The Legal Status of Software
Law & Forensics; Benjamin N. Cardozo School of Law
John Marshall Journal of Computer & Information Law, Forthcoming
The objective of this guide is not to give a judge a PhD in computer science, but rather, to ensure that judicial decisions reflect an understanding of software's multiple facets and its relation to the boundaries of the law. When hearing legal arguments involving software, the judiciary should make a concerted effort to examine the software program's production methodology and intended purpose prior to issuing legal decisions because the decisions should reflect an in depth understanding of the product at issue. A court involved in litigation fraught with software themes should understand the software itself to ensure the delivery of fair and equitable legal decisions.
In the legal arena, judges should review software from different perspectives based on the legal issue before the court. For instance, a court hearing an anti-trust dispute, for example, should not be concerned with whether the software vendor tested the software sufficiently prior to introducing it to market, but rather with the software's intended and actual market effects. In a product liability suit, however, such testing would be a significant issue of judicial inquiry for the court. These examples demonstrate that judges should possess a broad general understanding of software, and should then refine their knowledge based on specific legal issues that are brought before the court. This reference guide, therefore, is designed to provide a high-level overview of software and then examines software in greater depth for specific legal areas likely to spawn legal disputes directly involving software.
I hope that the explanations provided will enable judges and lawyers who deal with software to understand the terminology, context and legal doctrines governing software in legal disputes. The reference guide is organized as follows:
Section II provides a brief overview of the current legal framework that is evolving with respect to software development. It describes the software development trend of coding to skirt the law and avoid liability, examining the recent Supreme Court ruling in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.
Section III provides a broad overview of software. It presents multiple facets of software and offers a guide of the various components involved in software, including: software development methods, software design, and a high-level overview of programming.
Section IV provides a series of tutorials on cutting edge technology that is going to appear before judges with greater frequency in the coming years, including: Voice Over Internet Protocol Telephony, Internet Cookies, Spyware, and Clickstream Data.
Section V presents a topical guide to various legal areas and analyzes the current legal framework and presents specific questions that a judge hearing arguments may consider. These different legal areas were singled out because of the complex legal nature and the unique aspects of software that are involved when the matter is before a court.
Keywords: software, intellectual property, copyright, napster, grokster
JEL Classification: K20, K21, K22, K23, K00, K30, K29
Date posted: June 14, 2006 ; Last revised: May 14, 2014