law of computer technology fall 2015 © 2015 michael i. shamos law of computer technology 08-732,...

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS

Law of Computer Technology08-732, 08-632, 08-532

Michael I. Shamos, Ph.D., J.D.Institute for Software ResearchSchool of Computer ScienceCarnegie Mellon University


Course Outline

• Legal process – how courts work (6 classes)• Evidence – how facts are proven (2)• Electronic business – software licenses and

electronic transations (2)• Personal intrusions – privacy, defamation (2)• Intellectual Property – trade secrets, copyright,

patent, domain names (11)• Government regulation – taxes, technology

monopolies (2)• Computer crime (2)


Course Administration

• 27 classes, TH 9:00 – 10:20, Baker A51• Classes may occasionally be postponed for legal

necessity. Makeups will be scheduled if necessary.• No textbook – Internet readings only• Grading

– Homework (40%)• 3 homeworks for 08-732, 2 for 08-532,1 for 08-632

– Final exam (50%)– Class participation (10%)


Michael Shamos

• C.S. Ph.D. (Yale), 1978. Computational Geometry

• J.D. (Duquesne), 1981• CMU faculty since 1975• Examiner of electronic voting systems for

Pennsylvania, 1980-• Pennsylvania Bar & Patent Bar, 1981-• U.S. Supreme Court Bar, 1986 -• Full-time legal practice, 1990-1998• Director, CMU eBusiness programs, 1999-• Expert witness in >190 technology cases


Lecture 1:The Legal Process: Courts


Example: European UnionDistance Selling Directive (U.K. Version)

• Selling goods or service to consumers via Internet• Vendor must

– give clear information about the goods or services offered – send consumer a confirmation – consumer has 7 working days to cancel for any reason

(exceptions for certain items, such as time-value services)

• Suppose– The vendor is in the U.S. (e.g. Office Depot)– Consumer is in the U.K. What’s a consumer?

• Can the consumer cancel?• Suppose he does. Can the vendor enforce the sale?

Where?


The Legal Process

• Function of law: prevent and resolve disputes– Provide predictability in human affairs– Express the will of the legislature– Promote “fairness,” “justice,” “equality”– Prevent “self-help,” violence– Promote confidence in the judicial process

• The structure and functioning of courts is VERY COMPLICATED

• Legal reasoning is NOT OBVIOUS• Many smart people don’t understand it• Many of them are lawyers and judges


Role of Logic in Law

• Oliver Wendell Holmes:– 20 years Massachusetts Supreme Court– 30 years U.S. Supreme Court

• Opening sentences of his Lowell Lectures at Harvard University,1880:

• “The life of the law has not been logic; it has been experience. … The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”


U.S. Balance of Powers

JUDICIARY:INTERPRETS LAWS

EXECUTIVE:ENFORCES LAWSLEGISLATURE:

MAKES LAWS

U.S. Constitution + Treaties

Making Federal Law

State systems are similar

SOURCE: UCLA SCHOOL OF LAW

U.S. COURT SYSTEM

U.S. SUPREMECOURT

CIRCUITCOURTS OF

APPEALS (13)

U.S. DISTRICTCOURTS (94)

“SPECIAL”COURTS OF

APPEALS

CASES

APPEAL BYPETITION

APPEAL AS OF RIGHT

FEDERALCOURTS

SOMEFEDERALAGENCYAPPEALS

SPECIAL(e.g. PATENT

OFFICE)APPEALS

ORIGINALJURISDICTION

ORIGINALJURISDICTION

AGENCY APPEALS

CIVIL APPEALS

CRIMINAL APPEALS

STATE SUPREMECOURTS

COURT OFAPPEALS

TRIALCOURTS

(CRIMINAL)

COURT OFAPPEALS

TRIALCOURTS(CIVIL)

CONSTITUTIONALAPPEALS ONLY

APPEAL BYPETITION

APPEAL ASOF RIGHT

REMOVAL

STATECOURTS

(SEVERALDIFFERENT

TYPES)


The Federal CourtsSUPREME COURT (1)COURTS OF APPEALS (13)DISTRICT COURTS (94)

CIRCUIT

CIRCUIT

Precedent• Courts rely on “precedent” (decide the same question the same way

each time)

– Anglo-American concept; promotes predictability

• Stare decisis (“let the decision stand”)“It is . . . a fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current justices. This policy . . . ‘is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law’.” Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 296.


