[IP] Computer Law Considered Harmful

[David Farber <dave@farber.net>]

Begin forwarded message:

From: john noble <jfnbl@EARTHLINK.COM>
Date: September 6, 2004 2:53:36 PM EDT
To: CYBERIA-L@LISTSERV.AOL.COM
Subject: Re: [CYBERIA] Computer Law Considered Harmful
Reply-To: Law & Policy of Computer Communications 
<CYBERIA-L@LISTSERV.AOL.COM>

As the editor of Computer Law Reporter for the last 15 years, I think
this obscures significant transformations of the Law to accommodate
advances in the hardware, software and information service
industries, which is how I define "computer law".

The scope of copyright protection for software, for example,
certainly springs from Baker v. Selden (1880) and Nichols v Universal
Pictures (1930), but its evolution from Apple Computer v. Franklin
Computer (1983), to Whelan Associates, Inc. v. Jaslow Dental
Laboratory (1986), to Computer Associates International Inc. v. Altai
Inc (1992), to Apple v Microsoft (1994), to Lotus v. Borland (1995),
was fairly dramatic in its elaboration and refinement of the once
simple, and simply applied, idea-expression dichotomy.

In patent law as well, courts have struggled with application of the
general rule of patentability -- "everything under the sun made by
man" -- to methods and algorithms embedded in software and specially
programmed general purpose computers.

The most dramatic recent example can be found in antitrust law, where
new technological realities effectively forced the D.C. Court of
Appeals in U.S. v. Microsoft (2001) to abandon the rule that all
tying arrangements are per se unlawful as articulated more than 50
years ago by the Supreme Court in International Salt v. U.S. (1947).

I would at least strike "merely" from Andrew's formulation, and I
question whether the principles that generated so much controversial,
extended and expensive litigation can be characterized as
"well-understood" outside of the relatively uncomplicated fact-sets
for which they were originally developed.

John Noble

At 6:33 AM -0700 9/6/04, Paul Gowder wrote:
> "Andrew Greenberg" <werdna@MUCOW.COM> sed:
>
> "I used my bully pulpit to assert that there was no
> such
> thing as computer law -- it was merely the application
> of
> well-understood principles of other bodies of
> substantive law toinformation technologies.  Just
> another set of facts for working with well-understood
> legal principles."
>
> HEAR, HEAR!
>
> And all the rest, too.
>
> Why haven't more people been uttering this
> self-evident fact louder, earlier, and oftener?
>
> -Paul
>
>
>
>
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