Research Seminar: The Law of Software

James Grimmelmann

Cornell Tech

Spring 2023


Overview

This is a research seminar on the law of computer software. Specific topics will vary from year to year, but will typically include intellectual property protections for software, constitutional rights to create and run software, embedding legal rules in digital systems, and the regulation of complex artificial intelligence and machine learning systems. The readings will primarily consist of classic and cutting-edge legal scholarship, supplemented with materials on technical background and legal research. Over the course of the semester, participants will research and write a publishable piece of scholarship.

Credits: 3
Meetings: 75 minutes, twice per week, for 13 weeks
Grading: Student option
Satisfies the Writing Requirement: Yes

Course Outcomes

Students who complete this course will be able to:

Who is This Course For?

This course is intended for students who are interested in technology law and want to improve their skills in working with legal scholarship. There are no formal prerequisites, but you should have some familiarity with software, and some familiarity with technology law.

Any of the following is sufficient background in software:

Any of the following is sufficient background in law:

This course is open to students in all graduate degree programs. Undergraduates will be admitted only in exceptional circumstances.

Policies

Please see the course policies document for information about COVID-19 safety; inclusion; names, titles and pronouns; the history of the site where the course takes place; academic integrity; unauthorized collaboration policy; accessibility and accommodations for disabilities; class recordings; and professionalism.

Logistics

Contact

This syllabus is at http://james.grimmelmann.net/courses/software2023S.

Email: james.grimmelmann@cornell.edu
Huddle: Bloomberg 370
Desk: Bloomberg 3 NW, near the bookshelves

My office hours are whenever I’m free during the workday. You can sign up for a slot at https://jtlg.me/meet. When I’m on campus, we can meet in person in my huddle; when I’m not, there’s a Zoom link on Canvas. If none of the available times work for you, send me an email or DM me on the Cornell Tech Slack.

It’s also always fine just to swing by to see if I’m free. If I have headphones on, just catch my eye. If my huddle door is open, come on in. If it’s closed, it’s closed for a reason (usually a call or a meeting) — send me an email!

Required and Recommended Materials

The only required book is a legal citation manual. The nominal standard is The Bluebook, published by a consortium of four law reviews. For law students who intend to practice in the United States, the roughly $50 price tag is a reasonable investment. But for others, you can get by perfectly well with The Indigo Book, a free online reimplementation of the Bluebook’s rules. Introduction to Basic Legal Citation, by Cornell Law’s own beloved former dean Peter Martin, is a highly readable introduction to legal citation that is linked point-by-point to the Indigo Book’s rules.

Most of the remaining required readings will be articles that are accessible online through the Cornell library. A few other readings will be posted to Canvas.

Although it is not required, due primarily to the unreasonably high price, I recommend Eugene Volokh, Academic Legal Writing, a writing manual specifically targeted at law-review substance and style.

Class

Some of our sessions will be devoted to careful discussion of a substantive topic (e.g., whether software as such is patentable). The readings for those session will consist of one or more law-review articles. These will be interspersed with sessions devoted to the research and writing process (e.g., how to read law-review articles efficiently), and then shift into presentations and discussion of your research.

The course will meet in a hybrid format. We will meet in person in t/k at Cornell Tech and in t/k in the Law School. The rooms will be connected via Zoom. Except in an emergency or if you have an excused absence that you have discussed with me beforehand, I expect you to be present in person in one of these two rooms.

Attendance in class is required. Especially in view of the other significant demands on your time, I will be understanding about conflicts and flexible in working with you to make alternative arrangements as needed. That said, consistent unexcused absences are not okay, and may lead to a reduced grade or exclusion from the course (after reasonable written warning). Please arrive promptly. I promise that we will end on time, but that means we must start on time. Bring the readings with you, either on your computer or in hard copy.

The class will not be recorded and you may not record your own audio or video of this course without the knowing consent of all people being recorded.

Assignments

Your work for this class will consist of the following:

First, do the assigned readings and participate in class discussions. I expect all of you to be regular and active participants in the discussions, and to support your classmates in doing so. I understand that everyone has an off day now and then, but this class can only succeed if all of us are fully engaged.

Second, there will be short assignments for the first two-thirds of the semester. Some of these will focus on legal-scholarly research and writing skills; others will be the initial deliverables for the research paper. These will be graded credit/no-credit, and you will receive full credit as long as you complete them diligently.

Third, you will write a research paper of at least 10,000 words on a topic of your choosing. I will approve paper proposals on a wide variety of research subjects; the only substantive requirement is that the paper must discuss an issue in which the legal treatment of software depends on the technical details of how that software works.

The paper may conform to the stylistic and scholarly conventions of any relevant academic discipline. For example, law students may write papers in the form of a law-review Note, computer-science students may write papers in the form of an ACM conference paper, and so on. You should choose the discipline and form that will be most professionally useful to you. You are not required to submit your papers for publication, but it is my goal for the course that each of you will complete a paper you are proud enough of to want to submit.

