ProCD v Zeidenberg, 908 F.Supp 640 (W.D. Wisc)

  Has the ProCD case been discussed on this list? It seems quite significant.

   For those not familiar with it, here is a summary:

   Plaintiff, ProCD produced a CD-ROM with telephone listings on it as well as software to use to search the listings. The defendant, Zeidenberg bought the CD-ROM, downloaded the contents onto a hard drive, extracted the listing info (the "facts"), and made the facts available for searching on the internet.

   The court granted summary judgment to defendants holding:

  (1) Users (Zeidneberg) did not infringe copyrighted search-tool software by downloading it onto their computer's hard drive for purposes of extracting the uncopyrightable phone listings;

(2) users were not bound by the shrinkwrap license
included with the software; (it was not on the outside of the box, so the court reasoned that there was not opportunity to bargain before consumer purchased the product)

(3) state law breach of contract and misappropriation
claims were preempted by the Copyright Act; and

(4) the State Computer Crimes Act claim as to users'
conduct was also preempted by the Federal Copyright Act.

If you haven't read the case, I suggest that you do. The point that I am trying to understand is the ramifications of such a sweeping preemption rule. I wonder how this would apply to online databases of public domain info. It seems to mean that no matter how much a company invests to digitize a public domain work, the only way to protect it from being copied is by screening the customers before access to the material is offered.

I am strongly against extending copyright (thin or otherwise) to public domain works, but I had assumed that other methods of protection would remain available (e.g. contract law) to online publishers. In the ProCD decision, the court seems to say that factual compilations are specifically covered by the copyright laws but are NOt protected by them. Therefore, any attempts to protect factual compilations by state law means are preempted. Am I the only one suprised by the extent of this? Is this decision an anomoly?

Thanks for your comments.

Laurel Jamtgaard
Class of "97, Boalt Hall Law School
<lgaard[_at_]aol.com> Received on Sun Mar 31 1996 - 08:02:37 GMT