Precedent

• Courts must follow decisions of higher courts in their appellate chain

• Court almost always follow their own prior decisions– Some impose hurdles to overruling themselves

• Courts usually follow decisions of courts at the same level on the same facts and law

• Courts sometimes follow the reasoning of courts in other countries having the same legal tradition

• Courts consider the reasoning used by lower courts• For a decision to have any value as precedent, there

must be a written opinion


Appeals• Appeals are based on the record of the lower court,

including transcripts of testimony and exhibits

• Matters of law are reviewed “de novo” (anew). Appeals court is not bound by the lower court’s view of the law.

• Example: lower court decides that the word “computer” in a statute does not include cellphones. Review will be de novo.

• Matters of fact are not disturbed unless “clearly erroneous”

• U.S. Supreme Court is special. See U.S. Const., Art. III, Sec. 2


Enforcement• Courts issue orders and judgments

• Orders (commands that must be obeyed)– Injunctions, seizure orders – enforced by court via sheriff

(state) or marshals (federal)

• Judgments (declaration of rights)– A owes B money

– C, not D, is the true owner of a copyright

– D’s license has expired and D must stop using the software

– Enforced by the marshal (federal) or sheriff (county)

• A doesn’t pay: marshal takes his assets

• D doesn’t stop: marshal puts D in jail


U.S. Marshals Service

• The U.S. Marshals Service (part of the Department of Justice) enforces orders of the federal courts

• Each judicial district has one U.S. marshal (Senate confirmation appointment) and many deputies

• Marshals also hunt fugitives and protect judges

• Marshals have the extraordinary power of posse comitatus (“power of the county”), power to command citizens to assist them (See 28 U.S.C. §566).

• Important role in seizing goods that infringe copyrights and trademarks


National A-1 Advertising v. Network Solutions

• In 1999, Lynn Halberstrom, a New Hampshire resident, and National A-1 wanted to register racy domain names such as “tits.com.”

• Network Solutions, the registrar appointed by the government, refused that one and 5 others

• National A-1 had 22 names rejected

• National A-1 and Halberstrom sued primarily on First Amendment free speech grounds

• Whom should they sue and where?


Volume 121Federal Supplement, Second Series (District Courts)Page 156

Court Who brought the case

Abstract(Summary) Date of Decision

Result

Who opposes the caseCase #

Caption


National A-1 Advertising v. Network Solutions

• Network Solutions (NSI) was a registrar of domain names. It refused to register “tits.com”

• National Science Foundation had awarded NSI the right to act as registrar

• David Graves was Director of Business Affairs of NSI• James Rutt was the CEO of NSI• Who were John and Jane Doe?


Structure of an Opinion

• Caption (lists the parties)• Background (factual setting)• Legal principles binding the court• Analysis of each contention• Result and order

• Dissenting opinion, if any

– Applies to multi-judge appellate courts, such as the

Circuit Courts of Appeals and the Supreme Court


Major Ideas

• People resort to courts when they fail to solve problems by themselves

• They pay for this failure with time, money and annoyance

• Courts implement a slow but deliberate decision-making process based extensively on precedent

• Courts do not investigate – they base decisions on material presented to them

• Bad court decisions are ALMOST ALWAYS the result of bad advocacy by attorneys


QA&

law of computer technology fall 2015 © 2015 michael i. shamos law of computer technology 08-732,...

Documents

computer crime

technology monopolies

consumer cancel

pennsylvania bar patent

confirmation consumer

legal necessity

supreme court bar

electronic transations