The first ten years of my practice saw a need to learn copyright law, while the second ten years required a working knowledge of patent and trademark law, and some privacy law, with a little international trade law thrown in for good measure (including U.S. export control laws and regulations). It was also the time when state and federal legislators were beginning to craft a specialized field of computer crime laws.

By the late 1980s there was a convergence of sorts between the computer and entertainment industries, primarily through videogames and CD-ROM titles. As a result, computer lawyers needed to learn about how the entertainment industry worked – again, primarily in the contracting area — but also with regard to trademarks, Hollywood guilds and unions (e.g., SAG, DGA) and right of publicity issues. It also required computer lawyers to learn a lot more about copyright and contract law in areas that had previously been limited to entertainment lawyers.

Since the 1990s we have seen the subject matter of computer law expand rapidly. We have had to learn telecommunications law, expand our knowledge of trademark law to deal with domain name issues, cope with the ever-expanding body of federal and state laws that deal with the financial laws and regulations underpinning e-commerce, privacy issues, cybercrimes, and a host of other fields that computer lawyers (now called IT lawyers) never thought they would need to deal with.

Now, cloud computing may require us to learn another body of law – admiralty law. Google has recently filed patent applications for ocean-going data centers that would be housed on large merchant ships and could be moored off-shore or sail blissfully in international waters – avoiding the problems arising from pesky local or national laws. These ships would generate their own power, provide their own cooling, have Internet connectivity (presumably from satellites or undersea cables) and generally be subject to no country’s laws. But underlying this concept is still the fact that we are dealing with ships. And ships are subject to both national and international laws – namely admiralty laws.

Dang. Just when I thought I was done learning new laws, I now find myself having to delve into the esoteric area of admiralty law. Ships containing data centers are no different than, and are subject to the same laws as, any other ship. Thus, they are subject to such things as piracy, salvage and seizure (arrest). Yet their cargoes may be infinitely more valuable than any previous ship that has ever plied international waters – the data of thousands or tens of thousands of corporations, millions of individuals, and numerous governments from around the world. How much would that cargo be worth if it fell into the hands of Somali pirates? And what if the assets of even one customer (or the ship owner itself) were subject to a seizure (arrest) order, and the entire ship was seized and the computers taken off the grid?

Far fetched? It was only a couple of months ago that the FBI, looking for assets of a company that had allegedly defraud the local telephone company, raided and seized all of the servers in several Dallas-based data centers – putting all of the data centers’ customers, not just the target of the seizure, out of business. Now multiply that by thousands of customers whose access to their data could be lost if the ship on which their servers and data are housed is arrested under existing admiralty law.

So to all of you IT lawyers representing clients that have or will be entering into cloud computing “solutions” to their data processing needs – start boning up on your admiralty law. It looks like you’re going to need it.

The dot com bust had an enormous impact on the computer industry, as well as those lawyers who serviced that industry. Funding for start-ups disappeared, initial public offerings dried up, and a large percentage of the Internet industry found itself struggling to survive. Lawyers found themselves working more on bankruptcies, mergers and acquisitions and restructurings than helping new business ventures get off the ground. While there had been periods of time in the first four epochs where economic downturns and retrenchment had occurred, nothing compared to the dot com bust.

The enormous growth in the Internet industry had attracted a new generation of lawyers. By 2001, the majority of computer lawyers had been in practice for less than 10 years, and had never experienced an economic downturn. They were ill-prepared to deal with this catastrophic change of circumstances. It was a period of reflection, where everyone in the industry had to take stock. One of the most important steps was to go back to fundamentals. What makes for a successful company? What is the attorney’s role in making a company successful? (More after the jump.)

The Internet and the business models underlying the Internet have changed radically since 2001. Despite the doom and gloom predictions from those who saw the Internet as a passing fad, the Internet and its multitude of uses has grown substantially in the last five years, often in ways that no one could have predicted. Since 2001, use of the Internet, as well as the information available online has doubled and in some cases more than tripled. At the same time, there has been a shift in many facets of online businesses. The resulting business model has been dubbed “Web 2.0.”¹

“Web 2.0 is an attitude not a technology. It’s about enabling and encouraging participations through open applications and services. By open I mean technically open with appropriate APIs but also, more importantly, socially open, with rights granted to use the content in new and exciting contexts.”²

One of the characteristics of Web 2.0 is collaboration between websites and users to create and enhance the content of those sites.³ This has led to new business models based upon “social networking,” where a website is not a static database containing content vetted by the website owner, but is designed to allow users to develop the content of the website collaboratively. And with new business models come new legal issues.

