Computer Law: Dynamics, Themes, and Skill Sets

• Author: George Takach
• Profession: Adjunct Professor
• Pages: 672-701

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This book presents a wide-ranging analysis of intellectual property law,

criminal law, regulatory legal regimes, commercial law, and electronic

commerce and Internet legal issues in terms of four principal dynam-

ics. First, there is the impact on the law of rapid technological change

and the law’s response to this. A second dynamic is the elusive nature

of information, particularly in its digital form, and how the law is cop-

ing with the challenges posed by this. A third dynamic is the increas-

ing fusion of the public and private spheres in many computer law

matters. Finally, there is a blurring in computer law of the dividing line

that has traditionally separated that which is national and that which

is international. Each of these dynamics presents computer law and its

practitioners with several fundamental challenges.

In meeting these challenges, the legal system can consider four

themes, the elements of which weave through this book. First, there is

the need for consistency in computer laws. Then one needs to under-

stand something about regulatory control points and the law. A third

theme recurs around the liability of intermediaries; and finally, the law

must consider the dangers of mischievous metaphors. Armed with an

appreciation of the aforementioned dynamics and themes, the legal

practitioner can approach virtually any present or future legal problem

by employing one or more skill sets: the common law, by which

reliance is placed on judge-made interpretations of the current law;

contract, by which persons, companies, and organizations craft their

own rules, particularly in the absence of meaningful judicial precedent

COMPUTER LAW:

DYNAMICS, THEMES,

AND SKILL SETS

chapter 8

(or in the face of conflicting jurisprudence); technology, which

involves using technical measures to overcome perceived weaknesses

in the law; and law reform, which entails changes in statute-based law

(or the adoption of new statutes) to solve a problem in the previous

state of statute or judge-made law and, in certain cases, to reduce the

need for contractual and technological solutions.

A. COMPUTER LAW: DYNAMICS

1) The Rapid Pace of Technological Change

The first and most important dynamic in the computer law field is the

relentless pace of technological change. As discussed in chapter 1, the

computer industry rides a roller coaster that appears — and in fact is

— out of control. No other industry produces new products and serv-

ices at such a dizzying pace. Each new product that is launched engen-

ders other products, some competitive, some complementary. There

are also continual developments in the formats, methodologies, and

technologies for delivering traditional content — such as music,

images, and text. Relatively recent developments include multimedia

products on CD-ROM, and most recently, of course, there is the use of

the Internet for commercial purposes. And wireless delivery capabili-

ties now make information, software, and content available to every-

one, everywhere, at all times. In a word, developments in the computer

field are breathtaking, especially when considered in light of the fact

that the microchip is only thirty years old. It is an exhilarating time for

this industry. While the cadence of technological change has perhaps

never been as peripatetic as it is today, the phenomenon of one tech-

nology-driven device leapfrogging the other to produce a competitive

and dynamic environment is not new. The thrust and parry between

the telegraph and the telephone created an analogous situation, and

later devices such as the radio, teletype, telex, television, cable trans-

mission, and other technologies all added to the mix, each leaving new

legal challenges in its wake. With the microchip and the computer rev-

olution, coupled with the latest networks (including the Internet),

however, this process has been accelerated, with enormous implica-

tions for the law.

The dynamic of rapid technological change is evident in the area of

intellectual property law, as articulated in chapter 2. Developers of new

technologies and information-based products are constantly agitating

for intellectual property protection for the fruits of their labour. The

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