Oral-History:Roy Freed

About Roy Freed

Roy Freed was born in New Haven, Connecticut in 1917. He attended Yale University and then the Yale School of Law. He graduated with his LL.B. in 1940 and began working for the U.S. government. Freed served in the Army Ordnance Corps and in the Petroleum Administration during World War II, and worked with the Department of Justice's Antitrust Division until 1951, when he went to work in a private law firm. Then Freed began studying new computer technology and recognizing how computers would influence the legal profession. He helped develop the field which became known as computer law. This involved addressing problems such as computer performance, software copyright, taxation on computer technology, and trade secrecy law. Freed worked for the Computer Control Corporation from 1964 to 1970 and for various other law firms, concentrating upon legal matters involving computer communications and other high technologies, and representing suppliers and users of those technologies.

At the time of the interview he was founder of and advisor to the law firm Brown, Rudnick, Freed and Gesmer's Computer and High Technology Law Group. He has taught computer law classes at Boston University's School of Law, and taught American law at the School of Economics and Management of Tongji University and Fudan University in Shanghai. In 1989 Freed taught American law and computer law as a Fulbright Fellow at Sofia University, Sofia, Bulgaria. He then returned to Bulgaria and gave workshops on the law and computer and communications technology. He was a Visiting Research Scholar at Tokyo University Law faculty in Japan in 1986-87. Freed has written a number of articles on computers and the law, and has given many international lectures on the topic. He is a member of the American Bar Association's Section of Science and Technology and a founding member and past president of the Computer Law Association. Freed is also a sculptor, a member of the Fulbright Association, and a member of the Boards of Directors of the Center for the Study of Democracy in Sofia, Bulgaria.

The interview spans Freed's career, concentrating upon his contributions to the field of computer law. Freed discusses his education at Yale and his decision to attend law school rather than engineering. He describes his government work with the Petroleum Association, the Army Ordnance Corps, and the Antitrust Division of the Justice Department during the 1940s. Freed explains his decisions to return to private practice and to focus on the emerging computer technologies of the postwar era. He recalls public attitudes about the evolving field of computer law, and discusses at length the relationships between computer technology and legal issues such as copyright, taxation, forgery, contract, and trade secrecy. Freed describes Bulgarian and Japanese attitudes toward copyright, law schools' approaches to computer technology, legal indexing systems, and the evolution of privacy law. He also discusses many other topics, including the growth of the software industry despite legal obstacles over the years, and the flexibility of the American legal system. The interview concludes with Freed's explanations of some of his sculptures and his attitudes toward that art.

About the Interview

ROY FREED: An Interview Conducted by Frederik Nebeker, Center for the History of Electrical Engineering, October 9, 1994

Interview #235 for the Center for the History of Electrical Engineering, The Institute of Electrical and Electronics Engineers, Inc.

Copyright Statement

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Request for permission to quote for publication should be addressed to the IEEE History Center Oral History Program, 39 Union Street, New Brunswick, NJ 08901-8538 USA. It should include identification of the specific passages to be quoted, anticipated use of the passages, and identification of the user.

It is recommended that this oral history be cited as follows:

Roy Freed, an oral history conducted in 1994 by Frederik Nebeker, IEEE History Center, New Brunswick, NJ, USA.

Interview

INTERVIEW: Roy Freed

INTERVIEWER: Frederik Nebeker

DATE: 9th Oct 1994

Family Background and Education

Nebeker:

If we could, I'd like to briefly review your career, and then talk more about computers and law, and some other things that you have dealt with. Where and when were you born?

Freed:

I was born in New Haven, Connecticut, in 1917.

Nebeker:

And what did your parents do?

Freed:

My father was at that time a salesman in a men's clothing store. We used to call them haberdasheries. And my mother at that time was not employed — except in the home.

Nebeker:

Right, right. Of course, that was the usual at that time. And you went to Yale?

Freed:

That's right.

Nebeker:

The Sheffield Scientific School.

Freed:

That's right. I was fortunate to get a scholarship to go. When I went it was the Great Depression, which was really not so great, and we were of limited means, so I was fortunate to get in.

Nebeker:

What sort of career did you originally plan for yourself?

Freed:

Well, at the time I didn't have any idea. As time went on I recognized that I had technical skills, and I thought of myself possibly being involved with manufacturing, which I always loved, but I couldn't have anything concrete in terms of plans because I had no means — I had to get whatever education I could. And also, at that time there was serious discrimination against Jews in manufacturing and many professions. The situation didn't really change until the Second World War.

Nebeker:

Yes.

Freed:

And so many of us thought in terms of independent professions. Sort of as a last minute idea, well, I was going to undergraduate school and I realized the realities. My choices then, as it evolved, were either accounting or law. I loved accounting. I am glad I didn't go into it because I think it would be a god-awful boring subject, but Yale Law School was there and I was fortunate to get admitted and get a scholarship. And so my career sort of evolved like topsy. But as I look back I am glad it worked out.

World War II: Army Ordnance

Nebeker:

And you completed your law degree apparently just before the U.S. entered the war.

Freed:

Yes, 1940.

Nebeker:

And you got involved in government work?

Freed:

That's right. I took one of the very few civil service examinations ever offered for lawyers in the federal government. There was a very short period there and I took one, and through that I got a position with the Ordnance Procurement. It was then the Army Ordnance Corps, of the Department of the Army, and they had a branch in Springfield, Massachusetts, and that was my first full-time employment.

Nebeker:

You may know that the Army Ordnance Department was the agency behind the ENIAC.

Freed:

Oh, I know that very well. I hadn't put the two together, but it's exactly right. So I'm well aware of it.

Nebeker:

So it is interesting that you started with Army Ordnance.

Freed:

I found that work interesting because it involved dealing with technical subject matter. It involved specifications, and manufacturing, and inspection, and a subject I was very comfortable with, sort of innately, and when I think back of the items we procured they were so primitive compared to modern technology it is laughable. But we also procured very sophisticated machine tools under the Lend-Lease program for delivery to England.

Nebeker:

I see.

Freed:

So I became quite familiar with manufacturing machines of all sorts.

Nebeker:

Your job was to oversee contracts with these things?

Freed:

That's right. Definitely. I was the contract lawyer and was responsible for handling the legal aspects of negotiations and the preparation of the documents.

Drafting Regulations

Nebeker:

I see. And you continued for the different government agencies.

Freed:

Oh, yes.

Nebeker:

From 1951.

Freed:

That's the course for many people. You keep changing agencies. Not the most exciting positions many times, and they can get sort of boring, and I went to Washington and then I worked for the agency that oversaw the petroleum industry. It was during the war, and it was called the Petroleum Administration for War, and it was like the War Production Board for the petroleum industry, which involved all aspects of that. And again I found the subject matter very interesting because it involved drilling, and refining, and distribution. I sort of took to it like a duck takes to water, and learned a great deal. And there I did a great deal of work in drafting regulations covering the industry, and introduced a technique that I thought would make it easier for people to understand and work with the regulations. I devised flow charts to parallel the words, with arrows and things like that. It hasn't been used much, but at that time we used it, and apparently some people found it quite useful.

Nebeker:

This was for dealing with the regulations in industry?

Freed:

It was explaining the regulations in graphic as well as verbal form.

Nebeker:

Sounds like a great idea.

Freed:

Yeah. It was fun. I enjoyed innovating in that way, and for many people it was easier than plowing through lots of words with conditions. It was the flow diagrams with the conditions that we used. When I think back it was lots of fun.

Nebeker:

That seems to make sense to me for law because it can be so difficult to see your way through it.

Freed:

Laws should be written much more logically, rigorously than most of them are. There was a friend of mine who taught at Yale Law School and then went to Michigan eventually, Layman Allen. You might have encountered him. He was a great expert in Boolean algebra from a legal perspective. And he devoted much of his attention to a normalized drafting of laws, trying to use a very logical, strict approach to establish the conditions. Some of us have thought about that, I think in order to improve it, but it hasn't caught on like wildfire because most people are too rigid and too traditional.

Nebeker:

Yeah.

Freed:

But it should be done in order to make people work more easily with legal rules.

Antitrust Law

Nebeker:

Yes, and you continued working in different agencies until 1951?

Freed:

Yes, right. I came to Boston when I became involved with the Antitrust Division of the Department of Justice. Again, a technical subject matter appealed to me there, and we dealt with industries, and manufacturing techniques, distribution techniques. And when I was in Washington, at the beginning, among my many responsibilities was that of receiving complaints against organized medicine because they were resisting the establishment of what we now know as HMO's. It was the early days. I was influenced at law school to take an interest in that by a wonderful professor I had, and the HMO's were starting to be established, especially in the Midwest and the West Coast, and I, by good fortune, was given the responsibility to receive the complaints and work on that subject.

Then I had an opportunity to come to Boston to work on a very large case for the time that involved the last classical nineteenth-century trust, known as the United Shoe Machinery Corporation. That had monopolized the industry of making machines for producing shoes. And as I think back to the technology that they monopolized, it was remarkably primitive. They were nothing but motorized hand tools. They had none of the machine controls we now know about. It was ridiculous, but it was an interesting case because I had the opportunity to get to know not only the technology completely, but also the people who were involved within it in the industry. And I worked on that until 1951, just before the judge decided the case, and then I moved on.

