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When law professor David A. Rice is hired as an expert witness in litigation, he can’t promise that those who seek his services will like what he has to say. In fact, Rice, an intellectual property professor at Roger Williams University Law School, won’t let counsel for the client review or comment on his analysis. That’s because Rice’s role as an expert is not as an advocate for the client, but to lay out the arguments as he sees them based on his experiences, the case law that exists and any new developments in the field in which he is offering his opinion. “The reality is will my views be consistent with the position of the client, and at the same time, I will not guarantee them that everything I say will please them,” said Rice. “You take what you know, double-check it against case law that’s out there and anything else that’s new.” In his more than 30 years of teaching at law schools, the last four of those at Roger Williams, Rice has been asked to serve as an expert witness in numerous cases, many of them dealing with copyright law, patent infringement and consumer protection issues. Most recently, Rice was retained as an expert witness on the question of copyright “first sale” doctrine to software copy licenses. Softman Products Co., the plaintiff in a suit against Adobe Systems Inc. in a U.S. District Court case in California, hired him. The case involved the first sale doctrine and its effect on the enforceability of computer software license terms that prohibit transfer of individual copies. Softman is a reseller of computer program copies. SETTING THE STAGE In the preliminary stages of the case, Rice filed a 30-page memorandum that outlined his view of the law in the context of copyright issues. Rice relied on case law and the views of legal scholars to make his argument that Softman should be allowed to sell separately Adobe software that had been packaged together. “Legal scholars who otherwise hold differing views on software protection and contract law have expressed in common the opinion that distribution of an individual copy or a computer program in exchange for a single payment under a contract characterized as a ‘license’ is the equivalent of a ‘sale’ of the copy for purposes” of the copyright act if the “license is perpetual,” meaning not for a stated term of months, years or other period, Rice concluded in his memorandum. The judge in the case recently denied Adobe’s motion for preliminary injunction against Softman and on several occasions cited portions of Rice’s memorandum in making his decision. “You may not really change the landscape, but when you get a judge to make a ruling, it has to be dealt with and noticed,” he said. “It is very different than having academics or a symposium of academics saying there’s a problem here. When a judge says there’s a problem here, it has to be addressed.” There is a possibility of appeal to the 9th U.S. Circuit Court of Appeals or the case could continue to trial, Rice said. Using his skills as an expert, particularly in the burgeoning field of intellectual property law, is a way to keep work fresh, he said. “It’s kind of a unique way to share what you know and what you’ve studied and develop some expertise about it and be considered part of a decision-making process in cases that could have larger significant precedence come out of it,” the former Rutgers University Law School professor said. “I think of it in a way that says to the extent my expertise can be brought to bear, it improves the quality of judicial analysis, thinking and application of the law.” DIFFERENT PATH The professor’s legal career did not take the traditional path of one graduating from law school and entering a practice. His decision to use his law degree to teach, rather than to join a firm, was influenced by teachers he encountered at Columbia Law School “by example more than talking about it” he said. When an opportunity to teach at Boston University came his way in the mid-1960s, he questioned whether to jump at that chance then or begin practicing law. “Certainly there are times I think what I do as a teacher and scholar will benefit significantly as if I had practiced for three, four or five years,” he said. “I think I’ve learned a lot about the law and its practice from working with lawyers as an outside consultant or expert.” While teaching at a law school is not as lucrative financially as working in a successful law firm, “in terms of what you do, you have a lot of freedom to choose where you want to focus your research and have some influence on what courses to teach and when.” He sees that latitude in his job as a “big perk.” Because of his reputation as an authority on intellectual property and information technology, other perks include being asked to participate in programs on technology outside of Roger Williams. Next month, Rice will be a panelist at the Global Tech Summit 2001 in Washington, D.C., and speak on the topics of copyright, protection of computer programs and licensing. The program will feature technologists, entrepreneurs, academics and journalists from Africa, Asia, Europe and the Middle East. Stating with conviction that he has “no regrets” about his decision to teach, Rice said he agrees with a professor colleague of his who said that teaching is the “best damn job in the world.”

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