Your deliverables for the paper will be on the following schedule:

I will meet with you every other week to discuss your projects. In addition to the scheduled meetings, I am always available to meet to provide feedback and suggestions, even on short notice.

Grading

Your grades will be determined as follows:

Schedule

We will usually meet t/k in room t/k and via Zoom. Our first session will be on t/k, and our final session will be t/k.

  1. Introduction: Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 113 Harvard Law Review 501 (1999)
  2. What Is Legal Scholarship? Martha Minow, Archetypal Legal Scholarship: A Field Guide, 63 Journal of Legal Education 65 (2013); Paul Ohm, Computer Programming and the Law: A New Research Agenda, 54 Villanova Law Review 117 (2009); Cornell Law Review, Student-Authored Note Guide (2021)
  3. Software Copyright?: Final Report of the Commission on New Technological Uses of Copyrighted Works (1978); Eben Moglen, Anarchism Triumphant: Free Software and the Death of Copyright, First Monday (Aug. 1999)
  4. Legal Citation: Charles Duan, Citation Theory (draft); The Indigo Book: An Open and Compatible Implementation of A Uniform System of Citation
  5. Software Copyright: Pamela Samuelson, Functionality and Expression in Computer Programs: Refining the Tests for Software Copyright Infringement, 31 Berkeley Technology Law Journal 1215 (2016)
  6. Legal Research: live in-class exercise
  7. AI and Authorship: Jane Gisburg and Luke Ali Budiarjo, Authors and Machines, 34 Berkeley Technology Law Journal 343 (2019), Dan L. Burk, Thirty-Six Views of Copyright Authorship, by Jackson Pollock, 58 Houston Law Review 263 (2020)
  8. Initial Discussion of research-paper topics
  9. Software Patents: Mark A. Lemley, Software Patents and the Return of Functional Claiming, 2013 Wisconsin Law Review 905 (2012); Athul K. Acharya, Abstraction in Software Patents (and How to Fix It), 18 John Marshall Review of Intellectual Property Law 364 (2019)
  10. First Amendment: Andrea Matwyshyn, Hacking Speech: Informational Speech and the First Amendment, 107 Northwestern Law Review 795 (2013)
  11. AI and Speech: Tim Wu, Machine Speech, 161 University of Pennsylvania Law Review 1495 (2013); Toni M. Massaro and Helen Norton, Siri-ously? Free Speech Rights and Artificial Intelligence, 110 Northwestern University Law Review 1169 (2016); James Grimmelmann, Speech In, Speech Out, in Ronald K.L. Collins & David M. Skover, Robotica: Speech Rights and Artificial Intelligence 85 (2018)
  12. Fifth Amendment: Orin S. Kerr, Compelled Decryption and the Privilege Against Self-Incrimination, 97 Texas Law Review 767 (2019)
  13. Layering: Lawrence B. Solum and Minn Chung, The Layers Principle: Internet Achitecture and the Law, 79 Notre Dame Law Review 815 (2004).
  14. Protocols: Eric J. Feigin, Architecture of Consent: Internet Protocols and Their Legal Implications, 56 Stanford Law Review 901 (2004)
  15. Workshop on writing a clear abstract and introduction
  16. Smart Contracts: Shaanan Cohney and David A. Hoffman, Transactional Scripts in Contract Stacks, 105 Minnesota Law Review 319 (2020); Gregory Klass, How to Interpret a Vending Machine (draft 2022)
  17. Smart Contracts: Karen E. C. Levy, Book-Smart, Not Street-Smart: Blockchain-Based Smart Contracts and The Social Workings of Law, 3 Engaging Science, Technology, and Society 1 (2017); Juliet M. Moringello and Christopher K. Odinet, The Property Law of Tokens, Florida Law Review (forthcoming)
  18. Software Liability: Michael D. Scott, Tort Liability for Vendors of Insecure Software: Has the Time Finally Come?, 67 Maryland Law Review 425 (2008); Bryan H. Choi, Software as a Profession, 33 Harvard Journal of Law and Technology 557 (2020)
  19. Software Liability: Deirdre K. Mulligan and Aaron K. Perzanowski, The Magnificence of the Disaster: Reconstructing the Sony BMG Rootkit Incident, 22 Berkeley Technology Law Journal 1157 (2007)
  20. Software as Law?, Lawrence B. Solum, Artificial Meaning, 89 Washington Law Review. 69 (2014); James Grimmelmann, The Structure and Legal Interpretation of Computer Programs, Journal of Cross-Disciplinary Research in Computational Law (forthcoming)
  21. Student Presentations
  22. Student Presentations
  23. Student Presentations
  24. Student Presentations
  25. Student Presentations
  26. The Law-Review Submission Process: Brian D. Galle, The Law Review Submission Process: A Guide for (and by) the Perplexed (2016)