Nebeker:

I see. Were they forced to split?

Freed:

Oh, yes, they definitely were. The facts in the case were outrageous from a legal point of view. What was interesting about that case from our point of view, our discussion, was that the defendant never threw a piece of paper away. And we were confronted with tons of evidence. The judge remarked that there must have been a million pieces of evidence, and I think he was modest. It was more than that! And we were required to deal with that without any machine help. All we had at the time were old-fashioned Photostats, the glossy pictures of documents. They were heavy. They were shiny, slippery. We had to use grease pencils to mark on them, and in order to compile the evidence we had to use all sorts of indices and other finding tools, managed entirely by people. We had no machine help. And it was extremely burdensome because we were simply drowned in paper, and had to cross-reference and integrate, and create a narrative from all these disparate papers. It was a very challenging experience, and I must say not exciting. It was terribly burdensome.

Early "Litigation Support" Proposal

Nebeker:

Since one of the areas you have done a lot of work in is the use of computers by lawyers, I wonder if just for illustrative purposes you could say how that case would be handled today? How that volume of evidence would be dealt with today?

Freed:

Well, let me have a transition to that question.

Nebeker:

Sure.

Freed:

I moved on out of the government and eventually ended up in Philadelphia, with a large law firm. And one of my tasks was to participate in the defense of a gigantic antitrust case. It was really a multiple of cases brought by the Federal Trade Commission against the oil companies, petroleum distributing companies, and the companies that manufactured and distributed tires, batteries, and accessories. So we called it the TBA case. And it was in the Federal Trade Commission, and there was a hearing examiner, and we were defending at that time Atlantic Refining and some others. Atlantic Refining has since disappeared; it became ARCO, and the like.

In 1959 I had been working on the case for some time, and using the same human technology that I described, and at one point I just became so overwhelmed with the oppressive work, the boredom, the drudgery, that I literally blocked, and couldn't read the words on the page of the transcript any more. The transcript had become a few feet long. Because we had to rely only on our minds, we were constantly getting new ideas, new approaches as items would turn up, and would have to review the transcript, read it over. And it became so boring to go through that, that I couldn't stand it any more. Instead of having a disaster I had an opportunity, which was very fortunate. I had many opportunities in my life for which I am thankful, and that was a leading one because it led to a career change. What happened was that I had had some exposure to old-fashioned punched-card systems, machine-punched card systems —

Nebeker:

Right.

Freed:

Call them IBM systems, but they really were introduced by Sperry Rand. And in my travail I thought about those systems, and I wondered if with my non-professional engineering, my natural aptitude, I could devise a system to organize records in large cases which included the individual documents, the letters, the memoranda, reports, and the transcripts of testimony and depositions through the use of these machine- punched cards so that we could search by means of the sorting system...

Nebeker:

It would be a finding aid, and index.

Freed:

That's right, that's right. But the problem was at the time that you couldn't have the inverted file approach. You had to categorize everything as you put it in because you couldn't find anything you didn't categorize. So it created quite a challenge, but what happened was that I designed the system. I conducted a system analysis in my own personal way, and identified the factors that were pertinent in this operation and set forth the principles, and designed the forms and things like that. And it appeared in April 1960 in a law journal called the Practical Lawyer, which is published by a unit of the American Bar Association. That article was significant for the fact that, I think, the only two people who ever read it were myself and the editor! I got absolutely no feedback. But the article was historically significant because it was the first published description of what we now call a litigation support system. It was not feasible at the time. The technology was too primitive. But the principles were valid.

Many years later the people started to use computers to devise those systems, and they were really useful because you could use the inverted file system. You could create specific questions tailored to your needs and then search the files.

The files would be indexed freely. Many times using most of the words of the text, and by Boolean algebra formulations, you would create your questions and be able to find things, and also you could find things by names of people and subject matter, and the like. So it was interesting that that was the unrecognized forerunner. But today, and for the last few decades, there have been very elaborate systems offered by very large companies. It is a regular service to the legal profession now that makes the handling of those cases completely different from what I had to confront.

Nebeker:

Yes. Did you actually use punched cards for that?

Freed:

No, it was never used. I just designed it. It was completely academic. No one used it, but it was a very interesting step because it was intellectually challenging.

Nebeker:

It probably got some people thinking about ways to —

Early Interest in Computers and Law

Freed:

I wonder. I never got any feedback, but it didn't matter because what was significant to me was that at that time I was in Philadelphia, and as you referred to the ENIAC, that is where, presumably, some computers were born. There is a big dispute about who invented what, but in any event Eckert and Mauchly were there, and Sperry Rand was there, and there were many people interested in computers. And as I was working on the project, and undertook to meet people and ask them questions, I kept hearing about digital computers. And that was, you see, in 1959 that I started this project — it was published in April 1960 — and I kept hearing about the wonders of digital computers. I mean, it was in a very off-hand way. It was on a street corner really, and I kept hearing about the fact that this was the so-called Second Industrial Revolution, that computers were increasing the power of peoples' minds the equivalent of the expanding the power of peoples' muscles in the first Industrial Revolution.

And in some way that I simply cannot explain, but then I suppose this is the way lots of ideas derive, I got the idea that the technology was in the near future going to have great legal significance. And I wrote an article called "A Lawyer's Guide through the Computer Maze." I established a relationship with the Practical Lawyer's editor, and when I submitted the manuscript for that he grabbed it. He was a very imaginative person. His name was Paul Walken, and he recognized novel ideas, and he grasped that. That was the first published article in the world on the importance of giving attention, from a legal perspective, to the various ramifications of computer technology.

Nebeker:

Yes.

Freed:

And people started to identify the subject matter as Computer Law, without really understanding the full significance. As a matter of fact, I probably didn't either at the time. I didn't step back far enough. But I think that I was early in the game in seeing the very diverse ramifications in the law. I loved to conceptualize broadly and that was the beginning of it. And to me that was extremely significant because it rescued me from the type of work I was doing, which I really didn't like. I mean I didn't identify myself as a great litigator, and in my boredom with a lot of legal work — I must admit, it was boring and unsatisfying. I took refuge in my mechanical skills and craftwork. Making furniture, and trying a hand at copper fabrication, you know, making bowls and things like that, and people used to think of me more as an artist than a lawyer. Then I had searched for a way to get out of antitrust, and then I really continued my interest in the medical legal field, which I had started with the antitrust division, but I was simply thirty years too early. That eventually became a very interesting field, long after I had developed this computer law and developed a reputation by engaging in lots of thinking and writing. I liked to approach the various subjects, aspects of the technology from a legal point of view, and I have written very widely on the different aspects.

Nebeker:

So at that time in the early 1960s you were working for a law firm in Philadelphia?

Freed:

That's right.

Nebeker:

Did you get involved at that early stage in any cases that involved computers?

Freed:

No. That didn't come along yet. I mean, I was a pioneer.

Nebeker:

You had foreseen it.

Freed:

I foresaw it, but then I continued to foresee it for many decades! People would continue to say, "Oh, that's going to be a great field." Even after I had developed a considerable practice in it. It is amazing how it eluded the understanding of people. I just cannot understand that fact. But it just went on for a long time. And even today, I speak to people and they say, "Oh, that's going to be a great field." And I've been practicing that for a long time. I'm out of it now — I mean, not out of it completely, but out of it in the day-to-day activities. I still try to think about it broadly and conceptualize, and write articles. But it is amazing how slow people were to grasp the significance of the subject. For the longest time, and even today probably most people think of it in terms of intellectual property significance and, say, copyright of material used with computer systems, software programs, and databases. And with matters of privacy and the like, possibly fraud and criminal involvement.

But they don't think of it in terms of, say, the taxation of income from the marketing of software, or the deductibility of expenses for the creation of software and in terms of contracting techniques for the technology, which is quite complicated for most people. And, as a matter of fact, the fault in giving attention to the contracting permitted debacles to occur long after they should have. People couldn't readily appreciate the nature of the technology from a legal point of view, which means in its generalities and its simplicities, as against the arcane treatment that computer specialists try to present. They try to show how smart they are, and how they see the intricacies, and the fact of the matter is from a legal point of view and from a general readers' point of view you have to look at the broad generalities and simplicities, and look for analogies to phenomena already existing in institutions.

Computer Control Company

Nebeker:

I would like to explore all of that more, but maybe we can continue with the review of your career. And then in 1964 you started work with the Computer Control Company.

Freed:

Yes. That's a very interesting story, and it's amazing how things happened. In October 1960 some imaginative people at the Law School of UCLA decided to hold the first national conference on law and electronics.

Nebeker:

What year was that?

Freed:

1960.

Nebeker:

1960.

Freed:

It was at Lake Arrowhead. And in April 1960 my article about a very primitive searching system was published. And I had in the works this much more sophisticated, advanced article on subsequent legal aspects of computer technology, scheduled for November 1960, and here was this conference in October. And I didn't yet have the general recognition that enabled me to participate, but somehow I was a resourceful lawyer, and I got myself an invitation. I arrived at the Los Angeles airport, and there was a fairly good-sized man there, and we got talking. His name was Ben Kessel, and he was the president of the Computer Control Company in Framingham, Massachusetts, which was one of the pioneers in making high-quality standardized printed circuit boards. The company at one point decided, if they could make printed circuit boards for others they might try making them for themselves and putting them together as minicomputers.

