profits. Lawsuits concerning this practice - dubbed "cybersquatting" or "cyberpiracy" - produced inconsistent results. By the end of …

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

Drafting Licenses To Guide Whether Potential Disputes Lie In Contract Or Infringement, Edwin E. Richards

Computer Law Review and Technology Journal

A contract draftsperson has many questions to consider when a client decides to license her intellectual property rights to another party. What rights should be assigned or licensed? What should the duration of the license be? What should the royalties be and when and how will they be calculated?, What law should govern? The contract draftsperson must also probe further and confront a very "murky" area when attempting to craft the agreement-he must ensure that the licensing contract will not ultimately bar the client from gaining access to federal court to raise an infringement claim. The draftsperson must anticipate the …

Digital Millennium Copyright Act: Can It Take Down Internet Infringers?, David L. Clark

Computer Law Review and Technology Journal

In response to the growing digital age, Congress enacted the Digital Millennium Copyright Act ("DMCA") on October 28, 1998. Unlike traditional copyright statutes, the DMCA does not address the act of infringement but instead focuses on the technology that makes infringement easier. Copyright holders have begun to develop encryption technology to prevent unauthorized use of their works, and the DMCA assists those efforts by prohibiting any person from circumventing those security provisions or selling decryption devices. The DMCA also encourages Internet Service Providers ("ISPs") to disable websites that are accused of copyright infringement; it protects the ISPs with a safe …

Fast, Cheap, And Out Of Control: Lessons From The Icann Dispute Resolution Process, Elizabeth G. Thornburg

Computer Law Review and Technology Journal

The Internet is constantly expanding, both as a means of communication and as a means of commerce. As its contacts among people and businesses expand, more and more disputes will arise and will need resolution. These disputes will evolve both from business-to-consumer transactions and from business-to-business transactions. Some of the claims will include breach of contract, breach of warranty, and even fraud. Others will concern intellectualproperty rights such as trademarks, copyrights, and patents. Still others will involve competition law, raising issues of antitrust, trade disparagement, and other claims of unfair competition. Alleging defamation, invasion of privacy and emotional distress, some …

The Protection Of Intellectual-Property Rights In A Federalist Era, Steve Malin

Computer Law Review and Technology Journal

The framers of the Constitution envisioned a nation comprising several separate and independent sovereign states. Under a system of dual sovereignty, the states gave up certain enumerated powers delegated to the federal government. Among those powers was the authority to enact laws designed to protect patent and copyright owners and to encourage invention and original authorship.

Also in the framers' minds - recent caselaw tells us - was the belief that the states retained immunity from suits brought by individuals. Despite this fact, the federal intellectual-property system has historically placed sovereign states on equal footing with individuals as to both …

Widgets To Windows: The "Webolution" Of Commercial Sales, Joseph A. Zavaletta, Edward B. Hymson

Computer Law Review and Technology Journal

Five years ago, a new "nation" developed unlike any other in history - it has no government, no political borders, no buildings, no army, no citizens, no elections, and no leader. But by all accounts, this nation has the most dynamic economic engine in history. Based on recent studies by the Center for Research in Electronic Commerce at the University of Texas at Austin ("CREC"), if this nation were ranked by gross domestic product, its 2000 revenues of $830 billion would give it the twelfth largest gross domestic product in the world, ahead of Canada and behind Mexico. With an …

An Ip Conundrum: Can Patent Policy And Trade Dress Law Be Reconciled?, Michael Scott Fuller

Computer Law Review and Technology Journal

Patent protection in the United States has traditionally been a compromise between the competing interests of Congress and the inventor. While Congress seeks disclosure of technology in order to benefit the common good, inventors want protection of their proprietary inventions, otherwise known as their "intellectual property." Patent law provides a bargained-for exchange, giving the invention protection for a finite period of 20 years from the date of application. Upon expiration of this congressionally sanctioned monopoly, the invention passes ipso facto into the public domain.

In the past, this mutually beneficial arrangement was the accepted means by which both Congress and …

Telecommunications Law: Open Access To Cable Broadband Transmission: At&T Corp. V. City Of Portland, 216 F.3d 871 (9th Cir. 2000), Deborah L. Lively

Computer Law Review and Technology Journal

In AT&T Corp. v. City of Portland, the Ninth Circuit considered whether a local cable franchising authority could condition the transfer of a cable franchise upon the cable operator's grant of unrestricted access to its cable broadband transmission facilities.

