Singularity Law

Ralph Waldo Emerson is quoted as saying: “A foolish consistency is the hobgoblin of little minds.” Ralph Waldo Emerson, “Self Reliance,” reprinted in Self-Reliance and Other Essays (Dover Thrift Eds. 1993). Consistency, whether foolish or not, is something that business people rely upon in making long-term decisions. Unfortunately, consistency has not been the order of the day on many issues of cyber law.

Of course, this is nothing new. When the computer law field was just getting started, the courts were all over the place on many significant issues – such as where to draw the line between protectable expression and unprotectable ideas under copyright law. Such cases as Whelan v. Jaslow [Whelan Assoc. v. Jaslow Dental Lab, Inc., 797 F.2d 1222, 230 U.S.P.Q. (BNA) 481 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987)] and the lower court decision in Lotus v. Borland [Lotus Development Corp. v. Borland Int’l, Inc., 831 F. Supp. 202, 30 U.S.P.Q.2d (BNA) 1081 (D. Mass. 1993), rev’d, 49 F.3d 807, 34 U.S.P.Q.2d (BNA) 1014 (1st Cir. 1995), aff’d by equally divided court, 516 U.S. 233 (1996)] created significant uncertainties as to what aspects of computer software could be protected by copyright. Those decisions caused much consternation in the software development field, particularity for those who were developing competitive software for popular applications. While the courts finally sorted out the issues, a number of promising start-ups were unable to get funding and some established software developers shied away from developing compatible applications due to the fear of litigation.

There are many examples of different courts providing different decisions in the cyber law field. For example, the courts are split on whether a search engine’s sale of trademarked terms as keywords is a “use in commerce,” and therefore a trademark infringement, or not. While not important for most of us, it can be a key issue in whether a new search engine company gets funding, or whether investors buy or sell Google stock.

Consistency and predictability are critical issues in the growth of the Internet and electronic commerce. The conflicting results in court may make for interesting discussions in newsletter and online forums, but do not provide the certainty that companies need to move forward.