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Maureen O'Rourke is the Associate Provost for Faculty Affairs for Boston University and the Dean Emerita, Michaels Faculty Research Scholar, and Professor of Law at the Boston University School of Law. O'Rourke previously served as the 17th Dean of the Boston University School of Law, and she was the first female to hold the position. Her scholarship revolves around the intersection between intellectual property and commercial transactions. O'Rourke explores various areas of law -- such as secured transactions, privacy law, contract law, and antitrust law -- in relation to technology developments throughout the late twentieth and early twenty-first century. She also writes extensively on issues related to property rights in cyberspace, especially software licensing and contracting.

Biography
O'Rourke earned her undergraduate degree in accounting and computer science from Marist College in 1985 and her J.D. from Yale Law School in 1990. Prior to joining Boston University School of Law in 1993, O'Rourke served as an accountant and attorney for IBM Corporation, where she specialized in software licensing. While at IBM, she first found her passion for teaching by concurrently serving as an adjunct professor at Marist College. O'Rourke still maintains strong ties to her undergraduate alma mater, where she joined the Board of Trustees in 2018. She also served as the Chair of the Marist College Pre-Law Advisory Board and established a scholarship at the institution in 2014. Appointed full professor at Boston University School of Law in 1998, O'Rourke made significant contributions to the trajectory of the law school. She supervised the Journal of Science and Technology Law and earned several teaching awards, including Boston University's top teaching award, the Metcalf Award for Excellence in Teaching. O'Rourke also previously lectured at Columbia University Law School and La Trobe University in Australia.

After serving two years as interim dean from 2004 to 2006, O'Rourke officially became the 17th dean of Boston University School of Law, a position she held until 2018. As dean, O'Rourke oversaw a successful $100+ million capital campaign and a multi-year $185 million construction and renovation of the School of Law. O'Rourke also spearheaded significant curricular revisions, the implementation of several new graduate program offerings by the School of Law, and enhancements to financial aid, pro bono, experiential learning, and professional development. As part of these efforts, O'Rourke improved the school's loan repayment assistance program, encouraged the adoption of a pro bono program, and increased the career development and pro bono opportunities available through Boston University School of Law's Career Development & Public Service Office. O'Rourke also implemented innovative legal education methods by redesigning major parts of the Boston University School of Law curriculum. As part of these legal education reforms, the School of Law adopted a required one-week experiential learning opportunity for all first year J.D. students called Lawyering Lab and introduced an online Business Fundamentals course. Additionally, O'Rourke oversaw the launch of new graduate and certificate programs, including the Executive LLM in International Business Law, Legal English Certificate Program, and an online version of the LLM in Taxation. In addition to her position of Associate Provost for Faculty Affairs for Boston University, O'Rourke remains the Dean Emerita, Michaels Faculty Research Scholar, and Professor of Law at the Boston University School of Law.

During her time at Boston University, O'Rourke has held various other positions within the broader legal community, including associate reporter for the American Law Institute’s Principles of the Law of Software Contracts, past-chair of the American Bar Association ("ABA") Council of the Section of Legal Education & Admissions to the Bar, and a member of the Board of Directors of AccessLex Institute. During her tenure as chair of the ABA Council of the Section of Legal Education & Admissions to the Bar, the council reviewed standards for law school accreditation, bar examination passage, and experiential education. The council proposed raising the bar examination passage rate required for accreditation to 75% of the graduating class within 2 years of graduation. The council also recommended allowing students engaged in externships to be compensated in order to promote experiential learning.

Scholarship
O'Rourke's articles on intellectual property, corporate law, and business transactions have appeared in journals published by Columbia University, Duke University, and Harvard University. O'Rourke is considered a pioneer in the field of internet and copyright law.