Beyond the growth of the Internet, a series of events during the first half of the “aught” decade have substantially rewritten the legal rules under which IT lawyers operate. The first such event was 9/11. In addition to the human tragedy, which must never be minimized, those companies resident in the twin towers suffered serious disruptions to their businesses due not only to the loss of key people, but the destruction of their computer systems and the historical data stored on those systems. More than one company did not have proper backup or a disaster recovery plan. Many of those companies failed as a result. Their stories were widely reported in the press, and many corporate executives took heed.

It is not possible to track the growth in outsourcing directly to the events of 9/11, but that tragedy provided the impetus for many companies to make the move. Many transactional attorneys heard from their clients, who wanted an audit of their current contracts to insure that their data was being properly safeguarded against loss or destruction.

A second event, which can perhaps be viewed as a corollary of the first, is the War on Terrorism. 9/11 resulted in passage of the Patriot Act of 2001, and a series of subsequent laws, aimed at making it easier to track terrorists online. Never mind that civil libertarians decried these laws as undermining basic constitutional rights, these laws and accompanying regulations have rewritten large swaths of IT law – from issues of evidence, to constitutional rights, to privacy.

A third event that contributed to the emergence of this latest epoch was the financial manipulations uncovered in the wake of the financial failures of Enron, Tyco and others. While corporate fraud had always been with us, the breadth and scope of these frauds were unprecedented. And they could not have been carried out without the use of sophisticated computer systems. These debacles led to the passage of the Sarbanes-Oxley Act, which places significant burdens on corporations to ensure that their computer systems are secure – or face the consequences. This Act, along with passage of HIPAA, Gramm-Leach-Bliley and other federal and state laws have placed an enormous burden on companies to ensure that the data stored on their systems is secure.

And that has lead to the fourth development that is propelling the Fifth Epoch – the wholesale, global assault on privacy. Criminals are using the Internet to get access to personal information – usually without the victim even being aware that it is happening. Companies whose computer systems have been compromised are facing lawsuits, FTC actions, and a growing number of state laws that require them to notify their customers of any security breaches.

Last, but certainly not least, U.S. companies seem to be addicted to outsourcing. Although outsourcing of computer services has been taking place for decades, the decrease in telecommunications, costs, the increase in highly educated individuals in countries like India and China, and the ubiquitous nature of the Internet, have allowed companies to send increasing amounts of IT and business services to low-cost service providers. The legal issues involved in outsourcing are growing quickly.

© 2007 Michael D. Scott. All rights reserved.

Previous: “The History of Computer/IT Law” Fourth Epoch (1993-2001).

1. The term “Web 2.0” was coined by a conference organizer to describe the subject matter of their post-dot com crash business conference. However, the term has caught on, with over 9.5 million citations on Google.
2. Ian Davis, Talis, Web 2.0 and All That, July 4, 2005.
3. As noted in Wikipedia, Web 2.0 is “[a] social phenomenon referring to an approach to creating and distributing Web content itself, characterized by open communication, decentralization of authority, freedom to share and re-use, and ‘the market as a conversation.’”

By the early 1990s, the Internet was old-hat to computer professionals, but virtually unknown to the general public. The system began in 1969 as the ARPANet. It was “designed to enable computers operated by the military, defense contractors, and universities conducting defense-related research to communicate with one another by redundant channels even if some portions of the network were damaged in a war.”¹ After two decades, pressure built to open the network to commercial activities. Finally, in 1993, the National Science Foundation (NSF) (which had been administering the Internet for many years) created InterNIC and the Internet was opened to the public. Little did the NSF realize the legal issues that this seemingly simple decision would engender. (More after the jump.)

