Recent Developments in Computer Law: An Update


Bradley J. Hulbert


VOL. XII • October 1993 • NO. 3 (table of contents)

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This article provides an overview of case law that had developed in 1993 relating to computers, summarizing cases in the following fourteen areas of the law:

1. Administrative - This section briefs a case holding that the Bush Administration's e-mail records fell within the scope of the Federal Records Act.

2. Anti-trust - This section includes: an overview of a case defining "sham" lawsuits and a summary of a case holding that a large software firm's supplier requirements may define a relevant market for an anti-trust analysis.

3. Civil Procedure - This section gives a brief summary of a case where a computer chip manufacturer withheld documents relating to its licensing agreements in a copyright infringement case, as well as a summary of a case holding that trade secrets must be defined with specificity in court orders.

4. Contracts - This section provides overviews of cases holding that: work stoppage by a software manufacturer may not constitute willful misconduct; a trademark infringement suit is not an "advertising injury' as used in general liability insurance policies; licensing provisions should be unambiguous; a failure to complain about malfunctioning software may estop a later suit; failure to pay a computer programmer is unlikely to be a "pattern of racketeering" under RICO.

5. Copyrights - The cases reviewed in this section hold that: a copyright owner's inability to produce the source code of which it asserts rights does not preclude a finding of copyright infringement and trade secret misappropriation; a computer program's use of unnecessary features is strong evidence of copying; where a user interface includes mostly uncopyrightable elements, infringement requires both access and "virtual identity"; not all "work-for-hire" factors are of equal importance; the creation of a basic video game is evidence of at least some creativity; reverse engineering of a video game console to develop a compatible cartridge may be fair use; reverse engineering of a computer chip, while condoned by statute, requires thorough documentation.

6. Criminal - This section's cases hold that: insufficient jury verdicts are insufficient to overturn a conviction; with a search warrant designating only computer hardware, the government may also search a computer's hard drive; unauthorized reception of cable television violates U.S. wiretap law; the felony status of infringement of a copyright on software relates to the retail value of the software; a longer term of imprisonment may be imposed where a computer programmer betrays a position of trust.

7. Employment relations - The cases in this section hold that: there is no action for age discrimination where the terminated employee had refused to utilize a new computer system; an ex-employee's covenant not to compete in the computer industry must be no broader than reasonably necessary for the protection of a legitimate business interest.

8. Foreign law - This section describes a United Kingdom high court decision that found copyright infringement of a computer program based on organizational similarities.

9. Patents - The cases described in this section hold that: technical information given by an inventor to a patent attorney my be privileged; patent rights may belong to an employer, pursuant to an employment agreement, even if the employee resigns before seeking a patent; the disclosure of a microprocessor, without the firmware used by the microprocessor, may be a sufficient description.

10. Privacy law - This section describes a Clinton administration proposal for voluntary encoding of telephone and computer transmissions.

11. Tax law - The cases the author cites in this section hold that a municipal sales tax may apply, even where computer equipment is both delivered to a common carrier and assembled outside of the relevant state; modified software may be considered "intangible property."

12. Trademarks - The cases described in this section hold that: prior sale, rather than prior sales activities, may give a user superior trademark rights; an application to register numerical marks based on an intent to use them is proper and may not be opposed as being descriptive unless a statement of use has been filed. This section also describes the U.S. Trademark Office's denial of a petition by Microsoft to register "Windows."

13. Trade regulation - The case in this section holds that the Lanham Act may empower a court to exert control over foreign subsidiaries of a party before the court.

14. Trade secrets - The cases in this section hold that: unless the owner of alleged trade secrets can identify valuable information that was not publicly available, there can be no claim for trade secret theft; a software licensee may be liable for misappropriation of trade secrets if it should have known that the licensor's software included the proprietary information of others.

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