Ben and I rode together to Lake Arrowhead in a limousine, and became very friendly, and maintained this friendship over the years. And when the company eventually was looking for an inside counsel, I had the inside track apparently, and became inside counsel, which I found very exciting: to be there on the ground floor, because they were not only assembling minicomputers, but they also started to make computer chips. They had an experimental lab in the basement, and it was interesting to observe the beginning of that technology. I loved the technology, and I loved being where things were going on, and talking to engineers. So I was inside counsel for them until they were acquired by Honeywell.

Nebeker:

That was in 1970?

Freed:

A little before 1970. In 1970 I left.

Nebeker:

Could you tell me about your work with them?

Freed:

Well, I was general counsel there, so I handled the general corporate work, just running a corporation, which was something I had never done before. And fortunately I grasped it readily because it really isn't terribly complicated. It's housekeeping for corporations. In addition I handled their contract work in dealing with customers and identifying legal questions that impinged on any questions of taxation and the like.

Relation of Computers to General Law

Nebeker:

How did that work for that computer company — any computer company — differ from the same position for some company manufacturing luggage, or something else? What issues came up?

Freed:

Well, you're putting your finger on what computer law is, and computer law is really the general law involving the operation of businesses in a computer society. It involves the subject matter of computers as involved with the operation of companies. In other companies, for example, you have the question, could records, lists of stockholders, be kept in computer systems rather than just in traditional printed records and things like that? You also have tax questions involving the taxation, say, of computers as tangible personal property. Were they used in production or were they used in record keeping, these technicalities of corporate law? And that is really what computer law is today. It is not a separate legal field, but it is a field in which the general body of legal rules is applied to a specific technology.

Nebeker:

Yes.

Freed:

In medicine for example, you find the general rules applied to medical subject matter are liability, record keeping, patient privacy, confidentiality, and informed consent. So this is the field. So there I handled the general corporate matters of keeping the company out of trouble with regulatory agencies and also mainly helping identify the subject matter of transactions, or contracts, specifications in particular. Helping to write specifications and performance tests so that we could identify what the customer was entitled to receive and we were obligated to furnish, to try to minimize, if not avoid, misunderstandings and lawsuits. That was a major responsibility of mine, and a major one throughout the whole industry, and one in which from my observation, it was terrible to fault. There was a failure of people to cut through the gibberish of the technical people.

Nebeker:

With a new product, a new technology that is evolving all the time, it is much more difficult than with some well-established business.

Freed:

Well, but that's the challenge. That's why you are hired to be a lawyer, to be responsible and to be innovative, and to think independently. And so I've been impatient with a lot of my colleagues because these terrible misunderstandings continue with great losses to users and to suppliers as a result. But I think that is the responsibility of a professional, to grasp the subject matter readily and to the extent that you have to do it. I mean, that's what lawyers handling malpractice matters do. They become quite knowledgeable about medical matters. But that's why they are there. They're generalists in offering themselves as people who are skilled in handling different types of transactions.

Nebeker:

Something you alluded to, maybe the tax status of a computer, whether it is part of the production equipment or whether it is record keeping. One problem is that computers are new and evolving all the time, so I can see that that gives rise to the difficulties of contract. Another is that computers, even at that time, were fairly general-purpose devices, and so a company might use it in various ways.

Freed:

And this introduces questions.

Nebeker:

Yeah.

Freed:

I had an interesting matter. It was a very novel matter. I represented a company called First Data Corporation. There were since other corporations of that name, but I think we were the first to be the First Data Corporation. It was a so-called commercial timesharing company, or an on-line service bureau. It literally owned, which was significant, two Digital Equipment Corporation PDP-10s, very large machines. Up to that time companies tended to lease their equipment. We had a question of the applicability of the personal property tax of the Commonwealth of Massachusetts. That tax tends to be very onerous. If the machinery has a high value the rate is high and it can impose quite a financial burden on some companies. During the Great Depression, when there was lots of unemployment, in order to try to stimulate employment Massachusetts and some other states introduced exceptions to that. They said that the equipment would be exempt where it was used in manufacturing. And manufacturing became interpreted to be a term of art, not literal, and a manufacturing operation was one in which the nature of matter was changed. You tried to apply that. We found it important to get an exemption because the companies that leased their equipment didn't have that problem. They didn't own it, you see, and therefore they weren't exposed.

This would have been an unreasonable tax. And I tried to take make the argument that in using that equipment they actually were being engaged in manufacturing. I drew first on the analogy to electric power companies, where they are considered to be engaged in manufacturing, and their equipment is exempt. I tried to indicate that the company was performing operations for their customers, operating the computers in such a way that the activity fell within that rubric. I lost in Massachusetts. I was very early in that situation. But many years later in a Midwest state the court bought my argument. Not from me, but from somebody else. But it's the type of legal challenge that we've had. After all, if a company engaged in making sandwiches for sale, it could be engaged in manufacturing, and my feeling was that that was the case. It turned out to be extremely important, as time went on, but this is a type of example that lawyers in my field were presented with.

There were two problems. One is, I suppose, that I hadn't really refined my thinking as much as I should have. The second was that it was almost impossible to get my witnesses to testify to the way I saw it, which was a more accurate description from the buzzwords they used. I mean, they couldn't picture some of the situation from a legal perspective. And the third was, the fear of the Supreme Court of Massachusetts, that if they gave us an exemption they might be opening a Pandora's box which they couldn't identify, you see. And the fact of the matter is it wouldn't. It was a very limited application.

Nebeker:

I didn't quite understand that second one? That the witnesses were speaking too much in —

Freed:

In computerese.

Nebeker:

In terms that were unintelligible to others.

Freed:

In computerese, yeah. That's always a problem. I had a problem when I was with Computer Control. We had a contract dispute, and we were in the Federal Court in Rochester, New York, and I had one of our people there. We had an outside litigator handling that. They referred to TEL-CON, which is, you know, a TELephone CONversation; it is simple. But he got so mixed up with that, and he couldn't say, "It was a telephone conversation, it was a record of a telephone conversation." You know, he just couldn't explain it in a simple way. It turned out we won the case, but it is funny how you get into these patterns that it is difficult to persuade people, or enable people, to get out of this gibberish.

CCC Buyout & Entry into Private Practice

Nebeker:

Do you remember any other cases in your six years or so with Computer Control Company?

Freed:

Most of it there was routine work. We eventually had a challenge. Honeywell came to our rescue. The company had run out of money. They weren't as aggressive and resourceful as Ken Olsen's company, Digital Equipment. It is funny to think of us in the same brand — we sort of went by the wayside and DEC took many more years to have the problems. And Honeywell came along and acquired us, and the big thing there was handling the merger. Our outside lawyers, acting as most outside lawyers do in wanting to make sure that they were protected against any possible accusation of not doing things completely, suggested we get Department of Justice approval of the merger. I was laughing to think that by Honeywell's acquiring us it would be significant from an antitrust point of view. I insisted that we wouldn't, based on my antitrust experience. Things worked just fine. That was when you had IBM and the seven dwarves. It was a different world.

Nebeker:

Yeah.

Freed:

The world was so dynamic then. I was with Honeywell for a short while, but it was not satisfactory working for a large company, getting swallowed up. A friend of mine downtown in Boston, in private practice, recognized what I was doing and the reputation I apparently had achieved from my writing and speaking widely, all over the world. He invited me to go in with their firm. I went into private practice then, and remained until retirement.

Nebeker:

I see. Is that the Brown Rudnick firm?

Freed:

No, that was the last one that I was with. The firm then was Widett and Kruger. That was a small firm then, and they were in general practice. He could see that this identification with high technology might be attractive to them, and so I went with them.

Nebeker:

That was in 1970?

Freed:

Yes.

Algorithmic Approach to Contract Law

Nebeker:

Are there any cases you recall, or contract work, or anything that you did there that was interesting from the standpoint of computer law?

Freed:

Well, most of the work I did involved computers. And most of the work I did with computers was handling contracts between suppliers and customers. I should say, I represented both, in different situations. I was very fortunate in having them mixed. It is hard to glamorize it too much, but it involved my interpretation of the technology from a legal point of view. I guess one of my problems has been — I have found by simplifying matters, clients didn't see the glamour in it. But I couldn't help it. I mean, that was my nature, trying to cut through the complexities. Most of the work I did was trying to interpret the technical specifications to people, and helping them.

Nebeker:

In the context of lawsuits?

Freed:

My main role, as I identified it, was to try to avoid lawsuits, because I think that is the responsibility of lawyers. To engage in what many people call preventive law. I mean, that is what we are hired for. What I found interesting, I suppose, is this: as I think about it, you work with people who design programs, and they have very logical minds. They're very systems oriented. And that's what a program is. It prescribes how things will happen under certain circumstances. But they couldn't translate that skill into the system involved in a contract. They couldn't think in terms of responsibilities of the parties, what can go wrong, how to handle those things that go wrong. It was amazing to me how that was, and I used to consider my main responsibility to try to get into the transactions as early as possible, to try to introduce that type of professional skill.