Since the Internet would now be open to the public, and not limited to scientific and military users, the NSF decided to bow out of its supervisory role. It transferred its obligations to others, including the obligation to administer the domain name registration service to a private company – Network Solutions, Inc. (NSI). Some of the technological savvy quickly grasped the significance of this action and began registering domain names they thought could be later sold at a profit. Because NSI allowed users to register domain names on a first come, first served basis, these individuals, later to become known as cybersquatters,² were able to register the names and trademarks of some of America’s best known companies. It was not until months or years later, when these companies decided to establish an Internet presence, that they learned that someone else controlled their names and trademarks online. This led to years of litigation, arbitration and in 1999, the passage of the federal Anti-Cybersquatting Consumer Protection Act.³ These events made trademark law one of the most litigated areas of Internet law.

One of the most important features of the Internet was the ability to easily and inexpensively post information online. And people, companies and government agencies did so with a vengeance. This vast body of information led one federal court to refer to the Internet as the “most participatory form of mass speech yet developed.”⁴ It is viewed by many as a very liberating medium, allowing average citizens to get their voices heard.

“In the medium of cyberspace, however, anyone can build a soap box out of web pages and speak her mind in the virtual village green to an audience larger and more diverse that any the Framers could have imagined. In many respects, unconventional messages compete equally with the speech of mainstream speakers in the marketplace of ideas that is the Internet, certainly more than in most other media.”⁵

But while the Internet is a liberating force, it can also be abused by those who see its liberating quality as an excuse for excessive, and often criminal, behavior. Obscenity, child pornography, defamation and hate speech have all found receptive audiences online. And law enforcement, Congress and the courts have found themselves struggling to deal with these activities. New laws need to achieve a delicate balance between controlling illegal behavior while not unduly interfering with protected free speech rights.⁶ This balance has been difficult to achieve.

Infringement of intellectual property rights was also rife online. Owners of creative works had to engage in extended legal battles with infringers to control piracy on the Net – with mixed results. As one infringer was shut down, many more popped up. Infringers who found it too difficult to operate in one country, simply moved to another. And the game started again.

Several amendments to copyright law already have been enacted to try to deal with this situation, and future amendments were undoubtedly necessary. The difficulty with crafting copyright amendments is the fact that there are a number of interested parties. It is not just the copyright owners and the pirates who have a stake in these laws, it is also the Internet service providers who are concerned about possible vicarious liability for third party infringements, as well as researchers and users who are concerned that their rights under the fair use doctrine may be eroded.

During this epoch, the courts were repeatedly asked to rule on the patentability of computer software. A series of court decisions at the Federal Circuit and U.S. Supreme Court made it clear that the mere fact that an invention was a computer program or incorporated a computer program was not a basis for rejecting the invention as unpatentable subject matter. One of the most important decisions in this area was rendered by the Federal Circuit, when it held that business method inventions were patentable subject matter.⁷ This opened the floodgates for an enormous increase in patent applications directed at Internet-based business methods.⁸

During this time period, a number of developments made it increasingly easy for people to communicate online. “In rapid succession the deregulation of telecommunications, the miniaturization of satellites, and the development of mobile technologies have made connection available to anyone, anytime, anyplace.”⁹ This had an enormous impact on the growth of the Internet as well as online commerce.

Because of the standard protocols used online, it is possible to create a web site that is accessible from anywhere in the world using any type of computer, operating system and browser. Companies like Amazon.com, eBay and Google became multi-billion dollar companies, with millions of users worldwide. All of the legal issues that face traditional brick-and-mortar companies also faced online retailers. Consumer protection, taxation, unfair advertising and competition, contractual enforcement, and many more legal issues needed to be dealt with.

Unfortunately, one of the side effects of electronic commerce was the increase in the amount of personal information being transferred over the Internet and stored on e-commerce companies’ computer systems. Hackers and other criminals devised ways to gain access to these computers and to steal personal information. The result was a significant increase in identity theft and the need for updated computer crime laws to deal with these illegal activities.

Another event that led to considerable work for computer lawyers during the 1990s was the “Year 2000 problem.” This problem arose from software that stored only the last two digits of a year in a computer record. It saved space in computer systems, and caused no problems as long as every year was within the same century. But as the new millennium approached, it became clear that those software packages that had used this shortcut would need to be modified to deal with the situation of dates being in two different centuries. Fortunately, the clarion call was made early enough, and companies took the problem seriously enough to invest the time and money needed to deal with the Y2K problem. The millennium celebrations were not marred by massive blackouts, planes falling from the skies, and other doomsday scenarios that had been predicted.

