John Marshall Journal of Computer & Information Law
A Guide for the Legal Status of Software
June 14, 2014
By Daniel B. Garrie
The objective of this guide is not to give a judge a PhD in computer science, but rather, to ensure that judicial decisions reflect an understanding of software’s multiple facets and its relation to the boundaries of the law. When hearing legal arguments involving software, the judiciary should make a concerted effort to examine the software program’s production methodology and intended purpose prior to issuing legal decisions because the decisions should reflect an in depth understanding of the product at issue. A court involved in litigation fraught with software themes should understand the software itself to ensure the delivery of fair and equitable legal decisions.
In the legal arena, judges should review software from different perspectives based on the legal issue presented before the court. For instance, a court hearing an anti-trust dispute, for example, should not be concerned with whether the software vendor tested the software sufficiently prior to introducing it to market, but rather with the software’s intended and actual market effects. In a product liability suit, however, such testing would be a significant issue of judicial inquiry for the court. These examples demonstrate that judges should possess a broad general understanding of software, and should then refine their knowledge based on specific legal issues that are brought before the court. This reference guide, therefore, is designed to provide a high-level overview of software and then examines software in greater depth for specific legal areas likely to spawn legal disputes directly involving software.
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