Copyright Law
O'Rourke is one of the co-authors of Copyright in a Global Information Economy, a leading copyright casebook discussing the intersection between technology and the law. O'Rourke also examined when federal copyright law should preempt state law enforcement of private contracts. O'Rourke argues that contract law is a more effective way of promoting dissemination of creative publications than copyright law. Arguably, by implementing use restrictions via contracts, the price of a work for a single consumer will decrease; hence, a contract-based approach to usage rights should increase access to creative works, improve dissemination, and benefit consumers. In an efficient market, O'Rourke believes that reasonable contract terms that are voluntarily entered into and bargained for should be enforceable.

Some commentators disfavor utilizing private contracts in place of copyright law because it is uncertain whether federal copyright laws can be waived. Some argue that even enforceable contracts under the UCC and antitrust laws might fail to satisfy the necessary elements to avoid preemption. If, as it has been argued, federal copyright laws cannot be viewed as merely a default that can be waived or opted-out of through contracting, then contract provisions permitted by state law could be rendered unenforceable when they conflict with federal copyright law, which includes fair use provisions.

Software licensing
As part of her extensive literature on software contracting and licensing, O'Rourke discusses the inadequacies of the Uniform Computer Information Transactions Act ("UCITA"), a model law based on the Uniform Commercial Code ("UCC") that produced guidelines states could adopt to regulate transactions of computer information. O'Rourke argues that, while the UCC successfully addresses contracting issues related to the sale of goods, software contracting is unique and ill-suited to any "one size fits all" approach based on the UCITA or UCC. Apart from O'Rourke, many other scholars also criticized the UCITA's ability to comprehensively address the complexity of software transactions, and the UCITA ultimately only got adopted by two states, Maryland and Virginia.

Following unsatisfactory attempts by the UCITA and UCC to offer comprehensive ways to address issues with software transacting, the American Law Institute approved the Principles of the Law of Software Contracts in 2009. As an associate reporter for the Principles of the Law of Software Contracts, O'Rourke contributed to the project's goals to "weave the currently divergent threads threads of law governing software contracts (including the threshold questions of whether they are contracts or licenses and whether software is a good, a tangible non-good, or an intangible) into a coherent whole that will guide parties in drafting, performing, and enforcing software contracts and courts and other arbiters in resolving disputes involving software contracts." Specifically, the Principles of the Law of Software Contracts aimed to formulate a body of law to (1) address the unique aspects of software transactions and (2) unify/clarify the disorganized body of law that surrounded software contracting and licensing at the time. The Principles differed from previous attempts to address issues with software contracting by emphasizing the regulation of disclosure; other differences also involved the American Law Institute's explicit acknowledgement, from the beginning, that market forces would be insufficient to protect consumers in software transactions. As part of this work, those involved in the Principles project heavily relied on O'Rourke's short history of the UCITA and software licensing, in which O'Rourke discussed the relationship between contract and federal intellectual law.

While the Principles of the Law of Software Contracts offered more specific and generally better proposals for default rules regulating software transactions, O'Rourke's work and the Principles received some criticism for failing to adequately address issues that arose due to inconsistencies with general contract law. Some criticisms also revolved around the exclusion of topics relating to digital content, as in "digital art . ., [or] literary and artistic information stored electronically, such as music, photographs, motion pictures, books, newspapers, and other images and sounds." Specifically, critics argued that the exclusion of digital content resulted in (1) a lack of clarity regarding the distinctions between digital content and software and (2) a failure to address the discrepancy between the interests of licensor-owners and licensee-consumers.

O'Rourke believes that open source licenses, which permit copyholders to use, transfer, and modify software, are valid contracts supported by adequate consideration. Fundamental to O'Rourke's views is the acknowledgement that open source licenses, which encourage software development and improvement by facilitating access to source code, provide significant societal value.

Cyberspace and the Law
O'Rourke consistently explores various issues related to the technical and legal implications of cyberspace. Much of her scholarship regarding cyberspace intersects with contract law, privacy law, secured transactions, and antitrust law. For example, O'Rourke wrote about internet privacy issues that arose following the passage of the Bankruptcy Reform Act of 2001, which does not prohibit the sale of customer lists. With Walter Miller, O'Rourke recommended that (1) websites provide clear explanations and privacy notices regarding how consumer information could potentially be sold in the case of bankruptcy and (2) the Bankruptcy Reform Act be amended to require privacy policies of bankrupt companies to be enforced, thereby limiting transferability of customer lists. With the rise of clickwrap agreements, O'Rourke asserted that users require additional protections and that preemption by federal copyright policy offers one of the only relevant protections against "market power."