The Year 2000 problem not only generated a lot of work for computer lawyers, but it raised the public’s awareness of how dependent society is on computers. It also focused the attention of corporate executives on the importance of computer contracts and those attorneys who knew how to draft and negotiate them competently.

During the heydays of the mid-1990s, billions of dollars were being invested in dot com companies. Investors were so desperate to be in on the Internet bandwagon that they began investing in business plans that had no chance of success. Finally, the house of cards came tumbling down and the dot com boom was “officially” declared the dot com bust. The result was an incredible wake-up call for entrepreneurs, investors and those that provided them with legal advice.

© 2007, 2008 Michael D. Scott. All rights reserved.

Next: “History of Computer/IT Law” Fifth Epoch (2001-20??).
Previous: “History of Computer/IT Law” Third Epoch (1982-1993).

1. American Civil Liberties Union v. Reno, 929 F. Supp. 824, 831 (E.D. Pa. 1996), aff’d, Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
2. “These individuals attempt to profit from the Internet by reserving and later reselling or licensing domain names back to the companies that spend millions of dollars developing the goodwill of the trademark.” Intermatic, Inc. v. Toeppen, 947 F. Supp. 1227, 1233-34 (N.D. Cal. 1996).
3. 15 U.S.C. § 1125(d).
4. American Civil Liberties Union v. Reno, 929 F. Supp. 824, 883 (E.D. Pa. 1996), aff’d, Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
5. American Civil Liberties Union v. Reno, 31 F. Supp. 2d 473, 476 (E.D. Pa. 1999).
6. This was the balance the U.S. Supreme Court sought to achieve in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) and subsequent cases involving legislation to control harmful speech online. See, e.g., Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004).
7. See State Street Bank & Trust Co. v. Signature Financial Group., Inc., 149 F.3d 1368, 47 U.S.P.Q.2d (BNA) 1596 (Fed. Cir. 1998), cert. denied, 525 U.S. 1093 (1999).
8. See, e.g., “Business Methods” Are Broadly Defined, N.Y.L.J., Feb. 10, 2003) (“According to the U.S. Patent and Trademark Office (‘PTO’), the number of applications . . . has exploded from 927 in 1997 to over 8700 in 2001. . .).
9. Stan Davis & Christopher Meyer, Blur: The Speed of Change in the Connected Economy 9 (1998).

Toward the end of the 1970s, advances in semiconductor technology permitted the development of the first inexpensive, relatively small computers – ushering in the personal computer era. Most of the early companies have been long forgotten – such companies as IMSAI, Cromemco and Osborne. One company, literally started in a garage, however, has survived. Apple Computer provided the first, fully assembled personal computer, and looked like it would dominate the personal computer industry.

Then in 1982, IBM announced that it would begin manufacturing its own personal computer. And not only that, but that its computer, unlike Apple’s, would be based upon an open architecture – that is, any company that wanted to could build and sell an IBM-PC compatible machine. Other companies quickly entered the field with IBM PC-compatible machines, including Compaq and HP. What was most significant to the computer industry (at least in hindsight) was that IBM chose Microsoft to provide the operating system for its PC, and allowed Microsoft to provide the same operating system to any other manufacturer who wanted it.¹ (More after the jump.)

The dawn of the PC industry saw an explosion in the number of software companies, and with that an enormous demand for lawyers who could provide legal services for all of these start-ups, from incorporations to funding to licensing, IP protection, domestic (and later international) distribution agreements, and so forth.

Toward the end of the Third Epoch a new field of practice began to develop – multimedia law. Higher processing speeds, CD-ROM technology, the enormous installed base of PCs, and a group of entrepreneurs who saw the potential for bringing entertainment to the PC by teaming up with the entertainment industry, all converged at this time.

The term “multimedia” became hot. Any company that had the word in its name, or claimed to be developing a multimedia product, was flooded with funding propositions by venture capitalist and other investors who wanted to get in on the ground floor of the “next big thing.” The CD-ROM-based multimedia market looked like a sure thing – until the emergence of the next “bigger” thing – namely, the Internet.

© 2007, 2008 Michael D. Scott. All rights reserved.

