Tues/Thurs, 12:30-2:00 PM
110 South Hall
311 South Hall
Office Hours: Thursdays, 3:00-5:00 or by appointment
Off-campus Office Phone: (510) 526-9547
There is no ancient and abstract principle of right and wrong, which can safely be deduced as a guide to regulate the relations of railways and monopolies among our people, because railways and monopolies are products of forces unknown in former times. The character of competition has changed, and the law must change to meet it, or collapse.
Brooks Adams, "Nature of Law: Methods and Aims of Legal Education" (1906)
The Congress shall have power…to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
The intersection of law and technology has always been accident-prone. The slow, evolutionary pace of law regularly collides with the ever-accelerating introduction of new technologies, which have a natural tendency to cause disruption in social, economic, and political relations.
As the world hurtles toward an information-based economy, the tension between the two has reached a breaking point.
This course introduces one of today’s flashpoints for this difficult relationship: the law of intellectual property. Or perhaps, we might conclude, the “law” of “intellectual” “property,” for each element of what was once a sleepy legal backwater has become a topic of fierce debate, not all of it cordial, and not all of it involving legal academics. Today, intellectual property law is the subject of demonstrations, acts of sabotage, mass civil disobedience, bitterly fought Supreme Court cases, intense lobbying, litigation, and legislating. By and large it is digital technology that has ignited these political flames.
The course has two objectives:
(1) Positivist – Introduce as objectively as possible the main features of the law of intellectual property, including trade secrets, copyrights, patents, trademarks, and licensing. The particular emphasis in each of these areas will be the rapidly evolving (some would say mutating) jurisprudence of each of these sub-fields of IP law as they relate to digital technology. The goal here will be to make you fluent in the language of IP law conversations, which will, I hope, serve you in your future professional and academic work.
(2) Normative – Explore some of the major issues that consume IP’s interested parties today, and try to reach some conclusion as to how these problems ought to be resolved, both in the macro (methodology, organizing principle) and micro sense (individual issues).
The text for this course is Mark A. Lemley, Peter S. Menell, Robert P. Merges, and Pamela Samuelson, Software and Internet Law (2d ed. 2003 Aspen Publishers). We will supplement the text with more detailed readings and with “current events” as they arise in the course of the semester. The book has its own website for updates, see http://www.law.berkeley.edu/institutes/bclt/pubs/swbook/, of which we will also make use.
Grades will be based on a midterm exam and a final paper, as well as class participation and attendance:
§ Final paper - 50% of grade. The final paper will give you the opportunity to explore a current problem in IP law using the tools provided during the class. More details on the paper will be available in the second week of class.
§ Class Participation/Instructor Discretion – 20% of grade.
I encourage you to begin immediately to track developments in IP law that are directly relevant to class. There are many excellent sources to do so, including:
The Wall Street Journal – You can register for daily headlines on technology stories. There is an IP law related story nearly every day.
The New York Times – Another source for daily news.
CNET – CNET’s daily newsletters also have IP law stories nearly every day.
Electronic Frontier Foundation – A vast collection of new materials and archives of law and technology issues, including IP problems.
The Center for Democracy and Policy – Another Law and Technology action group.
Lessig’s Blog – Professor Lessig of Stanford’s blog (with guest stars) covers a wide range of IP law problems related to digital technology.
Creative Commons – A non-profit corporation established to try easing many of the problems we will explore in class.
The Berkman Center for Internet and Society – Harvard Law School’s Internet Law Project
Stanford Law School Center for Internet and Society – Stanford University’s Internet Law Project
Rules of the Road
I expect the following basic rules are agreed among us:
5. You and I will respect each other by eating and drinking in class only if absolutely necessary and in a civilized way that our families would not be ashamed to watch.
6. You and I will discuss any problems with the course or course materials as soon as we become aware of them. Problems can be raised in class or in private as is most appropriate.
Aug. 31 Introduction – Frontiers, Economics, and Other Frauds See note.
Sept. 2 The Eldred Decision See note.
Sept. 7 Secrecy and Disclosure 1-20
Sept. 9 Misappropriation and Reverse Engineering 20-31
Sept. 14 Copyright for Computer Software 33-38
Sept. 16 Altai Test for Infringement 39-58
Sept. 21 Functional Elements and Protocols 58-76
Sept. 23 Displays and User Interface 76-94
Sept. 28 Copies and Derivative Works 94-108
Sept. 30 Fair Use 109-122
Oct. 5 Reverse Engineering 122-139
Oct. 7 Copyright Misuse 139-148
Oct. 12 Algorithms 149-181
Oct. 14 Business Methods 181-188
Oct. 19 Examination and Validity 188-213
Oct. 21 Infringement; Design Patent for Software 213-229
Oct. 26 Trademark for Programs 229-236
Oct. 28 Compatibility, Standardization, Lockouts 236-260
Nov. 2 MID-TERM EXAM (In Class)
Nov. 4 License vs. Sale 299-317
Nov. 9 Implications of License v. Sale 317-324
Nov. 11 NO CLASS – VETERAN’S DAY
Nov. 16 Enforcement of “X”wrap Licenses 325-355
Nov. 18 Self-Help and Warranties 355-363
Nov. 23 Contract-IP Boundary Issues 363-375
Nov. 25 NO CLASS – THANKSGIVING DAY
Nov. 30 Open Source Licensing and Consulting Agreements 375-385
V. IP IN CYBERSPACE CURRENT EVENTS
Dec. 2, 7, 9 Trademark/Domain Name Disputes: Cybersquatting
Copyright Infringement in Cyberspace
Vicarious Liability: “Service” Providers
Copyright and Technical Protection Systems
 Over the first two weeks of classes, please skim the original first chapter of the text, available on the book’s website at http://www.law.berkeley.edu/institutes/bclt/pubs/swbook/. Depending on your background, some or all of the material in the first chapter will provide excellent background in the technology, the economics of networks, and/or the basis of IP law.
 Reading for this class is Eldred v. Ashcroft, 537 U.S. 186 (2003). Available in PDF form for free (Why free? Why PDF?) at http://www.supremecourtus.gov/opinions/02pdf/01-618.pdf. I would like you to read the entire document, including the two dissenting opinions. I realize this is a large assignment, and if your time is limited focus on the dissents by Justice Stevens and Justice Breyer.
 Tentative. We may substitute some/all of these topics for more current issues depending on class interest and current events.