O'Rourke believes that courts are inadequately implementing broad property rights on information for network environments, like cyberspace, that disadvantage users by allowing website owners to exclude aggregators for anti-competitive purposes. O'Rourke consistently raises concerns regarding the antitrust implications of attempts to prevent aggregation websites that compare the price and product information from multiple competitors on the basis of property right violations. In response to cases like Ticketmaster Corp. v. Tickets.com, Inc. and ebay, Inc. v. Bidder's Edge, Inc., which discussed a website owner's property interests in information appearing on their website, O'Rourke made antitrust law, First Amendment law, and nuisance law arguments that consumers should enjoy "unfettered access to price and product comparison information." Instead of granting website owners property rights, O'Rourke advocates for using a more flexible nuisance doctrine to address bad actors who abuse website owners' resources. O'Rourke also argues that if accessing information on a website is considered the same as copying when it loads on a user's computer, then federal copyright law should preempt any state trespass to chattel claim. Proponents of a bright-line right to exclude claim that O'Rourke's approach does not recognize the social benefits that arise from a website owner being able to internalize the benefits of network effects.

O'Rourke also frequently writes about copyright issues in relation to creative works disseminated via the internet. O'Rourke highlights concerns regarding fair use issues in digital media and suggests the enforcement of contractual waivers by privileged users of digital works. She discusses how the law will need to evolve to address issues within virtual network environments, specifically, the need for the law to address boundaries between virtual and physical property. As courts have grappled with this distinction, they've applied both intellectual property doctrines and related common law approaches to cyberspace disputes; O'Rourke argues there need to be boundaries or "fences" to delineate whether one approach or the other should be applied to a particular factual situation.

Patent Law
O'Rourke published several "groundbreaking article[s]" advocating for a patent fair use exception, in which she identifies five factors that should be considered to determine whether the fair use exception applies: "i) the nature of the advance represented by the infringement; ii) the purpose of the infringing use; iii) the nature and strength of the market failure that prevents a license from being concluded; iv) the impact of the use on the patentee's incentives and overall social welfare; and v) the nature of the patented work." A core component of O'Rourke's fair use argument emphasizes the need for fair use to extend the implications of patents beyond the immediate market for the patented invention, just as in copyright law.  Under O'Rourke's proposal, patent fair use could allow the patent holder to charge a fee, but it would avoid licensing breakdowns in situations where the technology to be used involves multiple patents, often referred to as the anti-commons problem.

O'Rourke's adoption of a multi-factor test for defining a fair-use exception for patent law has been criticized as impractical, since courts have difficulty assessing market failure and patentee incentives. However, for the most part, even critics believe the five factors identified by O'Rourke would be relevant to devising any proposal for experimental-use exceptions.

Many of O'Rourke's earliest patent law articles raise valid issues that still exist today. For example, since 1996, O'Rourke published several articles about the commercial viability of genotechnology, biotechnology that relies on human genetics and the Human Genome Project. In fact, over the last two decades, concerns raised by O'Rourke in the early 2000's have only been heightened, as market failures related to patentable products increase over time.

Honors and awards
In 2015, National Jurist named O'Rourke one of the Top 25 Most Influential People in Legal Education, and LawDragon named her one of the Top 500 Lawyers in the U.S. In 2017, O'Rourke  received the Diversity Leadership Award from INSIGHT into Diversity.

Publications
Maureen A. O'Rourke, Julie E. Cohen, Lydia Pallas Loren & Ruth L. Okediji, Copyright in a Global Information Economy, Wolters Kluwer Publishing (2002); (2nd ed. 2006); (3rd ed. 2010); (4th ed. 2015); (5th ed. 2019).