Next: “History of Computer/IT Law Fourth Epoch (1993-2001).”
Previous: “History of Computer/IT Law” Second Epoch (1969-1982).

1. IBM had originally contacted Digital Research (DRI) for the operating system, since DRI had the leading personal computer operating system at the time – CP/M). However, although the stories vary, DRI apparently snubbed IBM and IBM then went to its second choice – Microsoft. See S. Krause, Short History of MS-DOS.

IBM’s announcement, which launched the worldwide software industry,¹ ushered in the Second Epoch of Computer Law. During this second time period contracting issues became increasingly important, as companies had to develop a new body of licenses and other contracts to deal with the myriad transactions taking place.

In addition, technology allowed companies to develop small, faster and cheaper computer hardware. This was the period of mid-sized and mini-computers from such companies as DEC, Prime and Basic Four. These machines allowed small to medium size businesses to buy or lease their own computers. This in turn exposed many business lawyers to their first experience in negotiating a computer purchase agreement, a software license agreement, or a maintenance and support agreement. Computer lawyers moved from a small cadre of in-house counsel to a growing body of private practitioners. During the early years of this epoch, a group of these lawyers founded the Computer Law Association (now renamed the ITLaw Association), which continues to be the preeminent international legal organization in the field today.² (More after the jump.)

As the investment in software development increased, companies began looking for ways to protect their investment through the application of traditional intellectual property laws. Copyright, patent and trade secret law were all examined and a great deal was written on their applicability vel non to computer software.³

The Copyright Office had agreed in 1964 to allow computer programs to be registered as literary works, but did so under its “rule of doubt.”⁴ The Copyright Office left it up to the courts to decide whether computer programs were copyrightable, and if so which aspects. In its run-up to passage of the 1976 Copyright Act, Congress was also unsure about the copyrightability of computer programs, so it created the CONTU Commission to investigate the matter.⁵ The Commission’s final report was not released until 1978,⁶ two years after the new copyright law was enacted, and its recommendations for software copyright protection were not incorporate into law until the 1980.⁷

At the same time, the Patent and Trademark Office (PTO) was struggling with the patentability of computer programs. During the 1970s, the PTO took the position that programs were simply not patentable subject matter for a variety of reasons, primarily because programs were just mathematical algorithms that were not patentable.⁸ It was not until the early 1980s that the courts began to chip away at the PTO’s recalcitrant position.⁹

Trade secret law was already a well-developed area of law that was sufficiently flexible to protect not only computer software itself, but many different aspects of software, including documentation, design information, and algorithms, mathematical models and formulae. Attorneys began drafting their software licensing and development agreements to provide for trade secret protection.

Privacy was not a significant issue for the computer industry until the late 1960s, when newspaper reports began disclosing how the federal government was using data it was collecting for one purpose for an entirely different purpose, namely, to track anti-war activists and draft dodgers. A growing public concern about government misuse of data led to the passage of the Privacy Act of 1974,¹⁰ which placed some limits on the federal government’s use of information it collected. Various states enacted similar laws directed at state government information gathering.

The increased use of computers in companies to manage their financial activities, as well as computer usage in banks and other financial institutions, did not go unnoticed by criminals. By the mid-1970s, computer-related crime was on the rise. Yet, there were no criminal laws specifically directed at these activities, and traditional criminal laws were often found wanting in prosecuting computer criminals. The first federal computer crime law was proposed in 1979, but not enacted until 1984.¹¹

© 2007, 2008 Michael D. Scott. All rights reserved.

Next: “History of Computer/IT Law Third Epoch (1982-1993).”
Previous: “History of Computer/IT Law First Epoch (1960-1969).”

1. See Stanley Gibson, Software Industry Born with IBM’s Unbundling, Computerworld, June 19, 1989, at 6.
2. The association has published its own fascinating history.
3. At this time, trademark law was not an issue. It was not until the 1990s with the emergence of domain names on the Internet that trademark law became an important aspect of computer law.
4. U.S. Copyright Office, Compendium of Copyright Office Procedures II, § 324.04.
5. Despite the importance of the Commission’s recommendations to the growth of the U.S. computer industry, the Commission had no computer lawyers as members.
6. CONTU Final Report (1978).
7. 17 U.S.C. § 101.
8. See generally Susan Nycum, Legal Protection for Computer Programs, 1 Computer/L.J. 55 (1978).
9. See Diamond v. Diehr, 450 U.S. 175 (1981).
10. Pub. L. No. 93-579, 88 Stat. 1896 (1974), codified at 5 U.S.C. § 552a (1982).
11. Act of Oct. 12, 1984, Pub. L. No. 98-473, title II, § 1602(a), 2102(a), 98 Stat. 2183, 2190 (1984), codified at 18 U.S.C. §§ 1029-30.

