This seminar will address a number of emerging legal theories under which data and other non-copyrightable subject matter may be protected under U.S. law, and ways in which the traditional IP categories of copyright, patent and trademark law are evolving in light of changing technological circumstances. Recent U.S. cases applying contract principles, conversion, common law trespass to chattels, and "hot news" misappropriation will be analyzed, with a particular focus on the issue of preemption under sec. 301 of the Copyright Act. Federal statutory protection under the Computer Fraud and Abuse Act will also be discussed.
As to each alternative approach, the seminar will first review relevant decisions, statutes and scholarly articles in an effort define the scope of protection available (what may be protected), the underlying rationale (why and to whom such protection might be beneficial), the advantages and disadvantages of such protection relative to other possible approaches, and the possible policy implications of restricting the circulation of materials that traditional I.P. doctrines have left largely unregulated. Invited guests from academia and private practice will add their practical and theoretical insights to the discussion on many occasions, In weeks 11, 12 and 13 each student will present a draft paper for discussion and critique, on a topic drawn from the assigned readings. A final written version of the paper will be due at the end of the semester. Grades will be determined by each student's class participation, oral presentation, and final paper. Major writing credit is available.