The Preface of this book states that “The tremendous growth in the use of computers has brought with it problems, confusions, apprehensions, and difficulties. . . . [C]hallenges to traditional legal interpretations in such areas as contracts, property, patent and copyright protection, antitrust, and crime have emerged.”
The objective of the book is to throw some light on these subjects. Chapter 1, The Language Gap, attempts in seven pages to clarify what the authors rightly regard as a major impediment to the evolution of sound legal practices, namely, the semantic confusion of the computer world’s terminology. On occasion, this is a problem even for computer people; it is always a source of confusion to legal folk. However, if the contents of Chapter 1 assist in clarifying this confusion for lawyers, then they are indeed in a lot of trouble. (Reference to “an output source” is not going to decrease the existing confusion factor.)
The other chapters cover the following:
(2) Contractual Implications.
(3) Buying and Selling Computer Hardware.
(4) Buying and Selling Computer Software.
(5) Warranties.
(6) Protecting the Product.
(7) Antitrust and Product Protection--An Overview.
(8) Personal Liabilities--Contractual.
(9) Personal Liabilities--Strict Liability and Negligence.
(10) Computer Security.
(11) Computer-Assisted Crime.
(12) What’s Ahead in the Computer Law Field.
Other issues, such as transborder data flows, which have companies with international connections and their host countries worried, are excluded. At the outset, the authors state: “It is not the intent of this book to make the reader an expert in the law of contracts, but rather to help him or her recognize some of the important rules of the game.” Fair enough] However, if the reader has no legal background, he (or, indeed, she) is also in a lot of trouble. If computer terminology is confusing to legal types, legal terminology is impenetrable to computer types. The chapters include enough unexplained legal concepts (plus some that are explained but using other, still confusing, terms) that the neophyte may well conclude this book is not what he needs to disperse the legal mists.
Perhaps it is necessary to reposition one’s mindset. Technical computer people are very free with their technical terminology: adding to it as necessary, excusing ambiguity on the grounds that the field is rapidly advancing, and revising it in the interests of improved clarity and classification. Other disciplines, of which the law is one, are regarded as pedestrian and slow to develop; therefore, the expectation is that the terminology should be understandable. There is, of course, a certain technical arrogance in this attitude. But there is also a certain legitimate expectation which is not fulfilled in this book, namely, that the subject matter be explained so that a nonlegal person can be enlightened.
One difficulty is made clear by the authors. The legal profession is endeavoring to apply to the computer field a body of doctrine which was evolved in other contexts. The law proceeds from principle to precedent. Where the legal object under scrutiny does not have the characteristics of the legal object which was the basis for the existing statutes, the law has to seek to make adjustments, set new precedents, even evolve new instruments.
In particular, the notion of software presents special difficulty. Since “software” in one of its many forms is essential to the performance of “hardware,” it may be the source of failures to satisfy the customer’s expectations. The salesman may have “oversold” his product by claiming that the hardware-software combination can perform in ways which are later perceived to be exaggerated. How to defend against such selling tactics? Chapter 3 provides some common sense suggestions based on making sure that the contract wording includes all of the customer’s expectations.
On the other hand, the business computer is at least 30 years old, depending on how you count, and vendor/customer contracts have been written throughout that period. It seems unlikely that the average customer is as naive or as uninformed as these chapters seem to imply. Not many business-oriented dataprocessing managers “go it alone legally” in these days. The larger organizations have appropriately qualified, in-house legal counsel. For smaller firms such counsel can be retained. As of January 1986, the computer law division of the American Bar Association’s section on sciences and technology numbered approximately 800 attorneys.
Chapter 6, Protecting the Product, discusses copyrights, patents, trademarks, trade secrets, and licenses. The chapter is illustrative of the legal profession’s difficulties. Copyrighting initially was regarded as protecting the “tangible form” of the program, rather than the idea or concept of the program. This led to anomalous judgments based on the contention that a copyright which protected the source code did not protect the object code.
This book should not be read with an expectation that the legal aspects of computing will be clarified and set in place. Instead, more can be gleaned from it as an exploration of how one profession has struggled with the needs of another, rapidly evolving, and radically unusual profession. Some of the book is written in this vein; much of it is not.
The text needs editing. On p. 103, reference is made to the concept of “dealer in the ordinary cause or trade” which probably should read “course of trade.” On p. 117, computer abuse is defined as the “broad range of international acts involving a computer. . . ” which probably should read “broad range of intentional acts.” The assertion on p. 132 that “Obviously, until society accepts that misuse of computer hardware and software is wrong, it will continue at exponential rates of development. . . ” is unwarranted, unsupported, and unnecessary. Computer folk make such statements from time to time; legal eagles should know better.