Putting a date on when the field of computer law began is as difficult as putting a date on when the “modern” computer industry began. And yet the two fields are inexorably intertwined, and so, deciding when a “modern” computer was first used will provide us with the earliest possible date for the birth of the field of computer law.

Did the computer industry begin with Blaise Pascal, who many credit for building the first digital (but definitely non-electronic) digital computer in 1642? Or perhaps with Charles Babbage, who had an early model of his difference machine working in 1822, but later gave up on it and began designing his analytical engine – which he never completed?

Perhaps we should look at Herman Hollerith, who contributed to the development of automated computing with his invention of the punched card for use in the 1890 census? The punched card was adopted by International Business Machines, which built machines to read, add, multiply and sort them in the early decades of the 20th century.

World War II saw the development of the first electronic computer, based on vacuum tube technology, which eventually resulted in the ENIAC (“Electrical Numerical Integrator and Calculator”).² This computer and other research advances eventually led to the introduction of the EDVAC and UNIVAC computers to the commercial market in the 1950s. (More after the jump.)

Regardless of the seemingly primitive technologies used in each of these machines, you can be certain that all of these projects involving the drafting and negotiating of one or more contracts for the development of, and later the distribution and use of, these machines. Hence, one could argue that whatever date we choose for the development of the first digital computer, there were necessarily lawyers there preparing the necessary documentation – and hence that was also the date of the birth of computer law.

But whatever date we choose, there is essentially no written record of developments in the field until 1960,³ with the publication of the first legal article on computer law.⁴ As the author of that pioneering article later reminisced:

“The early challenge in the practice of computer law was basic. The challenge was to recognize that, despite the novelty of the technology, the analytical process we learned in law school should be used for finding legal rules for the various facets of the new world of machines that perform operations similar to human thought.”⁵

For the purposes of this history, until someone unearths a prior publication on the subject, I will take as the genesis of the field of computer law the year 1960. This will be considered Year 1 of the First Epoch of Computer Law. It was a time of large mainframe computers dominated by IBM.⁶

Computers came as complete systems – hardware, software, maintenance and support, training, etc. Only a few government agencies, large corporations and research centers had the money to lease⁷ or buy⁸ these electronic behemoths. For those who could not afford to have their own machine, service bureaus⁹ allowed multiple users to purchase processing time on a single machine.
During the 1960s, a few software companies were formed, primarily to provide software to the government.¹⁰ There was little incentive for mainframe users to go to someone other than their vendor for software – and indeed, the hardware vendors actively discouraged customers from acquiring third party software (or hardware for that matter).¹¹ Thus, independent software companies were limited to niche markets that the mainframe vendors could not or would not service, such as developing custom software for the U.S. government. However, that all changed on June 23, 1969, when IBM, under pressure from pending antitrust litigation by various competitors and the U.S. government, announced that it would unbundle¹² much of its software and would price and license that software separate from its hardware and services.

© 2007, 2008 Michael D. Scott. All rights reserved.

Next: “The History of Computer/IT Law Second Epoch (1969-1982)”.

