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6. COMPUTER LAW



6.1 What is Computer Law?
6.2 Trademarks
6.3 Trade Secrets
6.4 Copyrights
6.5 Patents
6.6 Summary

6.1 what is computer law?^

Computer law is a very broad topic because computers are used in more and more industries resulting in a corresponding increase in the cases in which legal issues must deal directly with computers and their influence. A small sampling of the legal areas involving computers includes: computer systems and sales contracts, licensing of computer technology, computer crime, computer and information services contracts, fraud and computer related torts, electronic transactions, information products and electronic publish-ing, privacy, disclosure and access to information.

With regard to intellectual property, computer and information technology has seen some significant changes within the last few years. These changes are largely a result of the law working to manage two conflicting interests. These interests relate to the age old issue of deciding how to encourage innovation.

On one hand, scholars suggest that innovation, in such an influential field as computer technology, is best promoted by allowing the public to freely use and build upon the work of others. They hold the LINUX computer operating system up as their poster child. This operating system was developed originally through a single programmer’s efforts. He then made the source code available to a community of program-mers who then made suggestions and developed code to fix bugs and improve the system. Now, this operating system competes with corporate giant Microsoft’s Windows NT for the market of networked personal computers.

Computers permit man to solve problems much faster, and efficiently than before. Other problems, previously unsolvable, may now be solved because of a computer’s speed and ability to manage complexity without making mistakes. However, computers are simply machines which at their most rudimentary level add, subtract, multiply, and divide numbers. The power of computers lies in the ability of program-mers to instruct the computer to perform a series of tasks.

Programmers are humans. They are susceptible to the same mistakes and errors as other fields of technology. The difference is that the programs written to instruct the computer quickly become too complex for the programmer to follow. One small mistake may have very dangerous consequences. Tedious tracing through the code and special debugging tools are required to identify where a programmer has made a mistake in the program.

Therefore, because of the complexity and difficulty in identifying and avoiding future errors in a computer program, scholars and computer purist declare that innovation is best achieved by allowing all in the field and the public at large to cooperate to fix and improve computer programs. They suggest that all computer code, ideas, and inventions should be available to all, much like a library. They argue that the thrill of solving a difficult, complex, and technical problem is the proper motivation for innovation.

On the other hand, there are those who believe that innovation requires an incentive. Businessmen and industrialists advocate the patent system and other similar laws which provide protection to the inventor. They suggest that few inventors, particularly in such a popular technol-

ogy as computers, posses the benevolent sharing attitude suggested by the scholars. They suggest that our competitive economy coupled with little incentive to disclose the invention, aside from the reward of solv-ing a problem, will encourage programmers to keep their code secret. Large amounts of time and resources would be invested in protecting the code by encryption as well as other security measures.

If the patent system or some form of intellectual property legal protec-tion for disclosure did not exist, programmers would likely protect their ideas as trade secrets. Of course the motivation to protect the idea is so the inventor may make a profit. Those in the field may never find out what the programs are doing to work so effectively, aside from reverse engineering the program. This threat of reverse engineering and the work involved in keeping the program a trade secret would severely limit progress in the field.

Over the years, countries have struggled with this issue of how to encourage innovation in a budding computer field. Historically, in the United States there has been a shift from little protection to complete protection for the ideas, methods, and systems of computer systems and the programs running on them. However, the computer industry is not much different from other new areas of technology. Commentators often draw parallels between the struggles the courts have had in applying the intellectual property laws to computers to the struggles in other relatively young areas such as biotechnology.

Today, the intellectual property laws are enforced and interpreted such that computer systems and programs receive a high degree of protec-tion under the law. Computers and programs may be protected by trademarks, trade secrets, copyrights, and patents.

6.2 trademarks^

Just like any other product or service, a trademark or service mark may be registered for computer software and hardware. However, drawing the line between seeking registration for a trademark or a service mark may be difficult. For example, a computer software program may be written to allow users to fill out and file their tax returns using a web browser. Is this a service or a product? Arguments may be made for either. So, the best approach may be to apply for a trademark and a service mark registration

Other cases are clearer. A software program, which is installed on the user machine and executed, is clearly a product. Likewise, a website which allows one to archive data to the web server for safekeeping is more likely deemed a service.

Beyond the trademark or service mark determination, the remaining question is how to describe the goods. More computer and software related trademark descriptions are being accepted. And with the ability to search which descriptions have already been allowed, using the PTO database, this issue is becoming less and less important.

6.3 trade secrets^

As with trademarks, the fact that the subject of a trade secret relates to computer hardware or software is not really very critical. The same steps must be taken to treat a product, software, or information as a trade secret.

Originally, a computer program like any other idea could be protected by trade secret. However, trade secret protection may not be the most desirable because of the nature of computer software. Unlike a Coca-cola recipe or cookie recipe, a computer program can be reverse engineered and examined such that one could essentially recreate the original logic and flow of the computer program. This is generally not done by normal users. However, programmers generally have the means and wherewithal to perform these tasks. Therefore, trade secret protection may not be the best answer.

6.4 copyrights^

Copyright law generally does not apply to computer hardware such as keyboards, monitors, and disk drives. However, copyright protection has been available for the electronic Very Large-Scale Integration (VLSI) circuit designs used in computer chips and semiconductor chips often found in a computer.

Copyright law is one of the first areas of intellectual property that began to afford protection to software. Software is considered an art

within the Copyright statutes which is captured in a tangible medium when the computer program is written. The computer program is of course translated into a machine language which allows the computer to execute and perform the operations of the software.

One limitation in software copyright protection is that ONLY the tangible work is protected from duplication. Ideas, methods, logic flows, algorithms, and the like are not protected under copyright law. Those experienced in programming recognize that an algorithm or idea may be implemented in a variety of ways. These different imple-mentations result in a computer program that technically is different from the copyrighted program. By writing a computer program that accomplishes the same result using different programming code, the programmer may get the benefit of the idea or algorithm without literally infringing the copyrighted program.

However, the analysis is not this simple. One may be found to have infringed a copyrighted computer program even in cases where the code is not an exact duplicate. The copyright statute allows software to be copyrighted. However, interpretation of what the statutory language means when applied to software is still being determined by the courts. Copyright law is not yet settled regarding issues such as ‘fair use’, "derivative work’, functionality limitations, and other issues relating to software. This uncertainty may be a deterrent to seeking a registered copyright for computer software. However, the procedure for registration is relatively straight forward and inexpensive so the costs associated with this uncertainty are generally not too high.

6.5 patents^

Computer law related to patents was discussed earlier in the section on patents. It is important to remember that computer hardware has always been patentable subject matter and is treated the same as all products. Potentially more important are the changes that have recently allowed computer software to be patentable. Computer soft-ware coupled with hardware is patentable, and more recently computer software that produces some tangible result has become patentable as well. Though software per se has become patentable, there are still many rules and complexities that can hinder the process of obtaining a valid computer patent.

6.6 summary^

Computer law is a very broad topic. The Internet, computers, computer circuits, websites, digital music, Internet telephony, software piracy, computer software in all its variations are but a few of the many areas with ties to computer law. The above discussion is meant to point out of some of the issues which may be of primary interest and concern. However, for each computer law related issue a number of additional issues surface as the tip of this iceberg is explored by client, practitioner, and the courts alike.