SYLLABUS

The text for this course is Lemley, Menell, Merges, & Samuelson, Software and Internet Law (Aspen 2nd ed. 2003).  Assignments in this Syllabus from "Text" refer to this book.  Hyperlinks are supplied to other assigned materials.  "Additional Reading" is supplied for those who wish to delve more deeply into a given subject, but it is not required.  Links to statutory and regulatory materials for most of what we will be studying this semester can be found on the Course Materials section.  For recent updates to the text, go to Software and Internet Law - Updates, a site maintained by the authors of the text.

This syllabus will be followed in the main, but minor adjustments will be made to comport with actual class coverage and recent developments.  So, if you operate from a hard copy of this syllabus, be sure to check back at least weekly to make sure that you are working from an up-to-date version.

A good (and free) electronic newsletter that helps one keep up with developments in cyberlaw generally is Bytes in Brief.  

Click here for class Announcements. 

Monday August 23:  Software protection (trade secret)

Reading: Text 1-31; Uniform Trade Secrets Act

Additional Materials:

• Introduction to Computer Technology, Network Economics and Intellectual Property, (Chapter 1 of first edition of text, pdf format, 1.7 MB)
• On the developing law of internet linking, see the Athens 2004 web site

Wednesday August 25: Software protection (copyright)

Reading: Text 33-39; Copyright Act §§ 101 (definition of "computer program"), 102(b), 117

Additional Materials: 

• Karjala, A Coherent Theory for the Copyright Protection of Computer Software and Recent Judicial Interpretations, 66 U. Cincinnati L. Rev. 53 (1997)(offering a general theory for the copyright protection of computer programs, user interfaces, and reverse engineering)
• Karjala, Copyright Protection of Computer Program Structure, 64 Brooklyn L. Rev. 519 (1998)(critically analyzing Altai and Softel)
• Karjala, Copyright Protection of Operating Software, Copyright Misuse, and Antitrust, 9 Cornell J. L. & Pub. Pol. 161 (1999)(analyzing network effects in the case of operating software)

 Monday August 30: Software protection (copyright)

Reading: Text 39-76

Additional Materials:  General Universal Systems, Inc. v. Lee, 379 F.3d 131 (5th Cir. 2004)(program copyright protects nonliteral elements like SSO, user interfaces, screen displays, and menu structures - dictum but without any reference to functionality limitations - but literal infringement must be proved by side-by-side comparison of code)

Wednesday September 1: Software protection (copyright)

Reading:  Text 94-109

Additional Materials:  Storage Technology Corp. v. Custom Hardware Eng'g Consulting Inc. (D. Mass. 2004)(section 117 does not protect a third party software maintenance firm that breaks through an access control mechanism designed to prevent use of a software diagnostic program)

Monday September 6

Labor Day, No Class

Wednesday September 8: Software protection (copyright); Copyright Misuse

Reading:  Text:  109-22; 139-47

Monday September 13:   Software protection (patent)

Reading:  Text 149-81

Wednesday September 15:  Software protection (patent)

Reading:  Text 181-87

Additional Materials:  

• Karjala, The Relative Roles of Patent and Copyright in the Protection of Computer Software, 17 John Marshall J. Computer & Info. L. 41 (1998)
• Karjala, Distinguishing Patent and Copyright Subject Matter, 35 Conn. L. Rev. 439 (2003)(includes an evaluation of State Street and the business method problem)

Monday September 20:  Software protection (patent)

Reading:  Text 188-207

Wednesday September 22  Software protection (patent)

Reading:  Text 207-228

Additional Materials:  

• Medical Instrument and Diagnostic Corp. v. Elektra AB, No. 03-1032, (Fed Cir. 9-22-03)(a sec. 112 para.6 claim may not be construed as covering software to perform a function where the disclosure itself does not clearly associate software with the "means for" function)

Monday September 27: Software protection (trademark)

Reading: Text 229-260

Wednesday September 29: Database protection

Reading:  Text 275-86; Assessment Technologies v. WIREdata, Inc., No. 03-2061, 7th Cir. Nov. 25, 2003 (compilation copyright in database, where data is input by municipal tax assessors, does not extend to the data and, if necessary, even copying the copyright owner's database program for the limited purpose of extracting the unprotected data is a fair use); H.R. 3261, Database and Collections of Information Misappropriation Act (introduced Oct. 8, 2003); for those who have not yet read Feist Publications v. Rural Telephone, 499 U.S. 340 (1991), now would be as good a time as any.

