WILLIAM MITCHELL COLLEGE OF LAW

FINAL EXAMINATION

COMPUTERS AND THE LAW

Professor Niels Schaumann

Wednesday, May 15, 1996 - 6:30 p.m.

2 Hours

STUDENT TEST NO.

1. For anonymity, use your assigned test number which was mailed to you.

2. Put your test number on this page and on all bluebooks.

3. If you do not know your test number, you may obtain it at the Communication Center or in the Records Office (Cindy Egeness) during the first 30 minutes of the exam period.

4. If you do not use your test number, you will be deemed to have waived your privilege of anonymous grading.

5. TURN IN YOUR BLUEBOOKS AND THIS EXAM AT THE END OF THE PERIOD.

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STUDENT CONDUCT CODE

IT IS A VIOLATION OF THE CODE:

1. To use any sources which are forbidden by the instructor to complete an exam.

2. To submit as one's own work the work of another.

3. To engage in any conduct which tends to give an unfair advantage to any student in any academic matter.

Knowledge of any violation should be promptly reported.

VIOLATION OF THE STUDENT CONDUCT CODE MAY RESULT IN EXPULSION

OR SUSPENSION FROM THE COLLEGE OR DISMISSAL FROM THE CLASS.

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GRADUATING SENIORS: If you are a graduating senior, note this fact on all bluebooks and this exam paper. DO SO CONSPICUOUSLY.

TYPING AREA: If you are going to type your examination, the typing area is located in the old Boardroom. You must return the exam to this room at the conclusion of the exam period.

GENERAL INSTRUCTIONS

MATERIALS PERMITTED FOR THIS TEST: Maggs, Soma & Sprowl, Computer Law: Cases--Comments--Questions (1992), with the statute supplement of your choice. In addition, you may use class notes, outlines and other materials prepared by you or by other students, and any material distributed by the instructor. NO OTHER MATERIAL IS PERMITTED.

1. This examination consists of two Parts, numbered I and II. Below the heading for each Part there appears, in parenthesis, the percentage of the total test score attributable to that Part. No matter how long you spend on a question, you can earn no more than the specified percentage of the total test score for your answer. It is therefore wise to budget your time carefully.

2. Answer all questions only according to the materials we studied in this class this semester. And remember to budget your time.

3. BUDGET YOUR TIME.

ANSWER ALL QUESTIONS USING A PEN

DO NOT ANSWER ANY QUESTION IN PENCIL

Part I--Essay

(75%)

Instructions for Essay Questions

1. Write on only one side of the page.

2. Write on every other line.

3. Leave the left margin of the page empty.

4. Try to write legibly. I want to give you as much credit as possible, and I cannot give credit for an answer I cannot read.

5. Citations to specific cases are not necessary. You should, however, cite relevant statutes and rules.

6. Take some time to organize your answer. All other things being equal, a coherent response will earn more credit than one that rambles aimlessly.

(55%)

Sally is a software engineer. Recently she left her employer of many years and started her own business, developing "add-ons" for popular business applications like Microsoft Excel and Microsoft Word.

The add-ons consist of programs that run concurrently with a "host" program, and add features not found in the host. Thus, for example, Sally recently completed an add-on for Microsoft Word that permits the in-place editing of fonts without exiting from Word. With Sally's add-on, the shapes and spacing of letters can be far more easily changed than they could without the add-on.

One of the problems Sally encountered in developing her programs was the unavailability of source code for the host programs. Without source code, it was extremely difficult for Sally to learn the details of Microsoft Word's internal workings, leaving her to guess based on careful observation of the program while it is running, and trial and error. Microsoft flatly refused to provide her with the information she needs, although she requested it several times.

Six months ago, Nick Nebbish sold Sally software tools--that is, a set of programs--that would help her with this problem. Using the tools is easy: Sally simply loaded the appropriate program, and then ran Microsoft Word. By using Nick's tools (which, among other things, included a "decompiler" and a "disassembler"), Sally was able to generate human-readable source code for Microsoft Word, which saved her an immense amount of time and effort in finishing her add-on font product. The source code is generated by Nick's tools was not identical to the code maintained by Microsoft, but it was helpful nonetheless because it gave Sally a peek at the underlying structure of Microsoft Word. By printing out the source code and reading it at her leisure, she was able to discover the information she needed.

At a cocktail party last week, an acquaintance of Sally's told her that he thought that generating source code for Microsoft Word was probably illegal. Sally became concerned and has consulted you, her attorney. She explains to you, "I can't believe I am infringing Microsoft's rights. Not one byte of my Word add-on is copied from anyone, least of all from them. What I'm doing is actually helping them! How could there be anything wrong with this?"

You explained to Sally that you needed to do a little research on her question, and that you'd "get back" to her. A little investigating has revealed that the copy of Word that Sally was running was purchased at retail in a local computer "superstore." It was not copy-protected. The license that accompanied the product reads (in part) as follows:

1. Grant of License. This License Agreement permits you to use one copy of the Microsoft software program included in this package (the "Software") on a single computer. The Software is in "use" on a computer when it is loaded into temporary memory (i.e. RAM) or installed into permanent memory (e.g., hard disk, CD-ROM, or other storage device) of that computer.

. . . .

3. Retention of Rights. The Software is owned by Microsoft Corporation or its suppliers and is protected by United States copyright laws and international treaty provisions and all other applicable national laws. Therefore, you must treat the Software like any other copyrighted material (e.g. a book or a musical recording) except that if the Software is not copy protected, you may either (a) make one copy of the Software solely for backup or archival purposes, or (b) transfer the Software to a single hard disk provided you keep the original solely for backup or archival purposes.

