B Y STEPHEN B. JENKINS
provide a lower-cost way to challenge the validity of
Whelan has not been the only “bad” IP hack in the
past two decades. Another one was MAI v. Peak,
which opined that temporary copies made in RAM
when a computer is booted are reproductions of copyrighted software that can give rise to infringement
claims if the machine was turned on by an unlicensed
But good hacks have been more common. Religious
Technology Center v. Netcom, for instance, rejected an
MAI v. Peak-like theory of liability against an Internet
access provider. The judge decided that an Internet
access provider should not be held liable for infringing
copies of user postings on Usenet because copyright
liability should be imposed only for volitional acts,
not for automatic copies made by servers.
Another good hack was the Supreme Court’s decision in MGM v. Grokster, which retained the Sony safe
harbor for technologies having substantial non-infringing uses and held that peer-to-peer file-sharing
firms should only be liable for infringement if they
have induced users to infringe.
There is no way to foretell hacking of intellectual
property law will be necessary to further adapt it in
response to advances in computing technologies.
More innovation is surely on the way—along with
more lawsuits. Thus, a third decade of “Legally Speaking” columns may still be needed to translate what
these lawsuits will mean for CACM readers. c
PAMELA SAMUELSON ( firstname.lastname@example.org) is the Richard
M. Sherman Distinguished Professor of Law and Information at the
University of California, Berkeley.
ODE TO CODE
Much have I travell’d in the realms of code,
And many goodly programs have I seen.
I’ve voyaged far to conferences umpteen,
Attending to the wisdom there bestowed.
Yet as I’ve moved along the winding road
Of my career (a journey not serene),
Only one source of knowledge has there been
Of worth enough to prompt of me an ode.
Communications has for 50 years,
Been there to help each of us on our way,
By giving us the writings of our peers,
And telling us the things they had to say.
So as the start of its sixth decade nears
Please join me wishing it “Happy Birthday.”
STEPHEN B. JENKINS ( Stephen.Jenkins@nrc-cnrc.gc.ca) is the
senior programmer/analyst at the Aerodynamics Laboratory of the
Institute for Aerospace Research, National Research Council