15th class: Review session Computer Law 2018 15th class: Review session

Principles of contract law including contract formation State trade secret law and DTSA Copyright Act including DMCA Open source Patent Act with an emphasis on software as patent eligible subject matter Different business models for commercializing IT Digital exhaustion Rights and remedies format

Final exam: Time: 2 hours Open book: You may bring your hard copy course materials including hard copy notes you have prepared as well as approved laptops and software. Other electronic devices are prohibited from the exam. You may not view electronically stored versions of the course materials or your notes, and you may not cut-and-paste from them. You may not access the internet during the exam.

Review topic 1: How copyright applies to software - Abstraction filtration test for software

Copyright protects expressive works (not ideas) If you write a book – copyright applies to the actual sentences you write, not the idea of the story Copyright covers software as a literary work Software as an instruction manual

Software could instruct a computer to do many different functional things, e.g. spell check a document on your laptop, heat water in a coffee machine and pour hot water through a coffee pod to provide you with coffee, assist humans in building a car The expression is the actual source code where the instructions are spelled out for how to do the spell check, brew the coffee, or assemble the car Because software is a literary work under the Copyright Act, it gets same protections as traditional literary works get

Exclusive rights are not limited to literal expression – copyright also protects non-literal aspects (e.g. Friends/Big Bang Theory example) How to determine what the non-literal aspects of computer programs are? Computer programs don’t have characters. Altai case: abstraction, filtration, comparison.

Step 1 Abstraction: What is the basic function of the program? “Install car breaks” – Highest level of abstraction At this level, very limited if any creative expression No choices have been made on how the program is going to accomplish function of installing breaks Source Code – Lowest level of abstraction At this level, each line of code that runs to have a robot install breaks

Step 1 Abstraction: What are the modules of the program? “Lift break part”, “Insert break part” Still limited creative expression Few choices have been made on how the program is going to accomplish function of installing breaks Source Code – Lowest level of abstraction At this level, each line of code that runs to have a robot install breaks

Step 1 Abstraction: What are the specific steps of the “lift break part” module? “Lift break part by opening robot claw, move robot claw to position it right above the break part, lower robot claw, closing robot claw by applying just right amount of pressure so as not to damages the part but providing a grip tight enough not to drop the part or loose control over the part as it is inserted in the car” Some choices have been made on how the program is going to accomplish function of installing breaks Source Code – Lowest level of abstraction At this level, each line of code that runs to have a robot install breaks

Step 2 Filtration: You filter out unprotectable elements at each level of the program Should eliminate from comparison the unprotected elements of ideas, processes, facts, public domain information, merger material, scenes a faire material, expression that necessarily follow from a common theme or setting Merger = only way to express something (e.g. contest entry form) Scenes a faire = standard aspects of that kind of work (e.g. science fiction stories have first encounters with aliens) Certain content of an allegedly infringing program may have been dictated by external factors and not subject to copyright protection E.g. all software programs need lines of code at the beginning of the program that say “Hi, computer, I am a new program, please open me up and run me”. The fact that you also put those lines of code at the beginning of your program is just the way software has to work. That would come under the scenes a fair doctrine and would be “filtered out” at this second step of the Altai test.

Step 3 Comparison: After steps 1 and 2, you should be left with the creative, copyright-protectable aspects of a computer program And this is when you look at the allegedly infringing program to see if any of the copyrightable aspects of the first program is there – in which you would have a basis for a claim for copyright infringement Public domain material that is in both programs – no claim Scenes a faire material that is in both programs – no claim Merger material that is in both programs – no claim

Review topic 2: Trade Secret Law – steps of analysis

Is there a trade secret? Secret? Valuable? Efforts to keep secret? “(d) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” California civil code 3426.1

2. Misappropriation? (b) "Misappropriation" means: (1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (2) Disclosure or use of a trade secret of another without express or implied consent by a person who: (A) Used improper means to acquire knowledge of the trade secret; or (B) At the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was: (i) Derived from or through a person who had utilized improper means to acquire it; (ii) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (iii) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) Before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. California Civil Code 3426.1

Review topic 3: First Sale Doctrine

What elements are courts looking for to determine if a transaction qualifies as a sale making the recipient of a software copy its “owner” for purposes of Section 109(a) of the U.S. Copyright Act?

Sale vs. license considerations: Lump sum payment or recurring fee? If lump sum payment, more likely a sale. If recurring fee, more likely a license. Perpetual transfer of possession? If perpetual transfer, more likely a sale. If not perpetual transfer, more likely a license. License imposes notable use restrictions or no use restrictions? If no restrictions, more likely a sale. If notable use restrictions, more likely a license.

Class Dinner: When. Wednesday, May 24th at 6 pm Where Class Dinner: When? Wednesday, May 24th at 6 pm Where? 99 Walnut Avenue, Atherton, CA 94027 (house at the end of the street)