Cyberlaw and computer technology: a primer on the law of intellectual property protection.

• Author: Ellis, David R.

Internet! Computer networks and online systems! Today, we find a dizzying array of new technologies that are accessible to anyone with a computer, a modem, and a telephone line. As more and more Americans are plugging into the infrastructure of the "new information age," they encounter a variety of issues in "cyberspace" that have an impact on society, culture, and our legal system.

What are some of the legal issues in the online world? The law is developing at a rapid rate to embrace many traditional areas of law and apply these legal concepts to computers and cyberspace. These areas include issues of privacy, defamation and obscenity, intellectual property law, and crime. Many of these issues are being considered by Congress, state legislatures, government commissions, and private groups. For the first time, computer law cases are coming before the courts and decisions are being rendered by judges and juries.

One of the significant concerns about the online world is the threat of invasion of privacy through unauthorized access to data on individuals that are available on the nets. As early as the 1960s, Congress considered proposals for a national data bank that would have coordinated all kinds of information about individuals and businesses that had been gathered by the federal government. The outcry at the time was so great that the proposal was shelved. Since then, Congress has passed the Electronic Communications Privacy Act, 18 U.S.C. [Subsection]2701 et seq., and other laws to address threats to individual privacy.

Other issues of interest include the potential liability of operators of electronic bulletin boards and web sites for messages and material placed on their bulletin boards that are defamatory or obscene, or that infringe upon copyrights or trademarks. Cases involving Prodigy and Playboy have tested some of these issues and have produced precedents in the courts. There are also trademark issues such as who owns rights in Internet domain names.(1)

In addition, a host of potential criminal issues surround the use of computers, the Internet, and other online technologies. These issues include attempts to obtain unauthorized access to computers, networks, and data, denial of access to authorized users, stealing passwords, tampering with data, introducing worms and viruses into networks, and running criminal enterprises such as drug dealing, money laundering, and pornography. Federal, state, and local governments have passed a variety of laws over the years to govern electronic and computer crime, but these laws have to be constantly reviewed and updated to keep up with current technology. Florida's computer crime statute, F.S. Ch. 815, for example, was enacted in 1978, and has not been amended significantly since. In addition, law enforcement officials are often far behind the technology and need to be updated frequently to the current state of the art in order to understand the technology and prosecute those who misuse it.

One of the most important areas of concern is the protection of intellectual property. In 1995, the Working Group on Intellectual Property Rights of the Task Force Information Infrastructure, a federally supported commission, published a report addressing these issues. Entitled "Intellectual Property and the National Information Infrastructure,"(2) the report discussed copyrights, patents, trademarks, and trade secrets, technology issues such as user access and security, and made recommendations for future legislation and regulation.(3) A bill based on the report was introduced in Congress but was not passed after hearings disclosed serious disagreements between users and providers over the direction national policy should take.(4)

Conflict over the scope of protection for intellectual property has long existed in literary, artistic, and entertainment fields, and is now being extended to the new technologies. Creators of intellectual property seek the broadest possible protection for their endeavors in order to exploit their creations and secure economic returns on their intellectual investments. Users, on the other hand, seek narrow protection so that they can have the freedom to use others' creations with few restrictions. This natural tension informs the debate over the scope of protection of computer technology and cyberspace, the legal rules of which are governed primarily by the law of copyrights, trade secrets, trademarks, and patents.

Copyrights

Perhaps the most important method of protecting computer technology is through the law of copyrights, a statutory scheme of protection dating back almost 200 years in this country to the Constitution. Although Franklin, Madison, and Hamilton did not have personal computers at their disposal, they established a concept of protection for authors and inventors by granting them exclusive rights in their writings and discoveries for limited periods of time.(5) Congress enacted the present Copyright Act in 1976, 17 U.S.C. [Subsection]101 et seq., and clearly extended protection to computer programs in 1980.(6) Under the law the author of a copyrighted computer program has the exclusive right to reproduce and distribute the program and any derivative versions, and to authorize others to do so during the term of the copyright (lifetime...