Maureen A. O'Rourke

Is virtual trespass an apt analogy

more slowly than the conduct and the technology it is intended to regulate and by analogy. When parties argue that previously unheard-of behavior should generate some legal response, the relevant institution (generally Congress, the courts, or administrative agencies, such as the U.S. Patent and Trademark Office) often seeks guidance from past experience. Earlier decisions addressing a specific factual context give some confidence that applying the legal rules from these prior situations to the new fact pattern will produce a sensible result. But principles developed to deal with one set of facts can only imperfectly fit another. This imperfect fit often becomes more evident over time, sometimes raising the question of whether the initial analogy itself was valid. Legal doctrine may then evolve away from its first response to a new condition toward more specific rules reflecting an increased appreciation of the points at which the original analogy does not hold. For example, the U.S. courts that first addressed claims of software copyright infringement in the 1970s and 1980s and Congress, when it decided to include computer programs within the category of “literary works” under the Copyright Act, analogized writing computer programs to writing novels. However, over time, the courts began to have difficulty using this analogy to apply rules developed with books and manuscripts in mind to software. In particular, long-established law held that a novel’s plot, if sufficiently detailed, is protected by copyright. Courts found it difficult to translate this “old” law into the new context of computer programs in which the “plot” is much more difficult to see and understand. Additionally, market realities demand that other programs connect to the initial copyrighted one as, for example, Lotus 1-2-3 and Excel each run on top of Microsoft’s Windows. Moreover, any PC operating system that hopes for any chance of marketplace success must run at least the set of applications run by Windows, the dominant system. Achieving compatibility may necessarily result in similarities between the “plots” of the original and the compatible programs. Should a court hold the author of the later-developed program an infringer? Initially, the courts granted fairly broad protection to program structure. Over time though, as they began to appreciate how computer programs differ from traditional literary works and to understand the economics of the software industry, they developed IS VIRTUAL TRESPASS AN APT ANALOGY?

Principles of the law of software contracts

An overview of a new set of legal principles for software contracts developed by the American Law Institute.

Rethinking Consideration in the Electronic Age

Our fast-paced age of electronic agreements that ostensibly govern transactions as diverse as downloading software, ordering goods, and engaging in collaborative development projects raises questions regarding the suitability of contract law as the appropriate legal framework. While this question arises in many settings, we focus here on the free and open source software (FOSS) movement because of the maturity and success of its model and the ubiquity of its software. We explore in particular whether open source licenses are supported by consideration, and argue that they are, and that open source licenses are contracts. We further argue that a contractual framework working in tandem with the intellectual property laws is the appropriate legal structure to govern FOSS transactions. Our discussion holds implications for the understanding of consideration doctrine and contract law generally outside of the FOSS example and, indeed, for collaborative development and electronic agreements generally. The article is thus an exercise in understanding consideration doctrines past and future.

Defending Disclosure in Software Licensing

For lack of our imagination, this article does not have the most scintillating title. However, the subject matter is critically important. We survey prominent kinds of disclosures in law and show why the disclosure tool, though subject to substantial criticism, is central to the legitimacy of any legal regime. Our working example is the American Law Institute’s “Principles of the Law of Software Contracts” (hereinafter “ALI Principles”). The ALI Principles include three kinds of disclosure: disclosure of facts (concerning the quality of software), disclosure of terms (of standard forms), and disclosure of post-contract intentions (to pursue remote disablement of software). We take each up respectively in the three sections that follow and show how these forms of disclosure promote important social values and goals.