1. The dates that delineate each epoch correspond to significant technological or business developments in the computer industry. While the dates can be determined with precision, it generally takes some time for new developments to percolate through the industry (and in turn through society). As such, there is necessarily a lag time between the event itself and the impact of that event on the law.
2. There was a legal battle in the 1970s over whether ENIAC was actually the first digital computer using vacuum tubes, or whether that title belonged to a machine built in the 1930s by John Atanasoff at Iowa State College. In 1973 a court ruled in favor of Atanasoff’s claim. See Honeywell, Inc. v. Sperry Rand Corp., 1973 WL 903, 180 U.S.P.Q. (BNA) 673 (D. Minn. Oct. 19, 1973).
3. Practitioners in this field may argue that the first written discussion of the application of technology to the law was Lee Loevinger, Jurimetrics the Next Step Forward, 33 Minn. L. Rev. 455 (1949). However, that article was about the application of scientific methods to solving legal problems – not the application of law to technology. In the early days of the computer law field, there was significant confusion over whether the field included the use of computers in the practice of law or not.
4. Roy N. Freed, A Lawyer’s Guide Through the Computer Maze, The Practical Lawyer (Nov. 1960).
5. Roy N. Freed, A Functional Legal Approach to Information, With Some Reflections on the Genesis of Computer Law, 15 J. Marshall J. Computer & Infor. L. 3, 4 (1996).
6. The other companies involved in manufacturing mainframes at this time were derisively referred to as the BUNCH, which stood for Burroughs, Univac, NCR, Control Data and Honeywell. All together they had only a small fraction of the market as compared to IBM. Together the companies were referred to as Snow White [IBM] and the Seven Dwarfs [BUNCH plus GE and Xerox]. See Douglas W. Jones, A Bit of History.
7. At this time most computers were leased and not purchased due to cost. The lessee would provide the necessary facilities to house the machine, and would pay the vendor monthly fees based primarily on usage.
8. Prior to the 1956 Consent Decree IBM signed with the U.S. government to end its first antitrust lawsuit, IBM only leased its computers. See Comprehensive History of Information and Computing: Electronic Age 1951-present. As part of that consent decree, IBM agreed to offer its computers for sale as well as lease. See United States v. International Bus. Machines Corp., 163 F.3d 737, 738 (2d Cir. 1998).
9. A service bureau is a company that “owns or leases computer products and/or services and then performs data processing services for customers for a fee.” Telex Corp. v. IBM Corp., 367 F. Supp. 258, 273 (N.D. Okla. 1973), aff’d in part, rev’d in part, 510 F.2d 894 (10th Cir.), cert. dism., 423 U.S. 802 (1975).
10. See, e.g., Computer Sciences Corp., Our History.
11. IBM also supported a user group called SHARE, which encouraged users of IBM computers to submit software they had developed for sharing with other users. See generally IBM SHARE Library. The existence of this group and its free software library also discouraged the development of independent software vendors for IBM mainframes.
12. Unbundling meant that IBM would now offer its hardware and software separately, and at least theoretically, a customer was free to acquire the components it needed from any vendor or combination of vendors.

The two-day conference brought together what I consider to be three generations of computer/cyber lawyers. The First Generation, marked by those who worked in the industry before the introduction of the personal computer in 1982, are now the “Old Men” (and a few Ladies) of the field. Many of them have or are preparing to retire. This group, to which I proudly belong, was nicely represented at the event. Several of us had the honor of speaking at the fi rst IFCLA meeting almost two decades ago, and had been invited back to speak at this historic meeting.

The Second Generation consists of those who began practice after the introduction of the PC, and who experienced the dot com boom and eventually bust. The newest group, the Third Generation, are those who began practice after the dot com bust (around 2001 or thereafter). All of us are interested in the latest, and generally continuing, issues of privacy, licensing, international transactions, etc. But the Third Generation attorneys generally have little interest in domain name disputes (those are so “yesterday”), but have a keen interest in the legal issues surrounding collaborative web sites like MySpace, Wikipedia, blogs, and massive multiplayer online games.

What I find interesting is how each generation seems to “rediscover” problems that prior generations had already solved. Many Second Generation lawyers thought that website development transactions and online licensing presented brand new legal issues, and spent plenty of time (and clients’ money) trying to “solve” these problems, when in fact, website development issues had all been thought out years earlier when First Generation attorneys were drafting software development agreements . And online licensing issues were only slight variations on the multitude of licensing transactions (software, databases) that had gone before.

That is not to say that there is “nothing new under the sun.” This field would be quite dull if everything was just a variation on what had come before. The best conferences are those where the organizers find those “cutting edge” issues that can educate everyone — and this was one of those conferences. There were lawyers from 15-20 different countries, of all three generations. The one thing they shared in common was their interest in and love of the field of computer/cyber law. It was a great time to renew old acquaintances and make a number of new ones. Two years from now, IFCLA will be meeting in Paris. Hope to see you there.