Digital Law Online: Preface

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Introduction to the online version

Foreword

- Preface

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Preface (to the printed version)

This book started out not as something for lawyers, but as course notes for an introductory course in computer law for computer science undergraduates that I started teaching at the University of Utah in 1984.

I’ve never liked courses where the important material is presented only in the lecture, rather than in a textbook or lecture notes. That’s probably because I’m not good at taking notes during a lecture, preferring instead to listen to the instructor.

But when I first taught the course, there was no suitable textbook available. At first I passed out copies of the pertinent statutes but that was far from satisfactory. Important concepts in the protection of computer software, such as what is patentable and what is the extent of copyright protection for non-literal elements of a computer program, are not directly addressed by any statutory provision. And to properly understand the statute, you need to look at its legislative history and the court cases interpreting it. So I was back to presenting the important material in a lecture again.

The obvious thing to try next was to pass out copies of the important cases and legislative histories to the students. But it didn’t make sense having them read a long case just to find the paragraph or two discussing the particular point of interest. And many intellectual property cases cover more than a single form of protection. For example, one of the most important cases on the reverse engineering of computer software, Sega v. Accolade (977 F.2d 1510, 24 USPQ2d 1561 (9th Cir. 1992)), also deals with a peripheral issue of trademarks being used in a particularly tricky way to protect the interface between a video game and the game console.

For the 1995 class, I tried something different. For the class on software patents I wrote lecture notes that quoted the important statutory provisions, legislative history, and court cases along with my discussion of the topic. Those lecture notes, updated with new cases, are now Chapter 5 in this book. This approach worked out quite well, giving the students the important material, and exposing them to the actual language in the statutes and cases, without overwhelming them with extraneous material.

In January 2000, I was expecting to spend the next few months at the trial of Caldera’s antitrust suit against Microsoft as Caldera’s technical expert. About a week before the trial was to start, the parties settled and I found myself with unanticipated free time. Since I was scheduled to teach my computer law course in the fall, this was a perfect opportunity to expand the notes to cover the whole course. This book is the result.

But my efforts have gone well beyond this book. Rather than just publish the lecture notes, I decided that I would put all the backup material – cases, legislative history, and everything else that I referenced – on a Web site (www.digital-law-online.info) along with the lecture notes. This information would be available to everybody, at no charge. Summit Law Group, which was one of the legal counsels to Caldera, and Lineo, which is a spin-off of Caldera, provided grants to the University of Utah so that I could hire research assistants to help me put together the material for the class and the Web site.

The new class notes were used in the Fall 2000 offering of the class. To see whether the notes were understandable and conveyed the necessary information, there were no lectures in the class. Instead, I gave a reading assignment from the class notes every week. In class I answered student questions on the reading and then gave them a short quiz based on what they had read, which strongly encouraged them to do the reading and ask questions if they didn’t understand the material. My research assistants and I then considered the questions that were asked and the problems revealed by the quizzes and determined what changes should be made to the next version of the notes.

The notes on copyright and patent were in the best shape and are the basis for this first edition. I asked a number of friends who are experts in those areas to review the chapters and further revisions were made based on their valuable comments. Finally, the editors at BNA Books made suggestions that improved the presentation and did the final proofreading. The result is this book.

As I write this in August 2002, I’ve just started teaching my class again. I’ll be taking the questions and comments of the students to further improve the current chapters. I’m also revising the preliminary notes from the last class on trade secrets, trademarks, databases, and software licenses, and these will form the basis for the treatment of those topics in the second edition.

I’m also collecting and formatting the cases and other cited material for inclusion on the Web site, which should be online about the time this book is published. Look for it at www.digital-law-online.info.

Audiences

This book was originally written for a non-lawyer audience and it continues to be a useful introduction for a software developer on what types of protection can be used, what they protect and don’t protect, and why.

Because it presents the key material from the statutes and cases, it is also suitable for attorneys and law students wanting to gain a familiarity with copyrights and patents in general, and in particular with how current law protects software and other digital works. It provides a good introduction as well as pointers to the key cases and Congressional reports (which are available on the book’s Web site). When I conducted a CLE course for non-copyright attorneys on copyright law in 1995, it became clear that there were a great many misunderstandings about this important subject. This book should help clear up those misunderstandings.

For those already knowledgeable in computer law and intellectual property, this book looks at some situations that have not been litigated or widely discussed, giving my views about how they should be treated under the law. You may disagree, but it should make you think.

Quoted Material

There is extensive use of quoted material in the book: statutes, legislative history, and court cases. This gives the reader the language of the actual statutes and the spirit of the cases. I’ve done some editing to make the quotations more readable, such as removing internal citations. If you are interested in the citations that I’ve removed, the context of the quotation, or anything else that has been edited out, the full text of the case is available on the Web site for this treatise: www.digital-law-online.info.

Some quotes are longer than one normally finds in a book like this, but they are the key thoughts in the seminal cases on digital intellectual property law, and rather than just paraphrase them I think it is important to hear the concepts in the court’s or Congress’s own words. But what I’ve quoted is just a small portion of each case or Congressional report, so you aren’t reading as much as you would find in a casebook but are still getting the courts’ and Congress’s own words on the key concepts.

Thanks

There are a number of people that deserve special thanks for their help to me in writing this book. First, my research assistants, Michelle Smith and Peter Donaldson, suggested a number of improvements to the text and recorded the comments of the students as we were trying out the material. They also did the initial editing for many of the cases and other material on the Web site. My son, Mark Hollaar, is now helping me edit the Web site material when he isn’t playing video games.

Ed Damich not only contributed the foreword to the book, but read and discussed the material on copyright with me. Ralph Oman also helped me with the copyright material, and Jeff Kushan helped with the patent material. The improvements to the original material are due to their help; any problems that remain are solely mine.

Many of my thoughts were refined through discussions with Ed, Ralph, and Jeff, as well as Randy Rader, Mike Fleming, Jon Band, Andy Greenberg, Hal Wegner, Chris Kelly, Bill Patry, Lloyd Sadler, Dan McCarthy, John Ogilvie, and many others who I apologize to for not mentioning by name. Special recognition goes to the students in my classes, who served as the guinea pigs for the early drafts of the book.

Jim Fattibene and Joe Dundin at BNA Books supported the idea of this book to accompany the Web site and were able to keep the pressure on me to get a finished manuscript to them. Their editing, forcing me to put in more footnotes than I would have and improve the use of quotations, has resulted in a better work.

Finally, Summit Law Group and Lineo provided important support for the development of this book and its Web site. Matt Harris and Ralph Palumbo recognized the importance of having this material widely available and made it possible.

Lee A. Hollaar

Salt Lake City, Utah

August 2002