Women of Vision for Social Impact:
“Making a Difference in High Technology Law”I am not a computing professional by formal training. I studied history, political science, and law and did not initially intend to become a technology lawyer. Through the generous mentoring of many computing professionals, including most notably my husband Bob Glushko, I have had the opportunity to learn enough about computing to write about it intelligently. In the past twenty-some years, I have devoted my career to making a positive difference in the computing field in three ways: first, by developing ideas about how the law should adapt to meet the challenges posed by advances in information technology; second, by writing articles in computing journals such as Communications of the ACM and speaking at computing conferences to enable technologists to become more knowledgeable about intellectual property issues affecting their field; and third, by becoming an activist to work with others, including those in the technology community, to shape sound law and policy affecting the computing field.
As both a scholar and an activist, I have been engaged with many of the leading law and technology debates of the past two decades: fighting against the - look and feel - software copyright lawsuits, fighting for the right to reverse engineer copyrighted software for legitimate purposes such as achieving interoperability; questioning the appropriateness of software patents; challenging the Clinton Administration’s unwarranted extension of copyright protection, both domestically and abroad; working to stop ill-conceived database and information licensing legislation; persuading courts to interpret the DMCA anti-circumvention rules narrowly; and working to preserve the right of technology developers to make technologies capable of substantial non-infringing uses.
Like Anita Borg, in whose memory we meet tonight, I have strongly encouraged women to become active contributors to the computing field, although those I encourage do so more as computer lawyers than as computer scientists. I am pleased to report that there are many outstanding young women in the computing law field today, some of whom I have had the pleasure to teach and mentor. Like those among you who founded the Anita Borg Institute to carry on her mission, I have worked to build institutions to carry on my work. In addition to serving on the Board of Directors of the Electronic Frontier Foundation and for several years on the ACLU of Northern California, I have been a member of an Advisory Board for the Electronic Privacy Information Center and on the USACM Public Policy Committee. I have also worked with various information technology industry associations and other activist groups.
Along with several Boalt students, I also helped to found a high technology law and public policy clinic that trains law students, as well as graduate students from computer science and the information school at which I hold my joint appointment, to work together to advance the public interest in high technology law. The Boalt clinic, which is like a mini-law firm within a law school, represents clients such as Consumers Union, the Internet Archive, and open source developers, through filing amicus curiae (or friend of the court) briefs in pending court cases, drafting legislation and testimony for legislative hearings, and participating in technical standards committees. The idea of a high tech law clinic, first started at Boalt, has spread. There are now high tech clinics at about twenty law schools, including Boalt, Stanford, Harvard, USC, and American University . As my husband Bob likes to say, the public interest in high technology law now has an army to fight for the public interest. It is a small army, but these clinics have been producing dozens of lawyers each year who have advanced the public interest in high tech law. Even when these students go off to work at law firms, they know that technology law has public interest dimensions.
I first began writing about technology law because it was just plain interesting. In the early 1980’s both copyright and patent law professionals were having difficulties figuring out what to do with computer programs. Viewed from one perspective, computer programs ought to be protectable by copyright law because in source code form programs seem to qualify as original works of authorship. Yet, once compiled into machine-executable form, they are virtual machines and machine processes, which has long been the province of patent law. Patent law too had difficulties with programs and program-related inventions: with programs because they are texts, which is traditionally copyright, not patent, subject matter, and with program-related inventions such as algorithms because they are mathematical ideas. Although intellectual property debates about patents and copyrights for software date back to the mid-1960’s, it wasn’t until the 1980’s that the computer software industry was at a stage that it made a significant difference which law, if either, applied to programs and what scope of protection these laws might provide to programs.
For the first several years of my work on software intellectual property law, I wrote articles in law reviews and in CACM to analyze ongoing litigation, such as the Apple v. Microsoft and Lotus v. Borland - look and feel - lawsuits. At some point, I realized that writing articles about train wrecks that I thought were about to happen wasn’t enough. So I became an activist. Sometimes it felt like I was throwing myself on the train tracks to try to stop the wreck. I wrote amicus curiae briefs for intellectual property professors in cases that were pending before courts and worked with other professors on their briefs and recruited other professors to join in. It was deeply satisfying to realize that law professors could speak with one voice and help the courts analyze the implications of rules for which understandably self-interested litigants were fighting. The briefs we filed in key software copyright cases were influential in helping judges apply copyright law to software in a way that would protect it against market-destructive appropriations but not so as to stifle competition and innovation.
The most recent friend of the court brief that the high tech clinic at Boalt and I undertook in the last year was one filed with the US Supreme Court in the MGM v. Grokster case. (A very talented young computer science graduate student Marci Meingast was part of this amicus team.) Sixty intellectual property law professors signed onto this brief, as did the USACM Public Policy Committee.
MGM, as you may know, sued Grokster for copyright infringement, claiming that it was liable for the infringing acts of users of its peer to peer file sharing program. MGM argued that Grokster had intentionally designed this technology to enable infringement, that it had supplied this technology to users knowing or having reason to know they would use it to infringe, and that Grokster could have designed the technology to thwart infringement, but chose not to in order to encourage infringement. Grokster defended this lawsuit by claiming that its software had and was capable of substantial non-infringing uses and hence that it qualified for a safe harbor that the Supreme Court had recognized in its 1984 Sony v. Universal decision that allowed Sony to continue to sell Betamaxes because they were widely used for time-shifting purposes. The two lower courts agreed with Grokster, but no one was surprised when the Supreme Court decided to hear MGM’s appeal.
The principal argument in our amicus brief was that by MGM was asking the Supreme Court to make technology policy, not to apply the copyright statute. Each of the alternative standards for technology developer liability for user infringements for which MGM was arguing would have radically shifted the balance of power between the entertainment industry and the technology industry. If the law needed to be changed, we argued that the change should come from Congress because it, not the Court, has the institutional competence to identify the affected stakeholders, gather facts about matters arguably calling for a policy response, assess the costs and benefits of various proposed solutions, and craft rules that balance competing interests.
While the Supreme Court did decide the case in MGM’s favor, it did so on a very narrow ground. It sent the case back to the lower courts to consider whether Grokster had induced its users to engage in copyright infringement, a theory that MGM had not actually argued below. I believe that our brief helped to persuade the Supreme Court to preserve the Sony safe harbor for technologies with substantial non-infringing uses, on which innovative technologists depend every day.