Nebeker:

It's a kind of an algorithmic approach to a contract.

Freed:

That's right, yes.

Nebeker:

Specifying, "This is how it might go. These are the possibilities."

Freed:

Well, I always picture contracts as the equivalent for people as programs for computers. I think that is an apt analogy.

Nebeker:

The whole art of computer programming, of course, is to be able to specify the process so fully that it is —

Freed:

It will work.

Nebeker:

That the computer will run through it. And you want to do that with the contract?

Freed:

As much as possible. You see, you don't have the luxury of being as certain with contracts as you would with, say, a program because you have the factor of people and the unpredictability of people, and then also the possibility of many possible circumstances arising that can’t be anticipated. But you have to do the best you can. I think that is the responsibility of a lawyer in that situation.

Nebeker:

But what you are saying is that this more algorithmic approach was more unusual. It wasn't the usual way.

Freed:

I think so. That's my impression because in so many cases outside, elsewhere, I mean, there were disputes that were terrible. Acrimonious. Expensive. People's businesses were jeopardized by poor contracts, failure to identify responsibilities. For example, in so many cases they failed to specify what the customer was supposed to do in order to enable the supplier to do its part. I mean, it is amazing, the primitiveness. I am astonished as I think back. I was astonished as I was going through it! I'm still astonished to think of it.

Nebeker:

I know of some disputes when the customer will change the specifications at a late date, or —

Freed:

They have to provide for all of that.

Nebeker:

Right.

Freed:

And you have to provide. I mean, changed orders are nothing new. I had changed orders when I did my first job. They're classical situations. You have to provide for it, and how to handle it, and how you resolve misunderstandings. People would not think of such things. It is ridiculous to talk about it. Such simple things as: when you have a circumstance, who takes the first responsibility. People don't do things mutually. Someone has to propose, and the other party has to respond, but within certain limits, you know, and this sort of thing. I mean, this is all so orderly, and yet you talk about many contracts where the parties will not mutually agree, and then that's an invitation for a fight because it doesn't work that way.

Nebeker:

Yes.

Freed:

It's funny. Talking about this, the last transaction I had, in 1986, was a classical one, and it was absolutely beautiful, and it involved representing Massachusetts Institute of Technology in dealing with Wachovia Bank, down in North Carolina, which was a very large service bureau. It was a subsidiary of the bank, a service bureau to do the data processing of college student loans. And MIT had decided that the operation had got beyond their capabilities, and they wanted outside help. They looked for a specialist and they had a young technical consultant, outside and independent, and a young lady, who was the bursar, whose responsibility it was. She had a doctorate in health sciences, or diet, something like that.

And we had such a joyful experience; it was such a contrast to other transactions that I have experienced, and I hear about. We had a perfect team, and we were able to persuade Wachovia to abandon its printed form and let me draft an agreement at the very outset. A general structured agreement from which we would negotiate. It was a veritable love feast, and I would get calls from the bursar for many years later saying, you know, "I keep that contract in my desk, and I have questions come up, and we look at it, and its fine. It solves everything." It is such a model of how things should happen, where we took a very reasonable approach. In so many cases the parties try to take an overreaching approach. They think they can back down, but it introduces acrimony and misunderstanding. But there, by sheer reason and attention to details, we were able to come up with a very major transaction that both parties enjoyed living with. I wish I'd had more of those earlier in the game, but you don't get reasonable clients and reasonable suppliers.

Nebeker:

It certainly requires the parties' agreement.

Freed:

Yes.

Nebeker:

If one doesn't know the kinds of things that happen with large software projects and so on, you won't foresee problems.

Trade Secrecy and Software

Freed:

That's right. It requires considerable understanding. I have been fortunate. I find it amazing to reflect on it, that I could use just a general technical aptitude, without any engineering training, no education specifically in computer technology and programming. By osmosis I picked this up. I think in many respects I was fortunate, because I could come to it freshly, not being infected by the buzzwords and the jargon which had misled so many people. Because in so many cases it is meaningless. We've had a very interesting experience in this respect, and I think an awful lot of people have not been able to derive a historical perspective in order to understand what is happening. In the beginning, when the major manufacturers, when IBM and the seven dwarfs realized that they could take the responsibility to furnish all of the software programs for their equipment, at that time they were doing that in a so-called bundled arrangement in which for a single lease price the customer had the opportunity to utilize whatever software programs the company had.

Nebeker:

Yeah.

Freed:

It was sort of a free-flow, imprecise arrangement, but that's the way it worked. And then IBM was pressured by the software industry people to change that method because they felt that it discouraged people from paying extra money to go to independent software suppliers. Which was understandable. It was reminiscent of the big monopoly that RCA had of radio, where by charging a fixed royalty, radio manufacturers which were really only assemblers had no incentive to go outside and pay more royalties to someone because the industry was kept at a low level. So IBM was pressured; an antitrust case was brought against them that eventually went nowhere because again the lawyers couldn't understand the industry, the technology. It so-called unbundled, and set up specific charges for leasing the equipment and for utilizing the software programs. Then there was the challenge of how to market the programs, because the subject matter was very valuable. It is intellectual property, and if a supplier wants to get income from it, it has to prevent others from using it without paying it.

So the people sort of took an approach based on traditional law of so-called trade secrecy, which was developed at the end of the last century in order to make it feasible to market industrial processes. With the industrialization after the Civil War, many industrial processes were created. Because lawyers in this country didn't understand so-called common law copyright, and our federal copyright law covered only published works until January 1st 1978, which is an anomaly, they, as part of the law of unfair competition, created something called trade secrecy in which it is feasible to transfer knowledge about industrial processes under restrictions against further transfer and disclosure and things like that. So that when the software programs came in, without thinking it through properly, they sort of sensed the analogy. The analogy is complete. Software programs in my mind are processes.

Nebeker:

Yes.

Freed:

Processing differentiated streams of binary digital pulses, and they are just like operating a chemical factory. I think the analogies just jump out at you when you relax. And that has been my secret in practicing law, that ability to see these analogies and see the relationships. Well, the programs that were offered were programs for mainframes. They were fairly significant programs, and they were licensed to the users for fees without calling it trade secrecy in most cases. IBM just was repelled by that term. But that's what it —

Nebeker:

But they would still write a contract that you may use this but you may not give it to —

Freed:

That's right, yes. But they did not identify it as unpublished copyright, as common law trade secrecy. They didn't characterize it specifically, but they did it. That went on for quite a while until all of a sudden something strange occurred. These crazy personal computers came along. And they weren't mainframes. And then, you know, there were programs for personal computers. Suppliers had to devise a way to market them. By "suppliers," I am including their lawyers: either they didn't understand the difference of programs offered for personal computers from those for mainframes, or they tried to overreach, and tried to get legal opportunities to which they weren't entitled, they patterned the so-called shrink-wrap licenses for personal computers on the other ones. They imposed license conditions, and restrictions on use and transfer.

Nebeker:

So when you purchase this software, you bind yourself not to —

Freed:

Well, they think you do. You see, there are two ways to make a contract. One is that you get both parties to sign a document, and the other is you get a party committed by virtue of taking action. In this case they still do. An agreement form is exposed under the plastic; therefore it is called shrink-wrap, and it says that when you tear open this package you agree to the terms and conditions, which is a valid way to form a contract in many circumstances, but not universally. What they tried to do was to impose licensing conditions in those that were more appropriate for the mainframe, because my feeling is that these transactions are more in the nature of the sale of books. You go to a store, or you deal by mail, and it is very impersonal, and these works are really published works of authorship, just like books, whereas the materials for mainframe programs and genuine license agreements negotiated and dealt with specifically, are more like unpublished works. We have this dichotomy, which is very fundamental to copyright law, but which very few people understand anywhere.

Nebeker:

And has that dichotomy been applied widely in programs?

Freed:

No. That's the irony of the whole thing. There is still a persistence, much to my chagrin, in marketing personal computer software programs that are unreal, and I think the agreements are to a very great extent not really enforceable in accordance with their terms. But there has been a lack of understanding on the part of the people dealing with them.

Copyright Law of 1978 and Software

Nebeker:

What about the effect of the 1978 copyright law?

Freed:

The new law, current law, took effect on January 1st, 1978, and it is very significant in that it finally included under federal copyright law unpublished copyrighted works, because there is always a need for legal protection of unpublished works because they simply exist in tremendous quantities. Before that the courts tried to create something called common law copyright, based on an old English approach. But no one ever really understood it because we were more interested in trade secrecy that arose from industrial processes because of the failure of the federal law to recognize unpublished copyright. It is very interesting to apply this — I hope I am not boring you.

Nebeker:

Oh, no.

Freed:

But it is fascinating to see how computer technology has had an impact on the rules of law which is not always recognized. For example, when major software programs for mainframes came in, it was the first time in American legal history that unpublished copyrighted works were distributed in large quantities. Whereas when you had industrial processes, you know, how many companies are licensing the catalytic cracking process, and things like that? But people couldn't shift their mental gears, and they would think that publication involved distribution of large numbers of copies, which occurred, but publication doesn't require that. Publication involves the distribution of works of authorship without legitimate restrictions on further transfer and use, and transfer of the subject matter. I mean, that is non-publication. But there has been a failure to grow with the technological implications. I mean, I find it fascinating to see the fault on the part of lawyers in grasping this wonderful opportunity to see the richness of the law, the dynamics of the law, and to grow with the needs of technological development.

