Intellectual property and software copyright law

a civil suit against the victim who conducts the interception. See 18 USC. 2515, statutory suppression rule does not apply to electronic communications. See also United States v Merriweather, 917 F.2d at 960. Nevertheless, the consent to the interception by the owner of the victim computer acts as a defence to such a lawsuit. See 18 U.S.C. 2511 (2)(d). In replying to defense suppression motions, prosecutors should be reminded of the consent provisions of the ECPA and the comments of the Court in Seidlitz. The one-party consent rule continues to be a valid position. See United States v Merriwether, 917 F.2d 955, 960 (6th Cir. 1990), citing Smith v Cincinnati Post & Times-Star, 475 F.2d 740, 741 (6th Cir. 1973). Post-E.C.P.A. case law supports the concept that a system administrator, who merely stores actions that took place on his computer, has not illegally “intercepted” a computer intruder’s keystrokes. See United States v Merriweather, 917 F.2d 955 (6th Cir. 1990) (The ECPA protects transmissions which are lawfully intercepted. However, once the pager is heard, the transmission has ceased, so the subsequent retrieval was not an interception; as defined by 2510(4)). See also People v Bullock, 48 Cr.L. 1335 (Cal. l/23/ 91). Of course, this argument is much more effective if the system administrator has installed a warning banner on the computer system that the intruder sees when he initially attacks the

computer. Warning banners typically advise the user of the computer owner’s name and warn individuals attempting to logon that only authorized users are allowed on the system. Banners should also indicate that period auditing of the system takes place by the system administrator and that use of the system implicitly conveys consent to the system administrator to conduct such monitoring. Nevertheless, because this issue has not been addressed by the Courts, prosecutors should contact the General Litigation Section of the Justice Department before keystroke capturing is initiated by law enforcement officials. William J Cook Contributions by Asst. D.A. Kenneth Rosenblatt with the Santa Clara County District Attorney’s Office are gratefully acknowledged. Opinions expressed here are the author’s and do not necessarily represent the opinions of Willian Brinks Olds Hofer Gilson & Lione or the Santa Clara County District Attorney’s Off ice. Mr Cook can be contacted at Willian Brinks Olds Hofer Gilson & Lione, NBC Tower, 455 North Cityfront Plaza Drive, Chicago, IL 6061 I-5599, USA; telephone 312-32 I-4200, facsimile 31232 1-4299.

BOOKREVIEWS INTELLECTUAL PROPERTY AND SOFTWARE COPYRIGHT LAW David Bainbridge has recently authored two publications, both published by Pitman. The first - Intellectual Property (1992), Soft Cover, 446 p (f24.95), ISBN 0-273-03426-X 7 is a course text for undergraduate law students studying intellectual property law. The book is a halfway house between a very substantive text and an introductory guide providing a good general foundation in the subject. In addition to the basic principles of UK law, the author also takes account of European Community developments, and the nature and effect of international conventions are also considered. The book is divided into six parts dealing with preliminary matters, including basic definitions; copyright; breach of confidence; patent law; design law; and business goodwill and reputation. An appendix contains relevant primary source material. The book should also be of value to commercial law students whose course includes some intellectual property law, and to students taking non-law degrees where the practical implications of intellectual property are relevant. The second text -- Software Copyright Law (1992), Hard Cover, 204 p (E45.00), ISBN 0-273-03847-B 7 is a different type of work intended for computer professionals, particularly those engaged in the development and

commercial exploitation of computer software. It is also relevant for those acquiring and operating software or engaging staff or consultants to develop or modify applications. The book describes the law relating to copyright protection, dealing in particular with software and other works created by or stored within a computer. It concentrates on the limits of copyright protection and the boundaries between what is permitted and what is prohibited by copyright law. Also contained within the text are descriptions and discussions of legal cases as well as practical examples. Chapters provide an excellent summary of the issues and should appeal particularly to the nonspecialist. The author’s engineering background, combined with his excellent legal knowledge, provides a sound basis for the analysis. After the introductory material, chapters focus on the specific aspects of copyright protection for software, including ‘look and feel’, reverse analysis, authorship and ownership of works, computer generated works, modifications and semiconductor products protection. Reference is also made to the recent Council Directive on the legal protection of computer programs. Both books are available from Pitman Publishing, 128 Long Acre, London, WCZE 9AN.

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