Vol. 10 No. 3 (March 2000) pp. 217-220.

LEGAL BATTLES THAT SHAPED THE COMPUTER INDUSTRY by Lawrence D. Graham. Westport, CT: Quorum Books, 1999. 251pp.

Reviewed by Micah Altman, Department of Government, Harvard University.

How should Judge Jackson have ruled in the UNITED STATES v. MICROSOFT (1999) antitrust case? Should search engines be liable for infringement if they link to copyrighted materials? Are the "cookies" stored in the web-browsers of government officials' part of the public record? Is cryptographic software actually "speech" protected by the first amendment? Legal questions arising from computer and information law are increasingly common, and increasingly political.

In LEGAL BATTLES THAT SHAPED THE COMPUTER INDUSTRY, Lawrence Graham outlines some of the significant legal cases that have shaped the development of the computer industry, and which set the background to these more current questions. Professor Graham practices intellectual property law, and he writes from a legal perspective. The book, however, according to the author's preface, is intended for practitioners in the computer industry. The substance of the book comprises a pair of short introductory chapters, a brief overview of criminal law, nineteen short essays addressing different topics in civil law, and a perfunctory conclusion. The lion's share of these chapters address different aspects of computer-related intellectual property law, each one discussing how a different product or activity is subject to copyright, patent, and trademark protection. A scattering of chapters addresses other topics, such as liability for repetitive stress injuries caused by computer keyboards, and enforceability of shrink-wrap licenses. Each chapter stands almost completely by itself. Each outlines a single lawsuit (or a small number of related lawsuits), provides a brief history of it, outlines the courts' decisions in the case, and finishes with a page-length recap of the case and of current law. LEGAL BATTLE'S strength is in its choice and presentation of cases. Each case is foundational and bears directly on some aspect of intellectual property law. Each chapter gently places the reader in the context of the case, outlines the court's decisions clearly and without using legal jargon, and succinctly summarizes the case. Furthermore, since each chapter stands on its own, an instructor could easily assign individual chapters as supplemental reading.

Practitioners in this industry, and other readers in general may find the coverage of issues idiosyncratic. Given the authors interest in legal issues shaping the industry, one might have expected some attention to, or at least acknowledgement of, other important battles in this industry: Why do battles over the export of encryption technology, state and national jurisdiction over content, taxes and other activity (such as gambling) on the internet, data privacy, and monopoly power over operating system

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development fail to merit the author's attention? Even more puzzling, given the author's expertise in the field of intellectual property, is the books lack of attention to web-related intellectual property issues. Do linking and framing violate copyright? Does "fair use" protect the caching of web pages, the temporary downloading of data files (e.g. for use in MP3-based audioplayers), or the conversion of proprietary data formats? Is a trademark holder protected against others using its trademark in a meta-tag to attract search engines to their sites?

As Graham covers the same ground as and targets much of the same audience as Jonathan Rosenoer's CYBERLAW: THE LAW OF THE INTERNET (1997), a comparison is inevitable. Although LEGAL BATTLES provides self-contained studies of individual cases, CYBERLAW is arranged topically, providing a larger number of references to relevant cases, but studying fewer in depth. Although LEGAL BATTLES focuses almost exclusively on commercial intellectual property CYBERLAW covers a much broader range of topics, including: privacy, duty of care, free speech, and jurisdiction. Finally, while Graham devotes considerable time to early cases, such as KARATE CHAMP (DATA EAST v. EPYX 1988) that were important to the development of the law in this area, Rosenoer chooses to summarize the current state of the law, and examine particular cases at length only where the law is unsettled. Practitioner's wishing only to know the current state of the law may prefer Rosenoer's approach, but those with an interest in the development of the law may also take an interest in LEGAL BATTLES.

