Software and Law – Jed Scully
Presented by: Diala T. Gammoh
eel6883 – Software Engineering II
Dr.Dalma Turgut
Agenda
Introduction to Software and Law
 The Ownership of Intellectual
Expression
 Software Copyright
 “Business Methods” Patents for
Software
 Additional Statutory Remedies for
Software Protection

2
Agenda
The law of Contracts, Protocols and
Private Agreements
 Future Developments for Software and
the Law, 2005 – 2010
 Summary and Conclusion

3
Introduction to Software and Law

A Definition of Software:
A software is a packaged set of electronic
instructions for performing certain tasks on
a computer hardware platform.

Culture and Legal Assumptions:
The idea of ownership is a cornerstone not
only for the American Society but all
modern, democratic nations and culture.
4
Introduction to Software and Law

The Concept of
Intellectual Property
The ability to separate
physical containers
from valuable
intellectual content is
at the root of the legal
rules that describe
and protect intellectual
property.
5
Introduction to Software and Law

The Concept of Intellectual Property
6
Introduction to Software and Law

The Role and Rule of Law
“rules under law” are enforced by the state
or the nation and any violations of these
rules might result in a serious penalties.

Jurisdiction and the Law
Controlling cyberspace transactions is very
problematic. Jurisdiction might control the
hardware that generate and receive
electronic data but digital transmission can
easily bypass these controls.
7
Introduction to Software and Law

Cyberspace, the internet and Intellectual
Properties Before Cyberspace:
John Perry Barlow-a lyricist for Grateful
Dead and one of founders of the Electronic
Frontier Foundation- refers to copyright as
the protection of the bottles, or containers
of fine wine rather than the protection of
the wine itself.
8
Introduction to Software and Law

After cyberspace:
Any person can and does distribute content,
regardless any ownership claims,
throughout the “click and send” effort and
without necessity of permissions or
agreements.
9
The ownership of Intellectual
Expression

The ownership of
Intellectual Expression:
Copy Right: is the legal protection of
expressive communication.
Patent Right: is the invention which
transforms “discovery”
to new and useful use.
10
Software Copyright


The components of copyright:
- Human communicative content
- Technology of transmitting an
authorial product to others
- Legally recognized economic and moral
rights of authors
- Methods for enforcing these rights
The term “software” suggests intellectual
expression rather than the particular format
in which that expression is embodied
11
Software Copyright

Traditionally, copyright defines legal rules,
expectations and remedies for software.
These classifications have lost much of their
definitional relevance with the emergence of
software systems as a means of
manipulating and transmitting data through
the internet.
Video Conference: Restoring the balance to
copyright Laws taken from www.youtube.com
http://www.youtube.com/watch?v=8BsfgTd2hYk
12
“Business Methods” Patents and
Software

A Brief History of Patent and Business
Methods Patents
Several points about patent should be
noted:
- A patent will not be issued for something
that is not new, novel or useful.
- A patent must be an improvement on the
technology or processes or on the natural
world and natural order of things that
already exists.
- It is “invention” not “discovery” .
13
“Business Methods” Patents and
Software

Scope of Protection for Software Patents:
A main issue faced by software developers
and programmers is to what extent may
one reference the ideas, abstractions and
concepts of a patent-protected software
system without infringement or violation.
Patent protection does not allow anyone to
use any part of protected invention without
permission or license.
14
“Business Methods” Patents and
Software

Scope of Protection for Software Patents:
It might be that copyright provides greater
levels of protection for “expression” even
though users may take advantage of the
“fair use” of aspects of a copyrighted
without permission
15
“Business Methods” Patents and
Software

Reverse Engineering and Encryption
They found that some of the patents and
copyrights need to be used by others for
analyzing and discussions such as Reverse
Engineering.
Courts have determined that the lawful use
of computers doesn’t constitute unlawful
decryption of protected software.
16
“Business Methods” Patents and
Software

Reverse Engineering and Encryption
However, there is continued legal
uncertainty as to the extent to which new
users can disassemble and reengineer
protected software.
Many observers feel that these restrictions
slow down innovation and the development
of new technological uses for encrypted
digital content.
17
Additional Statutory Remedies for
Software Protection

Trade Secrets:
It is any formulation, system, device,
pattern or compilation of information used
in business that gives the holder of the
trade secret a potential competitive
advantage in business.
Unauthorized disclosure might destroy the
trade secret’s value, but the person
responsible for the disclosure could be held
legally responsible.
18
Additional Statutory Remedies for
Software Protection

Trade Mark:
Is a means of
identifying and marking
the origin of goods,
including application
programs.
It is covered by both federal and state
law.
A registration system for trademarks
establishes the rights and priorities of
holders of a mark.
19
Additional Statutory Remedies for
Software Protection
Unfair Competition:
Trademark infringement is a form of unfair
competition, which also includes passing off
your goods or services as originating with
another producer.
 Moral Rights Protections
We usually refers to morality to standards
that are held by individuals, beliefs held by
religion or by particular culture or
community but which is not enforced by
laws.

20
Additional Statutory Remedies for
Software Protection

Moral Rights
Protections:
These moral rights
cannot be sold or
traded away because
they are inherent in
the act of authorship.

Tort Protection:
As a legal term refers to the violation of a
personal right for which a wrongdoer, might
be held responsible in a civil court for
money damages.
21
The Law of Contracts, Protocols,
and Private Agreements

Legal Contract is a promise or set of
promises that the law will enforce, usually
by imposing money damages for failure to
perform according to one’s promises.

Contracts can be between persons who
have no particular relationship with one
another.
22
The Law of Contracts, Protocols,
and Private Agreements

In addition to contracts, there are protocols
and methods of doing business that may
not be enforceable by of law and legal
system but regulate the conduct of persons
engaged in the same activity.