Additional Materials:    

• Positive Software Solutions v. New Century Mortgage Corp., 259 F. Supp. 2d 531 (N.D. Tex. 2003)(holding a data structure copyright protectable)
• Prepared testimony at House Committee Hearing on Draft Database and Collections of Information Misappropriation Act, 9-23-03
• BNA Summary of House Committee Hearing on Draft Database Bill
• Karjala, Copyright in Electronic Maps, 35 Jurimetrics J. 395 (1995)

Monday October 4: Database protection (continued)

Reading:  Same materials as Sept. 29

Wednesday October 6: Unauthorized access (trespass to chattels)

Reading: Text 940-952; 969-70; Register.com v. Verio, Inc., 356 F.3d 393 (2nd Cir. 2004); 18 USCA sec.1030 (Computer Fraud and Abuse Act)

Additional Materials:

• Intel v. Hamidi (California Supreme Court 2003)
• Copyright Law Professors' Amicus Brief in Support of Bidder's Edge
• Register.com, Inc. v. Verio, Inc. (SDNY, Dec. 2000)
• Dan L. Burk, The Trouble with Trespass, 4 J. Small & Emerg. Bus. L. 27 (2000)(pdf format)
• Pearl Investments, LLC v. Standard I/O, Inc. 257 F. Supp. 2d 326 (D. Maine 2003)(holding, at page 354,  that trespass-to-chattels liability for unauthorized access to a computer network requires a showing of impairment to the condition, quality, or value of the system) 

Monday October 11

Fall Break, No Class

Wednesday October 13

Fall Break, No Class

Monday October 18:  Trademarks in Cyberspace (domain names and cybersquatting)

Reading: Text 629-664

Additional Materials:

• P.L. 106-113 (full text of ACPA, including provisions for protecting individual names not registrable as trademarks)

Wednesday October 20:  Trademarks in Cyberspace (anticybersquatting and the UDRP)

Reading: Text 664-682
Anticybersquatting Consumer Protection Act of 1999 (ACPA), 15 U.S.C. § 1125(d)

Additional Materials:

• Uniform Disputer Resolution Policy (ICANN, Oct. 24, 1999)
• Rules for Uniform Domain Name Dispute Resolution Policy (ICANN, Oct. 24, 1999)
• Storey v. Cello Holdings LLC, 2nd Cir. 10-09-2003 (dismissal of earlier ACPA action with prejudice does not preclude bringing a subsequent UDRP or ACPA claim based on continued use of the trademark in a domain name and new activities showing bad faith)
• Virtual Works, Inc. v. Volkswagen of American, Inc. (4th Cir. Jan. 2001)(pdf format)(html)(registration of "vw.net" was in bad faith under the ACPA because other names, like "vwi.net" were available and because registrant consciously thought at the time of registration that "vw.net" would likely be quite valuable to someone)
• Springsteen v. Burgar and Bruce Springsteen Club (WIPO Administrative Panel Decision, January 2001)
• Referee Enterprises, Inc. v. Planet Ref, Inc. (E.D. Wisc. Dec. 2000)(registered mark in "Referee" infringed by use in "ereferee.com," "ereferee.net," and "ereferee.org"); but cf. Referee Enterprises v. Planet Ref, UDRP Decision, June 2000 (finding that respondent sports store had a legitimate interest in the "ereferee" name and that the term "referee" was generic so that, even if it had secondary meaning for a magazine title, all uses could not be preempted)
• Netlearning, Inc. v. Parisi (UDRP Proceeding Oct. 16, 2000)(ordering transfer of domain name notwithstanding that respondent's registration of "netlearning.com" preceded complainant's first use of "netlearning" as a trademark); Parisi v. Netlearning, Inc. (E.D. Va. 2001)(Federal Arbitration Act's restrictions on judicial review of arbitration awards do not apply to civil actions challenging UDRP panel decisions)
• Heathmount A.E. Corp. v. Technodome.com (E.D. Va. Dec. 29, 2000)(due process requirements for in personam jurisdiction do not apply to the ACPA's in rem procedure and Congress did not exceed its authority in deeming a domain name to be "property" for this purpose)
• Alitalia-Linee Aeree Italiane S.p.A. v. Casinoalitalia.com (E.D. Va. Jan. 19, 2001)(a mark owner may proceed under the ACPA either in personam against an infringer or, in certain circumstances where this cannot be done, the owner may proceed in rem against the domain name; a mark owner may not proceed against both at the same time)
• Northland Insurance Cos. v. Blaylock (D. Minn. Sept. 25, 2000)(registration and use of domain name containing another's trademark for the purpose of criticizing the trademark owner is not infringing nor does it violate the ACPA)

