Teruya Seiken

IFSM 430 (homework)

LEGAL

Freedom of Information Act (1966)- Provides that individuals have a right to obtain access to information about them collected in government files.

Fair Credit Reporting Act (1970)- Provides that consumers have the right to be informed of the nature and scope of a credit investigation, the kind of information that is being compiled, and the names of the firms or individuals who will be receiving the report.

Crime Control Act (1973)- Safeguards the confidentiality of information amassed for certain state criminal systems.

Family Educational Rights and Privacy Act (1974)- Limits access to computer-stored records of education-related evaluations and grades in private and public colleges and universities.

Privacy Act (1974)- Protects the privacy of individuals about whom the federal governments has information. Specifically, the act provides the following:

1. Agencies originating, using, disclosing, or otherwise manipulating personal information must ensure the reliability of the information provide safeguards against its misuse.
2. Information compiled for one purpose cannot be used for another without the concerned individual's permission.
3. Individuals must be able to find out what data concerning them are being compiled and how the data will be used.
4. Individuals must be given a means through which to correct inaccurate data.

Tax Reform Act (1976)- Preserves the privacy of personal financial information.

Right to Financial Privacy Act (1978)- Prohibits financial institution from providing the federal government with access to a customer's records unless the customer authorizes the disclosure.

Electronic Fund Transfer Act (1978)- Requires financial institutions to notify an individual if a third party gains access to the individual's account.

Counterfeit Access Device and Computer Fraud and Abuse Act (1984)- Prohibits the use of a computer without authorization to retrieve data in a financial institution's or consumer reporting agency's files.

Cable Communications Policy Act (1984)-Regulates access to information collected by cable service operators on subscribers to cable services.

Electronic Communications Privacy Act (1986)- Prohibits the interception of information communicated by electronic means.

The American Bar Association defines as any acts directed to the computer and computer parts which used as computer criminal tool or it includes the computer crime for the computer and it constitutes abuse. Since they do not general or usually contain physical violence, a computer crime is classified as a white-collar crime. It is difficult to do which in applying the conventional Copyright Act to computer software by courts. The same difficulty exists in trying to apply the conventional criminal law to a computer crime. By judges’ interpretation, in a certain case, including a computer crime was extended by amendment or so. For, example, a judge held "Child pornography is legal." In other incidents, it has been enacted that new legislation carries out the address of the crime unique to especially a computer time.

Generally, the crime of a computer or committed to the computer devices divides into 5 categories: financial crime, software literary piracy (unauthorized copy of an author's computer program), and theft or destructive computer equipment, destructive a programming or theft of programming, theft of data or service, and unauthorized use.

Many computer crimes lapse into the financial crime of a large category. In order to perform business and financial transaction, etc, we have to work for information memory storage and reference, so, more and more we use computer great. This corresponds equally to government organizations (they have to use much more processing by the computer than other do). Using computer in this situation provides the employees (insider) with a chance and other things to do for the crime, that cause of committing the crime leads serious economical loss. For example, the employees of accounting and a computer division is possible dangerous, with small efforts, to be in the made position, because of no-evidence paperwork by office processing -- it is possible to carry out, and it is easy to involve and transmission the money under accounting processing. The possibility of the crime of the area of a financial transaction is great, and economic loss is great in the category of a computer crime.

In most states theft of software is classified as a crime. On the federal government level, the law which protects intellectual property (such as a patent, and the Copyright Act)) has been amended, as result, for the range coverage of a computer program in recent years. In 1990, the federal government law forbids the unauthorized copy of a computer program as aim to control, (in some exceptions, the computer software which rent and leased or has not been with clear permission of those copyright holders) was passed.

A computer crime can be included of property theft. Since a computer component is becoming smaller, more easily to be transportable, according to this, theft of computer equipment (hardware) becomes more easily and more in common. The theft of any goods are included the goods, which relevant to a computer may contain the article further controlled by the computer application program. For example, the employee of the accounting division of a company could be able to operate the general inventory record, in order to make unauthorized shipment of an article secret. Theft of other property comes out, so a certain theft of the article equipped with computer equipment, and aid of a computer should follow the tort law against the act as the same crimes followed.