Nebeker:

Was the 1978 law formulation influenced by the existence of programs?

Freed:

No. That's interesting. I'm so glad you asked. There was Section 117 of that law in which Congress said that subject matter, materials for computers — I'm speaking very loosely, imprecisely — the copyright availability of that subject matter will be determined in accordance with the law as existed on a certain day, I think December 31, 1977. But there was no clear law. It was a finesse. And they set up the National Commission on New Technological Uses of Computer Works. I can't remember exactly, but it was the CONTUC Commission. Arthur Miller of Harvard Law School was on it, John Hershey the author, Melvin Nimmer the great authority on copyright — Nimmer's copyright treatises are seen everywhere, and a number of others. The problem there was, they were supposed to come up with the recommendations for legislation to replace Section 117, because there was recognition in Congress that they didn't know at the time.

What was interesting was that the people on the Commission and their staff didn't really understand computer technology. They didn't do a thorough job; they just looked at software programs. They didn't look at databases. How can you separate them? It just doesn't make sense. They certainly didn't look at other items that would be involved with computers: the computer creation of documents, and things like that. They made recommendations and Congress took some modifications recommended by the Department of Justice. The new Section 117 which was introduced in 1980. The 1980 amendments to the copyright acts states that owners of software programs may make one copy for backup purposes, and may modify the computer programs for use in their particular system, which is something that is required. But they failed to recognize that we have a wonderfully rich and elastic doctrine called the "fair use" doctrine, which makes copyright work. If you only had copyright law that forbids the making of copies, it won't work. There are certain circumstances in which, from a social point of view, you have to be able to make copies without permission and without charge, to write a literary review, to use in a lawyer's brief, to use in a research report. I mean, this is well-recognized.

Nebeker:

Yes.

Freed:

And they failed to recognize that with the new technology of computer software, it is recorded on media that are vulnerable to destruction, and therefore it is essential that immediately after you get it you make a copy for backup purposes because the copy you have can be destroyed, or lost, or something.

But instead of relying on that they introduced this silly rule. They defined a computer program to mean a series of steps, which is right, but then they used the word to mean the records, which is wrong, you see. They intermixed it, and therefore you cannot logically apply the provision because the owner of —

Nebeker:

What records?

Freed:

The media on which the software program is recorded: the tape, the diskettes, things like that.

Nebeker:

I see.

Freed:

And the printouts of the object code, the source code. They failed to distinguish between the media that are vulnerable to destruction and those that are not. They had failed to distinguish between media that the software supplier offers for low prices, and therefore reasonably should be acquired from them, and media that are expensive and therefore you should make a copy without having to buy additional ones, things like that. There was just a lack of understanding. John Hershey got terribly romantic and sentimental, saying, "How can you apply copyright to this mechanistic stuff?" Failing to recognize — and this is to me the significant point — failing to recognize something we learned from computer technology about the nature of copyright. I think that computer technology really gives us the insight into copyright that we never really could get before, and that is that works are works. They might be copyrighted or not, but works are things that are used to introduce signals to computers and minds for processing in accordance with programs. That is what a work is. A book introduces signals. Sculpture introduces signals. A painting introduces them, a motion picture does, and that's what they do. And I think that when we see the function of input in computer technology we come to recognize that that is the essence of a work of authorship, and then you come to apply copyright to them as appropriate under the law.

Nebeker:

I see.

Freed:

But this is the type of exercise that I found so exciting in my practice. Standing back and developing the conceptualization of —

Nebeker:

So, the computer can at least clarify the situation.

Freed:

If people would only step back and look at it in a broad context.

Computers and Law in Japan & Bulgaria

Nebeker:

I know you have been concerned with legal systems of other countries, Japan and Bulgaria in particular.

Freed:

Yes.

Nebeker:

Are there countries you know of where copyright of software was less troublesome because of the way it was handled under existing law?

Freed:

No. I spent a considerable time in Japan. I spent four months in the fall of 1986, and four months in 1987. I had a title of "Visiting Research Scholar" at the Tokyo University Law Faculty. I used that opportunity to circulate in the community, among business people and lawyers and computer people, to explore the understanding of the “copyrightability,” or the legal protection, I should say, of software programs. I went there with this notion of trade secrecy embedded in my mind. It was natural in our environment, and I couldn't escape it. I went there to try to find an approach that would be universally acceptable, because we need that to engage in international commerce. I mean, we just can't have separate bodies of law. In the course of it I interacted with a very bright young man in the copyright division of the Ministry of Education in Tokyo. He spoke English and he called me his sensei, which means his professor, and it was a very flattering treatment. We talked about these things, and the Japanese at that time were unable to picture the analogy between the use of human minds and the use of computers with respect to the works of authorship. If only you draw that analogy, you see that so many of the things we do with computers are just what we do with human minds.

Nebeker:

So the tendency there would be to have completely separate laws dealing with —

Freed:

They had even a political motive, or maybe political. It is hard to characterize it. The Japanese have a unique mentality. They consider themselves to be a poor nation. They are an island. They have no petroleum. They have limited natural resources. So they have this mentality of being very poor. With that they think that because they are poor they are entitled to use other people's things without paying. It persists, even though they are very rich. We have experienced that interacting with them. We were talking to a woman in Shanghai, where I was teaching in 1988. She was teaching. She showed us a picture of a very beautiful home in Osaka, and she was crying how poor they were. They just can't get over it. So what was interesting was that MITI, the Ministry of International Trade and Industry, in the — in the late 1980s got the notion that instead of treating recorded media for software programs as traditional works of authorship under copyright, they would create a thing called a "program right". A unique — sui generis they love to call it, a unique legal approach.

They had Professor Nakayama at the Tokyo University Law Faculty write articles about how it was fundamentally impossible to apply copyright to works of authorship. You see, the term "intellectual property" was a trap because it suggested too much the human mind. These aren't for the human mind. These are for machines. I mean they couldn't picture the fundamental nature of introducing input for processing that I see. So he wrote articles that committed them to that. They couldn't change their minds without embarrassment. But the hooker in it was that under the program right it was permissible for people to use the subject matter of software programs without permission under the payment of very small royalties. That caused an international ruckus, as you can imagine. It was really an effort to poach the programming of the Americans, who are the leaders in programming. The Japanese had great difficulty in coming up with programming. Their minds worked differently. They talked about doing it, but they think more emotionally than logically in many respects, based at least on my observations. That program right didn't die until recently. Even though in legislation they said that program materials were subject to copyright, MITI persisted because MITI was a competitor to the copyright division of the Ministry of Education in trying to introduce its program right. But it was interesting talking to them and observing how by this inability to draw analogies to the human processing of subject matter, they could get the answers from a computer, that it wasn't so different.

Nebeker:

Well, something that is very interesting to me is the way a culture, a society, shapes its technologies and technological products. Sometimes that has to do with the legal structure of a country. An example of that is with the telegraph systems of the late nineteenth century, that in the United States we use the Morse key and sounder system. Messages weren't written down automatically, but just by hand, whereas in France they used these automatic recording telegraphs. The explanation that has been given by historians is that the legal structures of the two countries should account for that. In this country Western Union — people tried to sue them but didn't succeed, and, they didn't need personal accountability of what happened at each stage. But in France they did because the Ministry of Post and Telegraph could get sued and then they would say, "Well, this was the message here," and they could, you know, pinpoint the problem.

Freed:

That's fascinating.

Nebeker:

So legal differences caused a different technology. I'm wondering if this example with Japan, the legal difference in the way software is treated, had some influence on the software industry?

Freed:

Well, the legal treatment was inspired by this cultural attitude.

Nebeker:

In wanting to take advantage of American programming.

Freed:

Yes. Law really reflects the society in so many respects, I think. In some cases laws may be used to influence norms, and behavior, and attitudes, but in most cases it is the result of the attitudes and the culture. Now, what I found interesting, getting back to Japan, was that when I was living there, I was able to get away from this obsession with trade secrecy. Section 301 of the copyright act said that copyright pre-empts protections in the nature of copyright, but not other ones. That's not the precise formulation, but you get the idea. I and other people took the position that trade secrecy is different. Therefore you can have trade secrecy and copyright.

As time has gone on I have come to feel that trade secrecy is really nothing but to a great extent unpublished copyright. That we simply haven't understood that trade secrecy came in as a makeshift measure in the absence of unpublished copyright. There would be a great advantage if people could shift their mental gears. But now we're so damned wedded to this dichotomy, which I think is unreal, that it is difficult to change minds. Law is a difficult field because people become so enmeshed in approaches that it is almost impossible to change, and say, "We were wrong." And in individual cases, like a lawyer recommending to a client certain forms, it is embarrassing to say that, you see, and do that another way. You've got to fudge on it and find a way to explain it without indicating that you were wrong. We must never be wrong. And it is even worse in the social system.

Nebeker:

Yes.

