How Law Works: Collected Articles and New Essays

by Thomas Hemnes

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Only rarely is a reader given the opportunity to peruse a work written by a talented attorney who has been both a skilled participant and a vigilant witness in a development of consequence that has been unfolding for more than four decades. And so it is with “How Law Works,” an anthology of articles in which Thomas Hemnes offers his incisive observations on how the law proceeds to deal with novel issues. Hemnes combines the classical view of how the law is supposed to function, with that of an experienced practitioner who knows how things actually get done. He focuses his lens in particular on how, during the digital era, the relentless advance of technology has driven the evolution of Copyright Law, its morphing into aspects of Information Technology Law, and the growing emphasis being placed on Privacy Law. He describes these developments as a craftsman wielding a deft touch. Along the way, we are treated to his observations regarding trademark law, the freedom-of-speech clause of the First Amendment, and the evolution of legal practice. An informative and enjoyable read!

David Bender
Author, Bender on Privacy and Data Protection


Over the past 45 years, the world has undergone a profound technological revolution. Were a member of the high school class of 2020 to travel in time to 1974, she would doubtless be disoriented by the lack of cell phones, personal computers, Facebook, Internet, World Wide Web, cable TV, streaming – the list is endless. A thoughtful young person would wonder not only how her grandparents lived without such basic amenities but how society crawled its way out of the pre-digital antediluvian slime. In “How Law Works: Collected Articles and New Essays”, Thomas Hemnes acts as our time travel guide, displaying remarkable insight, both philosophical and practical, into how the law, both public and private, has coped – or failed to cope – with these changes. Along the way, he shows us the sights and sounds of our recent past with charm and vivacity.
“How Law Works” can and should be read on three distinct levels: First, the book is a must-read description of how the law, lawyers, judges, businesses (i.e., clients) and the general public have responded to the advent of new technologies, including the interests that need to be balanced to reach a viable outcome. Both the practice of law and society, in general, would be well served if every new lawyer and, in particular, every new judge charged with duties pertaining to computer software, the Internet, data aggregation, privacy, etc. read Hemnes’s book.
Second, “How Law Works” provides the perfect jumping-off point for in-depth exploration of some of the most important issues confronting intellectual property, bankruptcy, M&A, and data security lawyers. Hemnes, one of our leading IP lawyers, pulls no punches, tackling difficult issues, presenting alternative arguments, and challenging the conventional wisdom (even critiquing his own past articles) with clarity and humor. “How Law Works” is the rare “law book” that combines copious notes, case references, and model contract clauses with wit and eloquence. Attorneys charged with arguing a difficult IP or privacy case or drafting a complex technology contract could do no better than consulting Hemnes.
Finally, “How Law Works” is a book that teaches us – what else? – how law works. What happens when a body of law that developed over hundreds of years confronts transformative social, technological, and economic change? How are adjustments managed? Under what conditions does technology shape the law? How can the application of old principles operate to the detriment of a new economy? How does one begin to think about these issues? Hemnes does not pretend to have all the answers, but anyone interested in these questions will profit enormously from his insights.

Bruce R. Parker, Ph.D., J.D


There is no substitute for the wisdom and insights of a true leader in the law such as Tom Hemnes. In “How Law Works,” Tom applies his deeply philosophical approach to the law with his practical expertise to identify what the law, and the legal profession, has gained and lost in the transition from the manual typewriter to the digital era. Drawing from diverse examples ranging from intellectual property to contracts to free speech, Tom takes the reader through key legal landmarks from both a historical and modern perspective. It is a privilege to learn from one of the best!

Prof. Sayoko Blodgett-Ford
Boston College Law School (Artificial Intelligence and the Law, Privacy Law and Mobile Apps and Big Data);
GTC Law Group


“How Law Works” is beautifully written. Tom Hemnes’s prose sings, and his clarity and insight are striking. You will enjoy this read, and you will learn.
You will learn about the tumultuous history of contemporary law affecting intellectual property, technology, privacy, and information. It’s an exciting read, particularly Tom’s sharp and insightful introductory essays to his materials.
You will learn how the developments and trends Tom covers are the building blocks of the next, mind-blowing stages of our electronic personal, business and social worlds - from artificial intelligence, robotics and 3-D printing to virtual worlds and smart homes, offices and marketplaces. This is empowering, and Tom’s thoughtful approach here ensures you see the possibilities and pitfalls ahead.
“How Law Works” should be standard reference material for law schools, law firms and forward-thinking companies and individuals.

P. Michael Nugent
Mr. Nugent has practiced technology, intellectual property and, telecommunications law since 1978, representing start-ups, pioneers, inventors and established, global financial and media companies.


