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Computer Law Considered Harmful
From: David Farber <dave () farber net>
Date: Mon, 06 Sep 2004 15:54:40 -0400
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 HarmfulReply-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 __________________________________ Do you Yahoo!? New and Improved Yahoo! Mail - Send 10MB messages! http://promotions.yahoo.com/new_mail ********************************************************************** For Listserv Instructions, see http://www.lawlists.net/cyberia Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot Need more help? Send mail to: Cyberia-L-Request () listserv aol com **********************************************************************
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- Computer Law Considered Harmful David Farber (Sep 06)