Maureen A. O'Rourke, Julie E. Cohen, Lydia Pallas Loren & Ruth L. Okediji, Statutory Supplement to Copyright in a Global Information Economy, Aspen Law & Business (2002-present, on a yearly basis).

Maureen A. O'Rourke, "In Memoriam Robert B. Seidman," 20 European Journal of Law Reform 5 (2018).

Maureen A. O'Rourke, "The “Law” and “Spirit” of the Accreditation Process in Legal Education," 66 Syracuse Law Review 595 (2016).

Maureen A. O'Rourke & Robert A. Hillman, "ALI Principles of the Law of Software Contracts: Some Proposals for a Global Software Licensing Policy," in Research Handbook on Intellectual Property Licensing 54, Jacques de Werra, ed., Edward Elgar (2013).

Maureen A. O'Rourke & Robert A. Hillman, "Defending Disclosure in Software Licensing," 78 University of Chicago Law Review 95 (2011).

Maureen A. O'Rourke & Robert A. Hillman, "Principles of the Law of Software Contracts: Some Highlights," 84 Tulane Law Review 1519 (2010).

Maureen A. O'Rourke & David Nersessian, "Challenges and Opportunities for New Lawyers," 53 Boston Bar Journal 18 (2009).

Maureen A. O'Rourke & Robert A. Hillman, "Rethinking Consideration in the Electronic Age," 61 Hastings Law Journal 311 (2009-10).

Maureen A. O'Rourke, "Being Yourself While Keeping Up with Everyone Else," in Law School Leadership Strategies: Top Deans on Benchmarking Success, Incorporating Feedback from Faculty and Students, and Building the Endowment 117, Aspatore Books (2006).

Maureen A. O'Rourke, "An Essay on the Challenges of Drafting a Uniform Law of Software Contracting," 10 Lewis and Clark Law Review 925 (2006).

Maureen A. O'Rourke, "The Story of Diamond v. Diehr: Toward Patenting Software," in Intellectual Property Stories 194, Jane C. Ginsburg & R. C. Cooper, eds., Foundation Press (2006).

Maureen A. O'Rourke, "A Brief History of Author-Publisher Relations and the Outlook for the 21st Century," 50 Journal of the Copyright Society of the USA 425 (2003).

Maureen A. O'Rourke & Joseph Brodley, "Patent Settlement Agreements: Preliminary Views," 16 Antitrust 53 (2002).

Maureen A. O'Rourke, "Defining the Limits of Free-Riding in Cyberspace: Trademark Liability for Metatagging," 33 Gonzaga Law Review 277 (1998).

Maureen A. O'Rourke, "Fencing Cyberspace: Drawing Borders in a Virtual World," 82 Minnesota Law Review 609 (1998).

Maureen A. O'Rourke, "Rethinking Remedies at the Intersection of Intellectual Property and Contract: Toward a Unified Body of Law," 82 Iowa Law Review 1137 (1998).

Maureen A. O'Rourke, "Reversing ProCD: H.R. 3048 and Copyright Preemption of Shrinkwrap License Terms," 1 Modern Trends in Intellectual Property 3 (1998).

Maureen A. O'Rourke, "Striking a Delicate Balance: Intellectual Property, Antitrust, Contract and Standardization in the Computer Industry," 12 Harvard Journal of Law and Technology 1 (1998).

Maureen A. O'Rourke, "Legislative Inaction on the Information Superhighway: Bargaining in the Shadow of Copyright Law," 3 Boston University Journal of Science and Technology Law 8 (1997).

Maureen A. O'Rourke, "The Law in Cyberspace: Challenges and Opportunities for Lawyers of Today and Tomorrow," 1996 Careers and the Minority Lawyer 22 (1996).

Maureen A. O'Rourke, "Copyright Liability of Bulletin Board Operators for Infringement by Subscribers," 1 Boston University Journal of Science and Technology Law 6 (1995).

Maureen A. O'Rourke, "Proprietary Rights in Digital Data," 41 Federal Bar News & Journal 511 (1994).