Monday October 25: Trademarks in Cyberspace (metatagging and keywords)

Reading: Text 682-703; 1-800 Contacts, Inc. v. WhenU.com, 309 F. Supp. 2d 467 (S.D.N.Y. 2003)(competitive pop-up ads triggered by plaintiff's trademarks subject to preliminary injunction); GEICO v. Google, Inc. (E.D. Va. 8-8-05(no showing of confusion where Google search on "Geico" triggers sponsored links offering car insurance but do not reference "Geico"; likelilhood of confusion shown where such ads do reference "Geico")

Additional Materials:  U-Haul v. WhenU.com, E.D. Va., Sept. 5, 2003 (pop-up ads triggered by words at a web site do not infringe the trademark of the web site owner); Wells Fargo & Co. v. WnenU.com, 293 F. Supp. 2d 734 (E.D. Mi. 2003)(no likely trademark infringement from use of name in directory to trigger pop-up ads); Bijur Lubricating Corp. v. Devco Corp., 332 F.Supp.2d 722 (D.N.J. 8-26-04)(metatags using plaintiff's trademark triggering the description "Bijur replacement lubrication parts by Devco" was not confusing as a matter of law nor did it dilute the Bijur mark because it is a nominative fair use, notwithstanding that application of most of the factors used to determine likelihood of confusion were unfavorable to defendant)

Wednesday October 27: Copyright Law in Cyberspace (direct infringement and fair use)

Reading: Kelly v. Arriba, 336 F.3d 811 (9th Cir. 2003); Text 712-717; Video Pipeline, Inc. v. Buena Vista Home Entertainment, 342 F.3d 191 (3rd Cir. 2003)

Monday November 1: Copyright Law in Cyberspace (liability of internet service providers)

Reading: Text 717-727; RIAA v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003)(DMCA subpoena provisions); Online Policy Group v. Diebold, Inc., No. C 03-04913 JF (N.D. Cal. 9-30-2004)(liability under 512(f) for misrepresentations to a service provider resulting in the removal of material from a web site); Digital Millenium Copyright Act, 17 U.S.C. § 512

Additional Materials:

• US Copyright Office Summary of the DMCA (December 1998)(pdf format)
• In re Verizon Internet Services, 240 F. Supp. 2d 24 (D.D.C., Jan. 21, 2003)(lower court opinion in the Verizon case on the DMCA subpoena provisions)
• In re Verizon Internet Services, 257 F. Supp. 2d 244 (D. D.C. 2003)(case & controversy and First Amendment aspects of the Verizon case)
• ALS Scan Inc. v. Remarq Communities, Inc. (4th Cir. Feb. 6, 2001)(ISP liability after substantially compliant notice under the DMCA); 17 U.S.C. § 512(c)
• Gone With the Wind heirs threaten Project Gutenberg, Teleread, Oct. 29, 2004 (Gone with the Wind is currently in the public domain in Australia, but the Margaret Mitchell estate is threatening a site that has put the work online, making it available in countries where it is still protected)

Wednesday November 3: Copyright Law in Cyberspace (contributory and vicarious infringement)