The time has come to contact Sally and to advise Sally on her activities with respect to Microsoft Word. Has she infringed any of Microsoft's rights? Which rights? Which activities infringed? Explain.

Essay 2

(20%)

The genetic structure of the human body includes an extremely long (+1,000,000 units) set of DNA code, arranged in sequence. Various portions of that code of, say, 200-300 units each, call for the creation of specific protein molecules that are active in the human body. Essentially, the living cell of the human "reads" the DNA sequence and chemically fabricates the protein that matches the instructions in the DNA sequence. The exact sequence of the DNA code has been previously unknown.

Craig Ventor is a research scientist who has been robotically isolating the human DNA code. To date, he has identified almost all the sequence of the human DNA code, but has little or no idea of what proteins most of that code is meant to create.

One of Ventor's co-workers, Arthur Able, has created a computer program that can search the DNA sequence and automatically find potential matches between portions of that code and known protein molecules. The program uses Ventor's the DNA sequence as a database.

Ventor and Able file a patent application that contains the following claim:

I claim:

1. A data structure for use in connection with a search-and-match program, comprising:

(a) a standard 3 and one-half inch magnetic floppy disk;

(b) the floppy disk having magnetically encoded thereon the DNA sequence of the human specie;

wherein the DNA sequence is capable of being read by a suitably programmed computer.

Assume that floppy disks were well known in the art prior to Ventor and Able's work, but that Ventor and Able are the only persons who know the DNA sequence of the human specie. Further assume that the patent application contains a fully enabling disclosure of how to make and use the claimed data structure.

Should claim 1 be patentable under United States law? Why or why not?

[PART II BEGINS ON THE NEXT PAGE]

Part II--Multiple Choice

(25%)

Instructions for Multiple-Choice Questions

1. For each question in Part II, choose the most accurate answer (whether or not you think it fits perfectly). Print (do not write in script) the letter for your answer on the examination paper in the space provided immediately to the left of the question.

2. Each question in this Part is worth the same number of points (2.50 points).

3. Although an incorrect answer will not earn any points, no points will be deducted for an incorrect answer. This means that if you are unsure of the correct answer, it is to your advantage to guess. An answer left blank counts as an incorrect answer.

4. Although I have tried to make the questions as clear as possible, objective questions are very difficult to write. Moreover, law students under exam pressure are extraordinarily adept at spotting lurking ambiguities.

For these reasons, below each question there are three lines. If you consider it necessary to qualify your answer, you may use those lines to write in any additional information that you believe I should have.

The foregoing should not be construed as encouragement to qualify your answer. No "extra credit" will be given for material written in these spaces. Similarly, no points will be deducted for incorrect statements made in a qualification. If, however, students identify a material flaw in a question, I may allow more than one answer or, if necessary, not score the question at all.

Definitions. Unless expressly stated otherwise, all references to: (1) the "Act" or to the "1976 Act" are to the U.S. Copyright Act of 1976, as amended through May 1996; and (2) sections, are to sections of the Act.

____ 1. Computer programs may be protectible by the 1976 Act if they are:

A. In source code form.

B. In object code form.

C. Permanently embedded in a ROM chip.

D. All of the above.

E. A. and B. above, but not C.

A. Idea and expression are interchangeable, at least for most computer subject matter.

B. Verbatim and non-verbatim copying are interchangeable, at least for most computer subject matter.

C. Screen displays and their underlying code are interchangeable, at least for most computer subject matter.

D. B. and C. above, but not A.

E. None of the above.

A. The user interface of the program; the screens seen, characters typed, etc., by the user in using the program.

B. The non-literal aspects of the program code; those things that can, if copied, infringe the code, but that do not necessarily involve verbatim copying of the code.

C. The end result of applying the Second Circuit's "abstraction-filtration-comparison" approach to infringement.

D. None of the above.

E. A. and B. above, but not C.

A. Are absolute, and any infringement is per se unlawful.

B. Are created by a combination of Constitutional, federal, and state law.

C. Cannot be waived except in the most unusual circumstances.

D. All of the above.

E. B. and C. above, but not A.

A. The right to avoid disclosing intimate facts about oneself.

B. The freedom to act without concerns about what others may learn about one's past.

C. The right not to have one's name or likeness exploited by another for commercial gain.

D. All of the above.

E. A. and B. above, but not C.

A. The use of so-called "auto-capture" technology in data collection.

B. Carelessness or inattention on the part of persons collecting data.

C. Failure to appropriately verify data collected with respect to an individual.

D. All of the above.

E. A. and B. above, but not C.

A. Bob's oral report is a "consumer report" under the Fair Credit Reporting Act.

B. Bob's oral report is not an "investigative consumer report" under the Fair Credit Reporting Act.

C. Bob is not a "consumer reporting agency" under the Fair Credit Reporting Act.

D. All of the above.

E. Both B. and C. above, but not A.

A. May be prosecuted in the jurisdiction from which the transmission originated.

B. May be prosecuted in a jurisdiction in which the transmission was received.

C. Is protected against prosecution by the application of the First Amendment to computer networks.

D. Both A. and B. above, but not C.

E. None of the above.

A. Appear chiefly in federal law, because most state laws in this area have been preempted by federal regulation.

B. Are in most cases unconstitutional restrictions on First Amendment rights.

C. Are derived directly from the criminal provisions of the 1976 Act.

D. All of the above.

E. None of the above.

A. Rarely applies to crime involving computers, because of the manner in which the statute was drafted.

B. Is often applied in prosecuting copyright violators.

C. Criminalizes intention, in the sense that the federal offense is complete when a "plan" to defraud is formed.

D. All of the above.

E. Both A. and C. above, but not B.