In 1998, AT&T - the nation's largest long-distance telephone provider - proposed a merger with Telecommunications, Inc. ("TCI"), which was among the nation's largest cable-television operators. In the merger, AT&T received access to TCI's cable broadband transmission system as a conduit for AT&T's "@Home" Internet service. A cable broadband system provides Internet access at much faster speeds than through typical modem …

Business-Method Patents: Of Questionable Validity? - Amazon.Com, Inc. V. Barnesandnoble.Com, Inc., 239 F.3d 1343 (Fed. Cir. 2001), Chris Morton

Computer Law Review and Technology Journal

In 1998, in State Street Bank & Trust Co. v. Signature Financial Group, Inc., the Federal Circuit gave new life to the business-method patent. Critics viewed this decision as a judicially created exception to the statutory requirement ofpatentable subject matter. Uncertainty under the State Street ruling led to the issuance of a flood of widely criticized and questionable patents, including Amazon.com's one-click-purchase patent. In an attempt to enforce this patent, Amazon.com sued Barnesandnoble.com, and the trial court granted a preliminary injunction. Bamesandnoble.com appealed, claiming that the one-click-purchase patent was invalid because it failed to meet the statutory requirements of …

Hyperlinks To And From Commercial Websites, Christopher J. Volkmer

Computer Law Review and Technology Journal

E-commerce, through the use of a website, is a business reality. This is true for companies of any size, in any location, selling any kind of product or service. Doing business over the Internet is part of what all companies must do to compete; with this new form of business, however, comes new legal issues. As e-commerce develops, it is important for business owners to keep advancing their knowledge in order to manage the risks that come with new opportunities.

Hyperlinks are basic building blocks used to connect the sites of the World Wide Web, and their use has significant …

Copyright Act Of 1976 - Copyright Infringement - Supreme Court Holds That The Selling Of Freelance Authors' Articles By Print Publishers To Electronic Publishers Constitutes Copyright Infringement. New York Times Co. V. Tasini, 533 U.S. 483 (2001), S. Brock Benson

Computer Law Review and Technology Journal

In New York Times Co. v. Tasini, the Supreme Court decided the issue of whether the selling to electronic publishers of articles in collective works without permission from the freelance authors was permissible under § 201 (c) of the Copyright Act. In earlier proceedings, the United States District Court for the Southern District of New York granted summary judgment for the publishers, holding that the publishers were entitled to place contents of their periodicals into electronic databases without the permission of the authors whose works appeared in the periodicals. The Court of Appeals for the Second Circuit, however, reversed …

Traditional Free-Speech Law: Does It Apply On The Internet?, A. John Harper Iii

Computer Law Review and Technology Journal

The First Amendment states that Congress "shall make no law . . . abridging the freedom of speech, or of the press." But as Oliver Wendell Holmes recognized, the First Amendment "obviously was not intended to give immunity for every possible use of language." Accordingly, the Supreme Court's free-speech jurisprudence has traditionally been one of line drawing - distinguishing protected from unprotected speech by evaluating its content in light of the medium through which it is expressed. In terms of content, there are generally three categories of speech: "(1) speech that everyone has a right to (political speech, speech about …

Packet Sniffers And Privacy: Why The No-Suspicion-Required Standard In The Usa Patriot Act Is Unconstitutional, Robert Berkowitz

Computer Law Review and Technology Journal

The legal standards for electronic surveillance, like the underlying technologies themselves, are constantly evolving. Originally aimed at analog telephones with landlines, the law has had to develop in order to deal with an expanding array of electronic communications, most recently the Internet. The challenge is a double one: statutes allowing surveillance must balance law enforcement's need for information with the privacy rights of the subjects of surveillance and the public at large. The USA Patriot Act, passed in the wake of the terrorist attacks on New York City and Washington, D.C., is the most recent attempt to strike this balance. …

Backdoor Liability From Internet Telecommuters, Mark J. Maier

Computer Law Review and Technology Journal

Internet telecommuters work from home and access their employer's internal network over the Internet. This relatively new style of work has increased in popularity through the years, with an estimated 4.5 million workers Internet telecommuting in 1999. While employers enjoy compelling benefits such as reducing overhead costs, Internet telecommuting raises new security concerns for employers by exposing their internal networks to "backdoor attacks" that exploit the telecommuter's connection. The recent backdoor attack on Microsoft's source code illustrates the extent to which such attacks threaten confidential information. If such confidential information belongs to a client or third party, then the telecommuter's …

European Union Legal Research: A Guide To Print And Electronic Sources, L. Kurt Adamson

Computer Law Review and Technology Journal

Legal practice today is a global activity. American lawyers need to find legal information efficiently, even when the information from jurisdictions far beyond the boundaries of their state or of the United States. Legal practice routinely involves international fields such as trade, business transactions, and taxation. The nations of Europe, especially those of the European Union ("EU"), are major trading partners of the United States and are the source of many legal transactions. This guide identifies the print and electronic sources that are most useful for finding relevant legal information from the EU.