Singularity Law

First Epoch (1960-1969)¹

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. [↩]