Freed:

If only we were able to recognize in this country that unpublished copyright is superior to trade secrecy because it is a national body of law; it has had specific statutory remedies and things like that. It is a greater way to do it, but people simply can't. You see, we get this new insight that becomes available through computer technology. In Bulgaria, they take a very different approach there. They come from the old communist system with a heavy influence of continental law, and there is a particular lawyer there who is extremely bright, and I know him very well. He was a very doctrinaire communist, and he was involved in the Institute of Law and the State, which is Marxist. He has had foisted on him a copyright approach that is terribly paternalistic, but that's a reflection of their mental attitudes, their inability to recognize that people are able to protect themselves, to be versatile, to take different approaches, create different transactions. And if they can't do it independently they can do it with the benefit of copyright, literary agents, or lawyers, or things like that.

Nebeker:

What do you think the effect on Bulgaria will be, or has been?

Freed:

They will eventually change their law. They will come to recognize it, because they have prescribed too much. They have said the author is always the natural person who creates the program. They recognize software programs, and they said the copyright owner may never sell the copyright, but may only license it, but not more than ten years. I mean, it is utterly restrictive in an unfeasible way.

Nebeker:

So that is going to restrain their business in software, or be ignored, or — ?

Freed:

Well, it happens in Bulgaria, under the communist arrangement, COMECON was responsible to a great extent for computer technology. And they were very good at it, at a lower level than we did, but very skilled, and did a lot of program work. They're very bright people. They aspire to be in the computer industry, and so they will be forced by the virtue of economic realities to change their law. I was consulting for the American Bar Central and East European Law Initiative on that subject in 1992, and tried to persuade a man whom we've known for a number of years over there, who was in charge, not to adopt that paternalistic approach. The irony is that he is vigorously anti-Communist, but he just by virtue of brainwashing through that system, the only one he knew, fell into that trap. So it is fascinating, you get these manifestations.

Nebeker:

And that law was specifically written about computer programs, or part of it?

Freed:

No, no.

Nebeker:

No?

Freed:

It was written in light of the existence of them, but it is their new copyright law.

Nebeker:

Okay, but they had considered programs, and —

Freed:

Oh, yes. Oh, definitely. Of course they adopted it just recently. And they have knowledge of computer technology.

Computer Law Conferences & Courses

Nebeker:

I wanted to ask you about some of these institutions that have grown with the field of computer law. You mentioned this conference at Lake Arrowhead in October of 1960. It surprises me that there was such a thing that early. And I know there is such a thing as the Computer Law Association. If we start with that 1960 conference, can you tell me how the institutions of computer law evolved?

Freed:

The Lake Arrowhead conference was very exciting, very dynamic, very imaginative, but there wasn't a sequel to it. It was the first annual, but there was never another one, which was too bad. They had very leading figures there and I am very sad that they weren't able to follow through. They had very bright people from the technological side. Joe Weizenbaum from MIT was there, remember, and a number of outstanding people, but nothing came of that at all.

Nebeker:

Was there a proceedings published?

Freed:

There were, yes. Right now if you were to look back they would be very primitive, because we really knew so little at that time. Computers were just commercialized shortly before, and we really didn't know what their roles were, and uses, and things like that. There was a conference at Stanford Law School on teaching in law school about computer technology. Again, it offered great promise.

Nebeker:

When was that?

Freed:

That was a number of years later. I don't remember the year.

Nebeker:

In the 1960s?

Freed:

No, in the 1970s.

Nebeker:

Okay.

Freed:

But nothing came of that, and there has been a gross default in law schools in teaching about computer technology, because law professors tend to think of themselves as great intellectuals, equivalent to Ph.D.s in anthropology, and things like that. They just can't recognize that the practice of law is a craft, and also that this computer technology offers opportunities to enhance the intellectual aspect of law that they embrace. In giving understanding, rules of law, they think about it as being sort of dirty and mechanistic, you see. I mean, they think about it in terms of systems for use by lawyers, which are just ordinary things. There is nothing sexy about them at all. Even the litigation support systems are running a corridor or searching a law library. I mean, they are applications. But they have been, especially in the large law schools, unable to see the richness of experience that I found in understanding rules of law better through the technology.

Nebeker:

Right. I know you have taught some courses in computers and law.

Freed:

Yes.

Nebeker:

When did it become common, if it is, in law schools to have such courses?

Freed:

It hasn't really become common. That is the frustrating thing. My general impression was that there was a gross default, and a number of years ago a survey was made that confirmed my impression that many of the people who got into it were not really legal scholars. They just could be interested. Also, law teachers are funny people. They grasp domains, or empires, and they nurture them, and they protect them, but they are not very innovative. They're like Japanese professors, they're not moving into new fields. They don't welcome new fields. They want to further their own turf. So they haven't been creative. There has been more interest abroad, in Europe as a matter of fact, than in this country, which made me very sad. I wrote a long article on teaching computer law. It was about that thick printed out, and I never was able to get it published. Just couldn't. The editor of the Journal of Legal Education said that I shouldn't discuss the technology so much. I mean, he didn't understand how little people understand about the technology.

Nebeker:

I see.

Freed:

How important it is to be able to perceive the technology from a legal perspective to understand the law.

Nebeker:

Yes.

Computer Law Association

Freed:

So there hasn't been enough. What happened at the Computer Law Association is interesting. In 1970 almost by spontaneous combustion a group of us who were working as lawyers with the subject matter got together and there was a meeting in Atlantic City of the Association for Computing Machinery. We used that occasion to get together and talk about the formation of the Computer Law Association as a forum for bringing people together with an interest in the subject, for open discussion of it. And it has become extremely successful.

Nebeker:

It started then, in 1970?

Freed:

Yes. About five or six of us got together.

Nebeker:

And it has continued to the present?

Freed:

Oh, it is flourishing. I read the financial statements recently; it has got a lot of cash! It has regular meetings, you know, conferences really, bringing together people for talks. It doesn't take positions on issues. It simply brings people together on topics.

Nebeker:

Does it publish a journal?

Freed:

Not really, no. It has a bulletin, but it is a minor bulletin, and that's only recently. But its main forte has been its running these periodic programs, and now it runs them in Canada and occasionally in Europe too because it has really become an international organization.

Nebeker:

How does that relate to the World Computer Law Congress that I saw mention of, this (I think) 1991 World Computer Law Congress?

Freed:

I don't know much about the sponsorship; that was in Los Angeles, and I don't know much about it. I got an award there for being a computer law pioneer, but I couldn't attend it because I was giving a keynote speech at a Computer Law Association twenty-year anniversary program in Washington at the time. I just don't know much about it.

Nebeker:

Do you have any idea how long that has been in existence?

Freed:

Oh, that was the beginning.

Nebeker:

Do you know of a European Computer Law Association?

Freed:

There is a lot of interest abroad. I just can't remember specifically.

Nebeker:

You say that it is flourishing, the Computer Law Association. Is it coming to be recognized as a legal specialty?

Freed:

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Well, I suppose it is. Lawyers have tried to promote not only computer law, but a term I used in an article in the New York Times, "high-technology law." It is a funny specialty whatever it is, because the specialty involves, presumably, a sophisticated understanding of the facts, the underlying technology. What computer law involves, as I see it, is integrating this factual subject matter into the body of law. You find constant arguments that you need a special body of intellectual property law to treat this subject matter, that copyright and patents aren't suitable. People argue that, but don't give facts. They don't say, "Well, it should be so and so." They say, "It shouldn't be this..." But they don't say what it should be.

My position has been that we should really work at integrating the technology into the body of law widely by understanding the facts through reasonable analogies to circumstances we know, but do so within the proper framework of social policy. I mean, we have to respect the public policy in various areas. I found it to be an exciting experience, and I found it to be intellectually very satisfying, but you find people continuing. I mean, there is a law professor down at University of Pittsburgh Law School, Pamela Samuelson, who has taken extreme positions, written countless articles on how copyright doesn't properly apply to software program media. But she cites cases from the United States Supreme Court that were decided when the United States copyright law didn't cover unpublished copyright. I mean, they're just not applicable. Disingenuous.

You'll find a man by the name of Nimmer, I can't remember his first name. I think he is the son of that famous Melvyl Nimmer, who is arguing that the Uniform Commercial Code should have provisions for standardized transaction documents relating to software. I think it is so ill conceived because you have to recognize what the transactions are. There can be a genuine license of mainframe software, and it should be treated as a license under unpublished copyright. It is no big deal, you know. Or there should be recognition that the marketing of software programs for personal computers is equivalent to the sale of books. They're published works, and that's that. I mean, it's relatively so simple as I see it, but I happen to be persistently rebellious!

Nebeker:

So it's maybe mainly a problem of much of the legal profession not really understanding computer technology, but also not seeing it in certain simple ways?

Freed:

It starts with not understanding it really, and then not seeing the simplicities of it. The gibberish and the buzzwords of the specialists have rendered a great disservice, I think, in creating an aura of mystery and complexity, and distracted people from seeing the simplicity. I think that my strength has been the ability to step back and see the simplicities that exist. The generalities. The fact that, you know, these are signals, these are streams of pulses, these are inputs. They're processes in accordance with programs. It's like a chemical factory. It is so easy.

Nebeker:

Could we turn to another subject?

Freed:

Sure.

Impact of Computers on Practice of Law

Nebeker:

That is, how computer technology has changed the practice of law.

