Has the Computer Changed the Law?


David C. Tunick


VOL. XIII • Fall 1994 • NO. 1 (table of contents)

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The computer has caused changes to over forty areas of the law. While not exhaustive, the areas of law examined in this article show that computers have caused certain areas of the law to evolve while others remain virtually unchanged.

Computer use has not changed in the area of commercial law. Computer contracts can involve hardware, software or services. Whether the Uniform Commercial Code applies to acquisitions has been the subject of much litigation turning on whether the software is canned or custom. Courts analyze the custom software cases under existing tests including the "dominant element" test, the "end product tangible and moveable" test and the "bifiguration" test.

Tax law has not greatly changed because of computers. Canned software is treated as tangible and taxable. However, custom software is intangible and not taxable. Many states have developed specific legislation and regulations dealing with the taxability of computer software transactions.

Computers have not greatly altered patent law. Four United States Supreme Court cases dealing with patents and computers are examined in detail from which two themes emerge. These two themes do not reflect changes in the area of patent law arising from computers.

Copyright law has experienced dramatic changes from computer technology. In 1976, Congress created the National Commission on New Technological Uses of Copyrighted Works in an effort to recommend changes and revise United States copyright law. Two key changes to pre-computer copyright law and new legislation in response to computers are examined in detail.

In the area of Privacy law, computers have made a great impact. The accumulation of personal information in computer databases and government files pose a threat to privacy. Case law on this issue is analyzed. Federal privacy legislation, state privacy law and a detailed analysis of the California State Constitution are analyzed.

Extensive changes in criminal law have resulted from computer technology. The federal government and all states, with the exception of Vermont, have passed specific computer legislation. In addition to legislation aimed at preventing computer crime, the computer has been influential in criminal investigations.

Computer usage has led to the refinement of the Federal Rules of Evidence. These rules are interpreted and analyzed in light of changes caused by computer technology. The proper foundation requirements to support authenticity of computer evidence are determined by weighing six considerations that are examined in detail.

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