While Tom has watched the law try to adapt to the benefits and dangers of our new digital age from his legal practice perspective, I have, over approximately the same period of years, watched it from the perspective of one having to deal with those changes as a technical practitioner. His explanations of intellectual property law, privacy law, and contracts, their underlying principles and application in this new environment are both clear and illuminating, The range of topics covered, from ordinary language philosophy to the work-a-day machinery of the law, is both thought-provoking and entertaining.

Larry Lannom
Corporation for National Research Initiatives

This book chronicles developments in legal practice, intellectual property, and privacy law from the dawn of the digital age to today’s world of social media and cloud technologies. Part autobiography, part legal history, and part philosophy of law, the volume explores the nature of legal reasoning, property, privacy, and personal identity. Hemnes weaves these large issues into meticulously researched analysis of the legal protection for computer software, the mechanics of software licensing, trademark protection and the use of intellectual property as collateral. Hemnes also considers how and why the promise of the early digital age in the 20th century declined into the rampant factionalism, nationalism, and terrorism of the early 21st century.

An indispensable resource for anyone studying the emergence of intellectual property rights as a cornerstone of the modern economy, this book also serves as a foundational reference tool for professors, students, and practitioners of intellectual property. The breadth and value of information contained within its pages, from the very basics of computer software protection to the intricacies of negotiation strategy for indemnification clauses, warrants a place on the library shelves of every practitioner of intellectual property and privacy law and on the reading list of every intellectual property, privacy and jurisprudence course.

List of Figures and Tables

Table of Abbreviations

Foreword
Robert Merges, UC Berkeley Law School

Acknowledgments

Introduction

Chapter 1 The Practice of Profits
“Paralegal Profitability Analysis” (1984)

Chapter 2 Angular Momentum
“Note: The Speech and Press Clause of the First
Amendment as Ordinary Language” (1974)

Chapter 3 Abracadabra
“The Adaptation of Copyright Law to Video Games” (1982)
“Three Common Fallacies in the User Interface Copyright Debate” (1990)
“The User Interface: Copyright? Or a Right to Copy?” (1990)
“Novelty, Scope, and the Shared Geometry of Patent and Copyright Protection” (1990)

Chapter 4 Private Law
“Software Revenue Generation in Network Environments”
“Restraints on Alienation, Equitable Servitudes, and the Feudal Nature of Computer Software Licensing” (1994)
“IP Boilerplate, Made Difficult” (2010)
“Intellectual Property Indemnity Clauses” (2013)

Chapter 5 Quasi Property 291
“The Bankruptcy Code, the Copyright Act, and Transactions in Computer Software” (1988)
“Computer Software Licensing after the Enactment of the Intellectual Property Bankruptcy Protection Act” (1989)

Chapter 6 Paradise Lost
“How Can You Find a Safe Trademark?” (1985)
“The Qualified Privilege to Use a Competitor’s Trademarks in Comparative Advertising” (1988)

Chapter 7 The Gingerbread House
“The Current State of Privacy and Security Laws Affecting US Businesses” (2004)
“The Ownership and Exploitation of Personal Identity in the New Media Age” (2012)

Afterword

Table of References

Selected Bibliography

Index

Thomas Hemnes is prominent Boston intellectual property attorney and an internationally recognised expert on intellectual property. He has been recognised as a Distinguished Specialist Practitioner by the Solicitors Regulation Authority of the United Kingdom and is featured in the IAM-Licensing 250 – The World’s Leading Patent and Technology Licensing Lawyers. He is also rated AV Preeminent by Martindale-Hubbell 2015. Mr. Hemnes is a Shareholder in the law firm GTC Law Group, PC. Prior to joining GTC, Thomas was partner at the Boston law firm Foley Hoag, where he founded and chaired the firm’s highly-regarded intellectual property department.

A frequent lecturer and author on intellectual property law, Hemnes taught intellectual property for many years as an Adjunct Professor at Northeastern University School of Law and Boston College Law School. He holds a B.A. in Philosophy from Harvard College and a J.D. from Harvard Law School, where he was Articles Editor of the Harvard Law Review. He is admitted to practice in Massachusetts, England and Wales.

Jurisprudence, ordinary, language, philosophy, Wittgenstein, fees, rates, compensation, trademark, feudal, restraints, alienation, protectionism, appropriation, guild, risk, indemnity, indemnification, warranty, paralegal, profitability, leverage

See also

Bibliographic Information

Book Title
How Law Works: Collected Articles and New Essays
ISBN
978-1-62273-826-7
Edition
1st
Number of pages
556
Physical size
236mm x 160mm
Illustrations
9 B&W
Publication date
October 2020
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