Handshake and verbal agreements are used
sometimes.
23
The Law of Contracts, Protocols,
and Private Agreements

The Modern “Law Merchant”
Law Merchant as a system of rules and
regulations recognized by traders as the law
for the regulation of their commercial
standards.
It has received renewed emphasis with the
borderless character of digital transactions
and the transfers of information and
commercially valuable software.
24
The Law of Contracts, Protocols,
and Private Agreements

The Modern “Law Merchant”
International commerce players also
established governmental courts and
tribunals that interpret and enforce these
agreements including the International
Chamber of Commerce in Paris, the
London Court of International
Arbitration, and the American
Arbitration Association.
25
The Law of Contracts, Protocols,
and Private Agreements

The Modern “Law Merchant”
The Example of Microsoft Monopoly of the
Browser.
Microsoft was trying to reach to a certain
business model that navigates among the
requirements of several national bodies like
the United States Department of Justice’s
Antitrust Division and the European Union.
26
The Law of Contracts, Protocols,
and Private Agreements

The Modern “Law Merchant”
It was only 15 years ago that the United
States agreed to join the Berne
Convention which provides the mechanism
for enforcing international copyright.
Through GATT, NAFTA and the World Trade
Organization, the United States has now
taken a leading role in developing
international enforcement mechanisms for
intellectual property.
27
The Law of Contracts, Protocols,
and Private Agreements

ADR, ODR and Statutory Enforcement of
Private Agreements:
Nation states and the international law
community established international
agencies such as the World Intellectual
Property Organization (WIPO), charged
with the enforcement of various
international treaties such as:
- ADR (Appropriate Dispute Resolution)
- ODR (Online Dispute Resolution)
28
The Law of Contracts, Protocols,
and Private Agreements

ADR, ODR and Statutory Enforcement of
Private Agreements:
ADR and ODR provides a broad set of
remedies for the resolution of software
ownership, use, dissemination issues.
“Appropriate” refers to the fact that the
parties to an agreements should have
latitude to decide on the mechanisms for
resolving issues that arise regarding the
enforcement of their agreements.
29
The Law of Contracts, Protocols,
and Private Agreements

ADR, ODR and Statutory Enforcement of
Private Agreements:
ODR simply refers to the fact that all or
portions of these mechanisms can take
place over the internet by synchronous or
asynchronous video conference.
The use of ADR and ODR as a substitute for
formal court trials is rising rapidly in
popularity in the United States.
30
The Law of Contracts, Protocols,
and Private Agreements

Domain Names and Cyber squatting:
There is a significant confusion over the
relationship between a URL domain name
on the Internet and a trademark for a good
or service.
ICANN is a private nonprofit agency
received the right to serve as the registrar
for domain names.
31
The Law of Contracts, Protocols,
and Private Agreements

Domain Names and Cyber squatting:
Difficulties arose because many entities that
had a reputational interest in a desired
trademark wished to carry that trade in
terms of a domain in the URL identifier on
the internet.
US law has moved to protect the invested
reputations of those who had valuable
trademarks because similarities are likely to
cause consumer or competitor confusion.
32
The Law of Contracts, Protocols,
and Private Agreements

Domain Names and Cyber squatting:
Congress also enacted an Anti cyber
squatting (registering an internet name for
the purpose of resetting it for a profit)
Consumer Protection Act .
33
Future Developments for Software
and the Law 2005-2010

Globalization and Jurisdiction:
- It is hard to make predictions for more
than 3-5 years into the future.
- Globalization will expand and national
jurisdictions will lessen in centrality and
importance as the traffic in digital
distribution of software increases.
34
Future Developments for Software
and the Law 2005-2010

Globalization and Jurisdiction:
- Treaties are of limited utility in controlling
electronic data flow.
- Global protocols and market-based
competitive solutions seem to offer better
options for realizing the full potential of
authorial software contents.
35
Future Developments for Software
and the Law 2005-2010

Continued Growth in Global Market-based
Solutions:
We expect greater growth and vitality in
private, market-driven, global protocols,
agreements and dispute resolution
mechanisms as global market software
players recreate a 21st century equivalent of
the “law merchant”.
36
Future Developments for Software
and the Law 2005-2010

The Power of Contract:
Contract does not depend only on the state
power but on the autonomy of private
individuals and groups who are committed
to the values inherent in honoring private
agreement.
37
Future Developments for Software
and the Law 2005-2010

Protecting and Innovation – Competing or
Complementary Concepts?
The best we can say is that innovation may
be temporary retarded by intellectual
property protections but significant
technological advance will be driven by
competitive global markets, not by
restrictions in nationally based intellectual
property statutes.
38
Future Developments for Software
and the Law 2005-2010

Protecting and Innovation – Competing or
Complementary Concepts?
An example is provided by the strength in
the development of open-source software
for computer operating systems, like Linux.
Global market players realize that computer
operating systems like alphabet and the
internet itself belong to the public domain,
free for anyone to use.
39
Summary and Conclusions

People interested in software, whether as
developers, designers or programmers
should have in mind a drop-down menu for
legal protections systems that should
include the following elements:
1- Copyright
2- Patent
3- Trademark
4- Contract
5- Jurisdiction
40
Summary and Conclusions
6- International law and compacts
7- Globalization
8- Other potential remedies, including moral
rights protections.
41
My Thoughts about the paper
It was a long paper .
 It mentioned lots of concepts related to the
software and law.
 I think it will be better if the mentioned
more examples about stealing software and
how the law will prove it.

42
References
http://www.cartoonsscott.com
 http://www.youtube.com

43
THANK YOU

44