Re: Teen Offers Way to Crack Blocking Software

Richard Schafer <schafer[_at_]mail.utexas.edu> writes:
>
> Well, let's assume Solid Oak has a license agreement that is at
> least as good as Pro-CD's license, and it prohibits the licensee from
> decrypting the data. (At least, *I* would have written that into
> the license.) This sounds analogous enough to Pro-CD that I suspect
> Easterbrook, at least, would have no problem upholding this as a
> violation of the license agreement, at least. And to the extent that
> Pro-CD statement that Zeidenberg's usage of the phone data was a
> copyright violation is good law, then the same kind of reasoning might
> well apply against this kid.
>

The latter statement is *not* a holding of the ProCD case. In fact, it's more of a suggestion to the Supreme Court -- along the lines of "please don't reverse us, this case really isn't just like Feist." [The case settled before a cert petition could be filed].

The district court held -- correctly, in my view, given Feist -- that the data simply could not be copyrighted. The Seventh Circuit expressly did not reach this finding; it was therefore not reversed.

As an aside, I wonder what people think of the argument that I wanted to make on remand: since ProCD claimed copyright infringement, that claim was rejected because of the clear precedent of Feist, and the Seventh Circuit did not reverse this holding, ProCD should pay Zeidenberg's attorney fees under Fogarty v. Fantasy, since he is a prevailing copyright defendant (regardless of the outcome of the contract claim). I admit it is a bit of a stretch :-), but I'm not sure there is any legal bar to such an argument.

Mark Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu

For information on the Intellectual Property program at UT, see http://www.utexas.edu/law/intelprop/ Received on Mon Apr 28 1997 - 16:15:29 GMT