Freed:

Yes, yes.

Nebeker:

How it has helped lawyers in their day-to-day work.

Freed:

Well, I talk about it with some misgivings, reluctance, because I got my start by designing a system, but I immediately decided that I didn't want to be an engineer, I wanted to be a lawyer. So I really haven't embraced it, but the use of the technology has been extremely important in law because lawyers are information processors and inherently they must use it. But they use it in very mundane ways. It is not revolutionary. They use the technology for word processing. You go into a law firm now, and there are computer terminals on every desk, the secretaries and the lawyers. There are fewer secretaries than there were before because the younger lawyers certainly are creating documents and doing things directly. There is relatively little oral dictation to secretaries any more. It's a complete revolution that way. Also, computers are used to keep large files of records.

Nebeker:

Have they been routinely used just dealing with the mass of evidence in a —

Freed:

Oh, that's a big industry. That is a very big industry.

Nebeker:

And when did that arise then?

Freed:

In the late 1970s, I would think. I don't remember precisely.

Nebeker:

So a law office can buy a program that would help them set up?

Freed:

Yes. You can get the programs to manage yourself, or you can call upon the companies that perform the service for you. They'd come in with specialists and will either introduce the document materials into the system or show you how to do it, and maintain the systems, many times at their premises. It's a big business. What's interesting also is the searching of the law library. People talk about legal research, but it is a misnomer. It is a term of art. It is not research in a professional or scientific sense at all. It is searching the library, that is all it is, and searching for analogies and things like that. It's very imprecise. Before computers, law book publishers, especially the West Book Publishing Company out of St. Paul, published, and continues to publish, the opinions of courts. They created the keynote system of indexing decisions by subject matter, a very complicated hierarchical index system.

Nebeker:

But something like the keyword system in a lot of indexing?

Freed:

Yes.

Nebeker:

So that there are certain standardized sets of terms that are used to —

Freed:

Categories in which they would classify the cases. When it was done by people, the classification was remarkably inaccurate. You simply couldn't understand in many cases how any person could ever put this text in that category. What happened was that West has a domination, a prominent position in that industry. [Tape ends] — An enterprising lawyer who was then working at the graduate school of law at the University of Pittsburgh got the idea way back. I'm trying to remember; it must have been in the very late 1950s. He thought that it should be possible to search the law library by machines. He got a grant from the Ford Foundation of about $400,000 to set up such a system. It was very primitive, but he was enterprising. His name was John Horty. I remember that I was on a committee for a project review of that system. We did it in Pittsburgh a long time ago. He worked at it, and it wasn't a practical system. It was a batch processing system and it wasn't practical. Then the Bar Association in Ohio was moved to do something, and they started to set up a system based on more flexible on-line searching by computer. You can imagine that John Horty's system was based on clunky computers, the IBM 301, or 1401, something very primitive. And the Ohio people were bought out by Mead Paper Company, which was amazing. It was a completely new field, and they set up Mead Data Central. They spent a ton of money to try to commercialize that system. I don't understand how they ever could justify that, but it went on year after year after year. And they couldn't figure out how much to charge because they couldn't estimate the volume, and they couldn't estimate the volume unless they knew how much to charge. It was just circular.

But eventually they succeeded, and they created a very active on-line system called Lexis. They also had Nexis, which is news. It is a very big system, and lawyers use it on-line in real time from their law firms from their terminals. In the beginning Mead offered specific terminals. I don't know now how they work, but the systems are relatively easy to use, and you search on the basis of text words. Not keywords. They don't introduce to any significant extent words, but what they have done is created a concordance of all the searchable words. Then it is up to the lawyers to dream up questions, essentially on a Boolean basis, although they don't think of it in that way, of logical relationships, and ask for it. Then the system will display and print out on site, remotely. And West came in late in the game with their West Law System, which is more on a keyword basis because they already had this key number system. That is a big business, and there aren't many law firms or lawyers who practice law without using it in any significant way. It is very big.

I never developed a technique of using it, simply because it wasn't necessary and appropriate in my case. I did more ongoing work in contracts where we didn't have to do that. But the lawyers are very adept at using it. There are terminals in public law libraries and the like. So you have searching a law library, you have organizing the files of evidence in large cases, litigation support systems. Law firms normally charge their clients based on the time they spend, and they talk in terms of billable hours, and they use computer systems to manage that information and to create bills, and they create draft bills for review by lawyers, and then review and then file bills. Normally you bill directly from the computer printout, which is quite a revolution because lawyers used to dress up all of their correspondence with fancy letterheads and now they print them out from the computer. There is constant talk about trying to organize the court systems on a computer basis. There is terrible inefficiency in running the courts, in scheduling and calendering, because it is difficult to predict how things will go.

Nebeker:

Yes.

Freed:

You never know until the last minute when a case collapses and you move to another case. Also, it is inefficient having lawyers wait in the courtroom for an opportunity to argue on emotional things. I am not aware of how those things have gone, but over the years there has been constant talk of it.

New Technology and Privacy Rights

Nebeker:

Well, that and the kind of database, the Lexis type system, are also of course taking advantage of the new communications capabilities. I understand that you have also worked on some communications law. Do you see some of the same problems with new communications that you have with computers? That the law is ambiguous, how some message is taxed, or treated?

Freed:

You get into that to a great extent in the matters of security and privacy. I think that is the easiest approach. And the privacy aspect is a fascinating one that is worthy of lots of attention. Our privacy up to now was based on inefficiency, the difficulty of simply getting knowledge. I tend to resist the word "information" because I am writing a book now in which I say it really should be called messages, and not information. We have certain ingrained approaches. For example, we thought that a signature was a signature, and now we should recognize that a signature is just one of many different identification means. They can be all sorts of things: plastic cards; they can be passwords. Again, you see, the technology provides us with an opportunity to understand what we were doing all along, and to generalize.

Nebeker:

Right. Then maybe unify or simplify the law?

Freed:

Absolutely. Questions of forgery, for example; forgery is forging a signature. Well, why should it just be a signature? It ought to be any identification means. And we really have to be dynamic in continually integrating this into our understanding of the law, and giving the law dynamics to keep current. I wish that the major law schools could teach more about this, because I think it would be a great service to the law. Well, what is interesting about privacy is that we never thought much about privacy, but we always did have laws on privacy. In 1913 Brandeis, a Supreme Court Justice, and a colleague of his called Warren wrote an article about privacy. It was really the key article about that, pointing out the nature of the right, and things like that. But we didn't make a big deal about privacy. The FBI couldn't find things because of inefficient storage and things. Then computers came along and suddenly opportunities to locate and discover things became obvious. So the interest in privacy developed, and computers were looked upon as a great threat to privacy, with the communication.

Nebeker:

Yes, with communications, because so many of the things now, if it is not wired communication... Of course, you had the possibility of tapping something before, but now so many things are transmitted.

Freed:

We also had the remote photography. You could stand out there and take a picture.

Nebeker:

But it's a lot easier these days to tap into messages.

Freed:

Well, the interesting thing is that it is harder with fiber optics. Those aren't tappable; you don't have the radiation, and you don't have the ability to cut in, whereas with wire communications you have the radiation and the ability.

Nebeker:

Or the wireless.

Freed:

Wireless certainly you can tap into.

Nebeker:

Right.

Freed:

And then you get the question of genuine encrypting, and the like. But computer technology rendered a great service in making us aware of privacy, you see. I mean, it was a great service. It's a positive rather than a negative factor. Also, computer technology provides opportunities to protect privacy that we didn't have before. When you think of privacy of medical records, traditionally if someone had a white coat and a stethoscope hanging out of a pocket they could go into a hospital and look at all sorts of records. There's no way to know what they take out in their minds, or copy, or things like that. But with these identification or authentication systems that we have, if they are properly used they are far superior. Recognizing a face is not very satisfactory. So if we use properly the identification means, we have an advantage from a legal point of view, which is really a social point of view because the law from that respect reflects social norms and social considerations. So there are many of these aspects there where the technology has a very significant legal impact.

Nebeker:

But I think overall people have been made more anxious about privacy because they often don't understand the technology. They are afraid that people who do are able to get around these safeguards. I'm just wondering at the kind of paradox. You are saying that use can improve the situation, but the popular perception is that we have less privacy, that it is the Big Brother state.

Freed:

It's the same perception that we have generally. I mean, the same thing about the medical care reform, lack of sufficient knowledge of people to understand and arrive at judgment, and being misled by news reports and the like. It's a real problem of our democracy. This notion of privacy has had fallout in many areas. In the medical area, for example, and in fact the genuine helping professions. We now have a lot more attention to informed consent for people, confidentiality of their records. We're far more conscious. There have been tremendous gains in that area. In fact, when my wife and I go to Bulgaria, where we tend to go periodically to lecture and consult, we're carrying a message there about what they have to be prepared for as they move from the communist authoritarian system to the democratic market economy. These basic considerations that we have here, they're just enthralled by them. They never thought of protecting the privacy of a client, or patient, or things like that. So we do have positive things. What I find sad is our failure to rise to the occasion. We have great opportunities here to be socially responsible, professionally responsible, to take advantage of the knowledge that we accumulate through the technology and the applications, and to use it. I don't know what the answer is on that. I think that it's a fundamental people problem, that we don't use our mental abilities sufficiently.