The political activity, the terrorist, and the dissatisfied employee sometimes damaged computer hardware or computer software physically. These acts included an act that is hard hit or stick to hardware or pistol shooting. For one example, in order to delete the record of a company, the individual had big electromagnet and then walked along the past computer memory storage bank. Other destructive acts required technical awareness and technical facility or equipment. A more knowledgeable individual can damage considerable quantity. For example, a computer program can be rearrange data, exchanging or destroying them. Activating of the command exists by the commanding to tell program to shut the telephone system down, which has been held to constitute a computer crime.

Many people agree that individual is having committed as a theft if using the another's computer or computer information system without authorization. For example, it would be considered to be a theft in such act without authorization to use computer system and data preservation since if a certain employee uses such resources as private appropriation. As well as, it may be sent the file of political campaign by a politician, to private use a government computer, it should also be equally guilty. Under present condition, increasing of number of revision of a criminal code, and a broad of the interpretation on existing legislation by the judge, obtained using computer data and service without authorization is a theft. It is easy to be vulnerable, for especially, at the system that can be accessed by more than two organizations. Also when the code is not changed especially for a long period of time and that makes them wrongfully access the forbidden password but authorization as an individual, compromise it as theft. To break the security code and equipment of a computer, or to read the information in system record roughly, it is generally called as hacking. For example, a hacker decodes a computer secret code or gets access of a commercial telephone system. Once a hacker Stealing into the system of a company, he had the company pay the bill of telephone charges, and he was able to telephone call anywhere in the world. It warns this vulnerable. As business organizations and the government even set the system and depend on it great so that a hacker and a thief may attract attention to the world at the weak point of a computer system.

 Detecting and Prosecuting Computer Crime

As one of the challenge against a computer crime, the crime is not visibility in comparison of other crimes. A computer crime is difficult to be detected for a while. Supposing the crime is performed wisely, the time may pass for a long time, until being revealed a certain crime case happened. Time has passed considerably, even the victimized company or government organization realized the damage that there was the loss of multimillion-dollars after a long time passed. It is difficult to detect and trace who have performed it, even when a certain computer crime was performed clearly. It is because there is "the hidden individual's identity" by the way of anonymity of computer system. In order to regulate such computer crimes, both federal and a state government level have enacted the protection and regulation. On the federal government level, The Counterfeit Access Device and Abuse Act of 1984 forbids using non-authority access and a certain information improperly, including the file of the restricted governmental information, the information of financial information record of a public institution, and the consumer files of the consumer record of public office. The fine is up to $250,000 or the twice as many amount of money fine as a result of the offender's foul, and up to five years of imprisonment. Several states are adding to the law against a computer crime enacted and carried out.

Invasion of the Right to Privacy. Individual, called the word "privacy," has a right freedom from public eyes and to solitude. Infringement of privacy is enacted as one of the tort law.

1. The use of a person's name, picture, or other likeness for commercial purposes without permission. For example, using without permission someone's picture to advertise a product or someone's name to enhance a company name invades the person's privacy.
2. Intrusion on an individual's affairs or seclusion. For example, invading someone's home or illegally searching someone's briefcase is an invasion of privacy. This tort has been held to extent to eavesdropping by wiretap, unauthorized scanning of a bank account, compulsory blood testing, and window peeping.
3. Publication of information that places a person in a false light. This could be a story attributing to a person idea not held or actions not taken by that person. (The publication of such a story could involve the tort of defamation as well.)
4. Public disclosure of private facts about an individual that an ordinary person would find objectionable. A newspaper account of a private citizen's sex life could be an actionable invasion of privacy. An example of what would not constitute this form of invasion of privacy is an article publicizing what a one-time child star is doing today, as long as nothing is revealed that the community would regard as highly objectionable (unless the objectionable information is truthful and contained in official records that are open to public inspection.)

As for the individual, the privacy act protects against the illegal activating. And it may be true, under The United States constitution; there is still limit. In such an illegal activating, the tort law may be a remedy, because of invasion to privacy record of the others, and account investigation of the others' bank without authorization, however, mostly, when individual record was invaded, there is also no physical proof in a house or the place of business, the information is still there, so, how do they proof it? There is no proof of invasion of privacy in this situation. The private act of 1974 would be the model of many states law that regulates a government organization's record etc. Although this legislation is considered as aid against the collection of information on a computer file; or scattering or sprinkling the information, the privacy act still considers as code of the ethics or regulation as law, there is a limit of privacy protection which is still many extent being carried out in the such kind of information on a computer file.