Reading: Text 728-745; Copyright Act § 1008

Monday November 8: Copyright Law in Cyberspace (contributory and vicarious infringement, continued)

Reading:  In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003); MGM v. Grokster, 380 F.3d 1154 (9th Cir. 2004); Inducing Infringements of Copyright Act (S.2560), Cong. Rec. 6/22/04, at S7189; Inducing Infringements of Copyright Act of 2004, Copyright Office Discussion Draft, Sept. 2, 2004

Additional Materials: 

• Electric Frontier Foundation, Fake Complaint, Major Record Labels v. Apple Computer, Toshiba Corp, and CNET Networks, Inc., charging them with copyright infringement under the proposed Inducing Infringements Act
• Movie Studios Cert Petition in Grokster, Oct. 8, 2004
• Amicus Brief in Ninth Circuit of 40 IP and Technology Law Professors Supporting Affirmance (arguing for upholding the Sony rule on devices that have a substantial noninfringing use)

Wednesday November 10: Copyright Law in Cyberspace (contributory and vicarious infringement, continued)

Reading:  Continued from previous day

Monday November 15:  Copyright Law in Cyberspace (DMCA anticircumvention rules)

Reading: Text 745-771; Copyright Act  §§ 1201 & 1202; 321 Studios v. MGM, 307 F. Supp. 2d 1085(N.D. Cal. 2004)

Additional Materials:

• John Bortland, Program points way to iTunes DRM hack, CNET News, Nov. 24, 2003 (Jon Johansen does it again, this time offering a program that shows how to evade iTunes anticopying measures); Johansen's personal web site is http://www.nanocrew.net  
• Brock Read,  Film Industry Pledges to Begin Suing Suspected Online Movie Swappers This Month, Chronicle of Higher Education, Nov. 5, 2004
• CD Copy Protection Trumped by Shift Key, CNN.com/Technology, Oct. 8, 2003 (please go to CNN.com to see the original story); Foster, Maker of CD-Encryption Software Says It Will Sue Student Who Reported Security Flaw, Chronicle of Higher Education, Oct. 10, 2003; Foster, SunnComm Backs Off Lawsuit, Chronicle of Higher Education, Oct. 13, 2003.  For a tongue-in-cheek view of these claims, see Keyboard Manufacturers Named in DMCA Suit
• How to Decrypt a DVD:  in Haiku Form
• Gallery of CSS Descramblers (giving various examples trying to show the logical difficulties in Judge Kaplan's position that source code can be distinguished from other forms of written expression)
• David F. Gallagher, Movie Industry Frowns on Professor's Software Gallery, New York Times, Mar. 30, 2001
• Pearl Investments, LLC v. Standard I/O, Inc. 257 F. Supp. 2d 326 (D. Maine 2003)(holding, at page 350, that whether a measure "effectively controls access" is analyzed solely with reference to how the measure works in the ordinary course of its operations)
• US Copyright Office, Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works, Oct. 28, 2003

Wednesday November 17:  Copyright Law in Cyberspace (DMCA anticircumvention rules)

Reading:   Lexmark International, Inc v. Static Control Components, Inc., 6th Cir. 2004; 

Monday November 22:  Copyright Law in Cyberspace (DMCA anticircumvention rules)

Reading:  Lexmark (continued); Chamberlain Group v. Skylink Technologies, 381 F.3d 1178 (Fed. Cir. 2004)

Wednesday November 24:  Copyright Law in Cyberspace (DMCA anticircumvention rules)

Reading:  Storage Technology Corp. v. Custom Hardware Eng'g Consulting Inc. (D. Mass. 2004)(DMCA claims); I.M.S. Inquiry Management Systems, Ltd. v. Berkshire Information Systems, Inc., 307 F. Supp. 2d 521 (S.D.N.Y. 2004)

Monday November 29:  Copyright Law in Cyberspace (DMCA anticircumvention rules, shrinkwrap licenses)

Class Excused -  Happy Thanksgiving!

Additional Reading:  Davidson & Assocs. v. Internet Gateway, 334 F.Supp.2d 1164 (E.D. Mo. 2004); Law Professors Amicus Brief on Appeal in Davidson