American Law and Technological Progress

Nebeker:

I wanted to ask a couple of very general questions, and sometimes it's not possible to say anything useful on these, but this one might be helped by your experience with other countries. The question is, how has computer technology as a whole, looking back at almost fifty years since the very first electronic digital computer, been either speeded or retarded by our particular legal system? I'm thinking of the computer technology itself. Has the software industry been held back because of patent law, trade secrets, or conversely?

Freed:

I don't think that our legal system has impeded it at all. Japan tried. For example, NTT had a rule that you couldn't transmit data over telephone lines, absolutely outrageous. But we've never had any limitations here that I can think of right off hand in speaking with you. People have had needs and have gone ahead and done it. For example, early in the game I had clients and they wanted to know what tax implications and liability implications and intellectual property implications were of their dealing with software programs. I tried to think it through and to develop rationales, but in most cases people just went ahead and did it, and the industry just grew. The technology was utilized. We haven't been inhibited. We have a tradition in this country of being flexible and just rising to the occasion. I wish we could do it more rationally, with better understanding, but we do it and take advantage of the technology.

For example, we had early patent law rulings that you couldn't get a patent on a software program. Well, but maybe some programs might be patentable. It's a stupid decision, the first one, by Justice Douglas, because they didn't understand and the lawyers couldn't communicate. Then for a short period the notion was that software programs weren't patentable. But software programs are processes, and processes are patentable if they are novel and if they are socially useful. And there was no reason in the world. Well, it turned out that even though programs weren't patentable, they became patentable, and now there is no question. If you have a genuine invention that is novel you can apply for a patent and then get it. That happened in a sort of a natural evolutionary way, almost unobtrusively. We talked one way, and we did the other way, in a logical way, because there was no way to resist it. They're processes, and processes are patentable.

Nebeker:

Well, that's a tribute then to the flexibility of the legal system, that they weren't fully bound by some curious judgment.

Freed:

That's the genius of our legal system. When I travel abroad and talk about legal systems and law reform, as I am doing in Eastern Europe constantly, and as I have in Japan, I try to tell people that you have to be flexible. You have to be dynamic. That is the genius of our system. The common law system is relatively responsive to changes, social and technological changes. People say that the law moves slowly, but the fact of the matter is that we have such a large amount of interaction in the courts, litigation, you might say, that you do get quick responses to changes. That is why I am appalled by the continental legal system, which is used in Japan too, where it is very cumbersome, and they think in terms of codes, and they weren't honest enough to recognize that you have to interpret codes the way that we apply common law: that no rules of law can be written in such detail that they apply automatically to situations.

Nebeker:

Yes.

Freed:

It's all a question of interpretation.

Nebeker:

So you think that the continental legal system is less flexible and more problematic in application.

Freed:

The lawyers are much less flexible. They are rigid and ponderous. The American system, with all of the complaints I have, is a very flexible. It is typical of our society. That is why people want to come here. We ask, "Why do you want to leave your country and come to America? Look at all the problems we have, all the social problems." But they want to come here because we have an openness and a flexibility and an ability to grow. I'm complaining about the lawyers not changing enough, and I still think that's right, but we do have tremendous dynamism.

Nebeker:

So we have computer technology, which has maybe a fifty-year history. We have law with a much deeper roots, and we have just commented on the influence of the legal system on computer development. Much of what we have talked about the last hour or two has been the other, that is, how the existence of the new computer and communications technology has influenced the legal profession, both in the sort of practical way, the day-to-day, but also in, as you pointed out, clarifying some of the legal concepts and simplifying law. Is that a fair assessment?

Freed:

Yes, but it is the last aspect that I find most frustrating. It is the last aspect that I find is the least utilized and the most important. That is what I find, because it is the most professional aspects, the most challenging to the mind, the analytical, the exploratory, the dynamic. And one that is so important to society for facilitating, because even though I said we haven't had great impediments, it could be smoother. We could do it better. We could do with greater understanding. We could anticipate a lot of questions. There is no need to wait. I mean, as soon as you recognize that a plastic card or a password is an identification means, suddenly you should start looking at the ramifications of forgery. You shouldn't leave your forgery law to apply only to hand-written signatures. You should say, "Well, maybe we should revise," things like that. One thing I think is very important, that we should learn, and we haven't learned, is that we should avoid writing legal rules too specifically. You should never write a legal rule that refers to computers. You ought to find a more general way to write because there is such a dynamics to technology that we shouldn't have to keep interpreting. That is why I say in copyright law we shouldn't identify works of authorship as books, or magazines, and magnetic tapes, and phono-records, but they should be recognized more broadly as things that are used to generate input to information processors for processing, you know.

Nebeker:

That's very good.

Freed:

Then we automatically embrace these new technological things. We made a big deal about whether our software programs are media copyrightable. It is ridiculous. If we could have that broad point of view, we never would have to worry, "Well, what about integrated circuit chips? What about this? What about that?" There's no need for that.

Nebeker:

So the rapid advance in technologies is kind of forcing the law to be more general.

Freed:

Well, it's not. It should be.

Nebeker:

It should be.

Freed:

But people haven't embraced it enough yet. I am very impatient because people don't think my way! But these are the possibilities, you see, and I wish more people would see them.

Nebeker:

Well, there has been some movement in what is copyrightable, and I assume in what forgery is.

Freed:

Not enough. I think there are greater opportunities there to do that. But it is fun to be rebellious and demanding, and frustrating and happy.

Nebeker:

If you don't try to make things better, they won't get better.

Freed:

That's right.

Work as a Sculptor

Nebeker:

I wanted to also ask you about your work as a sculptor. You're technical aptitude coming out in another way. How did that start?

Freed:

Well, I've made functional things. I made much of the furniture in the room, and those cabinets, and bookcases, and that cabinet by your hand, that walnut, and the Chinese window there, lots of things, and furniture for my children. As I said, I did much of it in the early days as sublimation from my frustration with the type of legal work I didn't like, and about twenty years ago I suddenly and without any explanation got the urge to make things that I might call art. But I don't have any formal training in art. My wife and I have traditionally gone to art museums, and talked to artists, and thought about art, and collected art. So I got this urge, and I found it extremely interesting, and in order not to have to learn a new medium I used found objects. I guess I have a proclivity to be a scavenger, and I get the support of my wife as long as the objects are not too big. But her notion of size varies! Sometimes she frustrates me. But in any event, I collect all sorts of things and like putting it together, and discovering the artistic elements all around us.

I am called upon to give talks, of all things, on this. I find it strange but interesting. I say, "Sculpture is where you find it." I try to create sculpture on my part that usually is humorous; it has a lightness and humorous element. A friend of mine of long standing came up to me once at an art exhibition and sort of said, sotto voce, "Roy, I never realized you had this droll side to you." But it comes out in the sculpture, and I have many exhibitions, and I tend to find materials in welders' junk piles, and in the metal recycling element of public dumps, and along the curbs on rubbish collection day, and everywhere. I just don't understand how it happens, but somehow once you get your mind working on a train of thought, I find that the unconscious helps you. It creates the idea, and it puts things together for you in ways that you can't analyze. And I guess that inability to analyze is the reason that we can't understand how the human mind works generally and creates computers and software programs that achieve the richness of the mind. I guess we never will, because the mind is so elusive. But I can see my wife is getting a sculpture now.

Nebeker:

Yes, I was hoping we could get it on film, some of your work.

Freed:

I'll hold this on my lap because it is sort of rusty, and I'll get that cover all dirty. But this is a recent sculpture that I made, and the body is some part I found in a junk pile of a welder. It is fairly heavy; it is three-eighth inch rusty steel. How it happened to get that shape no one knows. This ring here was used in very old buildings in Boston around wooden columns that used to support the buildings, to prevent the columns from splitting. You find these in old building wrecking places. This part here, I had around. I don't know where I found it. It was distorted, and I made it symmetrical, and then cut the angle so that it wouldn't be at right angles.

Nebeker:

You used cutting and welding yourself?

Freed:

Oh, yes. I used the workshop of a welder friend I have down at Cape Cod, who has all the equipment. He has torches that I haven't, all that welding equipment. I go there and use his roller, and his cutter, and his saws, and cutting torches and the like. This bottom here must have been cut out from a fishing drag that they used to make down at Cape Cod before the fishing industry turned the way it did. It is hard to tell what this is, but somehow it came out of my mind that I should set up this angle here to give a certain tension, a certain upward motion. People ordinarily expect me to have titles. For this one I find it hard. Someone said it looks like a pheasant flying, but I'll accept anything. I just think it's nice as a work of art. I find that when I do have titles, although people think of them as part of the work, the pieces generally stimulate them to think of their own titles, to see more things. I tend to give many talks about this, especially to young children, because I find that this general medium is extremely interesting to them. They don't have to learn a specific medium like oils, paints, watercolors, or things like clay. These are all around them, and in most cases they can attach them more simply than by welding — by gluing, or by wiring, screwing, things like that. They relate to them more instinctively, and they are inspired to look around them in their environments for artistic elements, which I think is the key to getting them started thinking in terms of art.

Nebeker:

Thank you very much.