A patent is the right to be granted from the federal government, and the inventor has been guaranteed to be able to product, to use it, to sell or offer the transfer monopolistically for 17 years period, with the design, as for the patent, the few term is given to the design, on the contrary of invention. Usually, when an applicant applies, the patent is the invention, discovery, or a self-authentic-article, and real goods. Both a patent and a design patent must be fully showed the invention or the design which can be usable, and clearly not in the light of technology of the time to the patent office. As for a patent holder, an article and a design is with the word "patent" or "Pat". In addition to it, including this, the patent numbers must be shown on it.

Without patent holder's permission, if a certain company, uses that design, product, processing, and sell this is infringement as violation of a patent. The violation of a patent exists; even making partial copying an invention also is infringement. Often, a patent holder may offer that he sells the license of using the patent to an offender, since lawsuit expense is high. As it seems that expense is high, because of investigation, trace, monitor, so a patent would be low price value for a holder, and it is actually economical difficult to protect it for him.

Once, it was difficult for a software developer and a maker to getting patent protection. Because, in a sense, many software goods were only considered that it would have only completed the automatic procedure by manual. Therefore, computer program was not applied to the article which is novel and it is clearly not the light of the technology of the time. Moreover, for while it was considered that computer program was an expression of math equation and a formula, so, it could not be patentable of software patented. The United States Supreme Court held in 1981, it could be patentable. Of course, a computer program can also be obtained a patent as a process. Consequently, the patent of many software-relative has been published. There was also criticism that it should not be issued because only changed the others' computer program clearly, or the software is not tangible. The procedure of applying patent is one obstacle in order to obtain patent protection of software. The process is high expense and is slow. Especially the element of time is important for patent of software to the desired people. Under a rapid change of computer technology, and improvement, the delay of getting the patent also becomes markdown price in a market. Number of patent is increasing in computer industry, in spite of difficulty. In case of a certain patent breached, the patent holder can sue such as injunction, damages and the destruction of all the infringing copies, and a lawyer's expense and the expense of a court.

Copyright is an intangible right to granted by the statute law to the author or the inventor of production of a certain literature, or production of art. As for the work created after January 1, 1978, the author's whole life plus 50 years can be granted the protection of copyrights by the statute law automatically. The copyright owned by the publishing company will end from the date of publication for 75 years, or which will be the end in 100 years from the date of creation. In a case of the work by one or more authors, the copyright will be for 50 years after the last survivor author's death. The owner of copyright does not need to place "c" or "R" any longer for protecting a work against infringement. An opportunity is it, if someone creates it, someone owns it. 

Works that can be copyrightable are books, records, films, works of art, architecture plans, menus, music, videos, and product packaging. In order to obtain the protection under the Copyright Act, if a work is original, and will fall into one of the following categories: (1) literary works; (2) music works; (3) dramatic works; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) films and other audiovisual works; (7) sound recordings. In recent years, the Copyright Act has been amended include the protection for the architectural plans and computer software. To be protected a work must be "fixed in a durable medium" form which can be perceived, reproduced or can be communicated protection. It is automatic. Registration is not required.

According to section (102) of the Copyright Act, the act excepts the next protection of copyrights "idea, procedure, process, system, method of operation, concept, principle or discovery," although it is explained and is described, or illustrated. If idea is not possible to be copyrightable, the fundamental idea of work may be freely used by others. Copyright can be special way by which an idea is expressed. When an idea and expression are indivisible, the expression cannot be copyrighted.

For example, since they follow the sequence known to everybody, the number of Page can not be copyrighted. Mathematical calculation can not be copyrighted. However, factual edit can be copyrighted. According to the section 103 of the Copyright Act, such editing has been formed of the work by collection, and the article which carried out by preexisting material, or data collected, selected, or coordinated. As a result, by such method, it is generated as the work of the whole of the original authorship as constitutes of original work.

When the form of an idea or expression is copied, An infringement of copyright arises. Reproduction does not need to be reproduced the whole original or it does not need to be the same as original exactly. When an original essential portion is reproduced, piracy exists. People who infringe copyright are burdened with punishment or remedy which is the range from the actual damages (damaged based on the copyright holder in which copyright has actual been damaged by infringement) or imposed at, for the criminal action (they may result in a fine and/or imprisonment), discretion by judgment of a court, and the damages is ruled under the Copyright Act (in which $100,000 may not be exceeded). An exception of the duty of piracy is made under a "fair use" doctrine. In a certain situation, people or organization can reproduce the material of copyright without paying a loyalty (charged paid to the copyright holder for the privilege which can reproduce the copyrighted material).