Graham focuses exclusively on summarizing legal decisions and their impact on the industry. By doing so, Graham misses opportunities to examine the political causes and implications of the legal cases that he describes, and to discuss how law should be adapted to the new technological environment: To what extent has industry lobbying influenced Congress in making changes to copyright and trademark laws? How has the Internet been incorporated into politics? Should "Netiquette" and other on-line community norms be developed into an Internet version of common-law? Graham skirts a number of these questions, but remains essentially apolitical throughout. Those readers who are interested in investigations of the shortcomings of current computer law, and in proposals for the application of new principles of law in this area, may wish to turn instead to the more academic and policy-oriented BORDERS IN CYBERSPACE (Kahin and Nesson, 1997). Each chapter in Graham's work is clearly presented, in and of itself. Unfortunately, however, when one read the book as a whole, the independence of the chapters, and the author's organization of them, becomes problematic. Since the organization of the book requires that each chapter summarize the case history, issues, and precedents, the author is forced into repetition that is often inelegant and sometimes confusing. He explicates some legal terms (such as "injunction") several times, and tends to describe rules (such as "fair use") and cases, such as LOTUS v. BORLAND (1998), that were visited earlier in the text. In addition, the author's summary of precedent for each case tends to be significantly influenced by the judge's summary of precedent in that case, and cases are sometimes presented out of chronological order (see below). The overall effect recalls the film RASHOMON. The reader encounters the same case, seen by different eyes at different times, and is

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ultimately left to resolve the contradictions of the various perspectives himself.

For example, in chapter nine, which discusses data entry formats, we are told (as background to the discussion of that chapter's case, EDI v. STRUCTURAL SOFTWARE, INC. 1991), that "the courts have agreed that both the source and the object code are protectable." In the following chapter, which addresses operating systems, the central case, APPLE v. FRANKLIN (1982), revolves around just this question - and we are told that the trial court in this case initially determines that object code is NOT protectable. To readers who failed to keep an independent chronology, this would be puzzling: Why would the trial court reverse precedent in this area? In fact, the APPLE case precedes EDI, and, in some ways, sets the context for it. The main source of trouble is that Professor Graham has not provided organizational structures that would bridge these separate topics, orient the reader, and support his thesis. For example, a number of ideas reoccur in the chapters dealing with copyright: the "extrinsic-intrinsic" (59, 90) test, the distinction between IDEA and EXPRESSION (pp. 29, 56, 82, 91), and the various interpretations of "fair use" (pp. 104,115). Graham misses an opportunity to make his book more coherent by failing to trace these themes through the chapters.

Graham states in his introduction to the book that, "the lack of specific computer laws forced judges to . [resolve computer disputes] in make-shift fashion, leading to awkward, uneven applications of law." This assertion might well be accurate. However, since Graham does not compare many of these cases or trace the various applications of the underlying legal principles, he leaves it up to the reader to make the case for him. When Lawrence concludes, as he began, that "it is often difficult, if not impossible, to make sense of many legal decisions affecting the computer industry . [because] judges have been given awkward and inadequate tools to make clear and proper legal decisions," the reader is left to question: Are the apparent inconsistencies presented in the book the result of contradictory legal principles, uneven application of the law, or a failure of the book to synthesize the cases presented? Nevertheless, LEGAL BATTLES is a readable and concise volume aptly summarizing important cases involving intellectual property disputes in the computer industry. Those wishing an easily digestible introduction to these cases, or short supplementary readings for an introductory undergraduate class should thank Professor Graham.

REFERENCES:

Kahin, Brian and Charles Nesson, Eds.,1997. BORDERS IN CYBERSPACE : INFORMATION POLICY AND THE GLOBAL INFORMATION INFRASTRUCTURE . Cambridge, MA: MIT Press.

Rosenoer, Jonathan. 1997. CYBERLAW: THE LAW OF THE INTERNET. New York: Springer Verlag.

CASE REFERENCES:

APPLE COMPUTER, INC. v. FRANKLIN COMPUTER CORP., 545 F. Supp. 812 (E.D. Pa. 1982), rev. & remanded 714 F.2d 1240 (4th Cir. 1983).

DATA EAST USA, INC. v. EPYX, INC., 862 F.2d 204 (9th Cir. 1988).

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ENGINEERING DYNAMICS, INC. (EDI) v. STRUCTURAL SOFTWARE, INC., 785 F. Supp.576 (E. D. La. 1991).

LOTUS DEVELOPMENT CORP. v. BORLAND INTERNATIONAL, INC., 140 F.3d 70 (1st Cir.1998).

UNITED STATES, v. MICROSOFT CORPORATION, 65 F. Supp. 2d 1 (1999).