Section 107 of the Copyright Act provides as follows:

Since these guidelines are very broad, the courts decide whether it is fair use particular on case by case basis. Thus, anyone reproducing copyrighted material may still be subject to a violation.

Fair Use Doctrine.

Professor Smith is teaching summer seminar in a business tort law at the State University. Several times, during a course, he makes the copy of suitable sections from a business law textbook, and distributes them to his students. Smith does not realize that the daughter of one author of the textbook is the member of his seminar. She tells a father about copy activity (Smith makes copies without her father's permission, or his publisher's permission). Her father sues against Smith for the infringement. Smith claims the protection under a "fair use" doctrine. Who will prevail?

Photocopies and Copyright Law- In 1989, for example, Basic Books and seven other major New York publishers sued Kinko's, the national chain of copy stores, for violating copyright laws by producing unauthorized course anthologies for students. For many years, professors on college campuses have assembled excerpts from relevant articles or textbooks into a packet, which would then be copied and bound by a local copy shop and sold to students at modest prices. The problem is that few professors and even fewer copy shops ever bothered to contact the copyright holders of the excerpted pages from copyrighted works to secure permission to reproduce the materials. In defending against the publishers' claim of copyright infringement, Kinko's admitted that it had not obtained permission from the copyright holders but argued that its anthologies were protected under the "fair use" doctrine because the materials were for educational use. The court thought otherwise. Noting that the profit motive for producing the anthologies was of primary importance to Kinko's the court ordered Kinko's to pay the publisher over one million dollars in damages and legal expenses.(Basic Books, inc v. Kinko's Graphics Corp., 758 F.Supp.1522(S.D.N.Y. 1991)) The court's decision has convinced copy shops to begin demanding proof of authorization before agreeing to reproduce anthologies for university courses.

Electronic Copying- Today, electronic has become a further problem for copyright holders, Newsletters, for example, can be scanned using optical character recognition (OCR) programs and relatively low-priced computerized scanning machines. Once a newsletter has been scanned into a computer, it can become part of a company's database and be distributed electronically either through diskette copies, or as is increasingly the case, through local are networks or more sophisticated local area computer networks. Indeed, it is even possible to transmit such newsletters via electronic mail (E-mail) through a telecommunications networks growing "information highway." Nonetheless, such high tech copying still violates copyright law, as officials at Atlas Telecom, Inc., found out after admitting that it had electronically distributed a dozen telecommunication newsletters from Phillips Business Information, Inc. Apparently, for over two years, Atlas Telecom had been making hundreds of copies of each newsletter by putting them on its in-house database. Atlas settled for $100,000 without going to trial. (Junda Woo, "Electronic Copyright May Bring Lawsuits," The Wall Street Journal, October 6, 1993, p. B4.)

In 1980, Congress passed amending the copyright of 1976, which is the Computer Software Copyright Act, and it includes a computer program in the list of creative works protected by the federal copyright law. The statute law of 1980 defines a computer program as a "the directions for being used directly or indirectly in a computer, or set of statements." For the unique character of a computer program, while the courts apply and interpret the act of 1980, They have had many problems.

Traditionally, the protection of copyright was literary works that are printed, written, or perceptible by only human. However, in a language "readable" by the machine, a computer program (it is classified as a "literary work" under the act of 1980) is expressed. Someone said, Should protection of copyrights- "the high level" of a source code- be limited those portions of the computer program which of a language can be read by man? Or should protection extend further to the binary-language object code of a computer program (it can be "readable' only by computer)? In the case of the act of 1982, the source code of a computer program can be copyrightable. It was held by act of 1983, according to the case of (Apple Computer, Inc., v. Franklin Computer Corp.) As a result, the protection of copyrights was extended as including both the object code of a binary-language and the source code of a computer program.

Case:

Apple Computer, Inc. v. Franklin Computer Corporation (714 F.2d 1240 (3^rd Cir.1983)

Sloviter, Circuit Judge

…..Franklin contends that operating system programs are pre se excluded from copyright protection under the express terms of section 102(b) of the Copyright Act…[, which] provides:

In summary, Franklin's contentions that operating system programs are per se not copyrightable is unpersuasive…We believe that the 1980 amendments reflect Congress' receptivity to new technology and its desire to encourage, through the copyright laws, continued imagination and creativity in computer programming…

[Judgement reversed and remanded.]