Re: Teen Offers Way to Crack Blocking Software

On 25/April/1997, "Richard A. Schafer" <schafer[_at_]mail.utexas.edu> wrote:
>
> On 4/24/97, Richard Hopkins <rhopkins[_at_]activision.com> wrote:
> >
> > -- Off the top of my head, I see at least two defenses to a copyright
> > infringement claim: (i) fair use; and (ii) sweat of the brow (ala
> > Feist).
>
> 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.
>
> Plus trade secret law may well apply here, since I suspect Solid Oak
> could easily make a claim that the contents of the list was a trade
> secret that they have reasonably tried to protect. Of course, this
> only gets them a remedy from the teenager, and the cat is now quite out
> of the bag for further protection now that the list has been published.
>
> Of course, if we were under the EU Database Directive, or the H.R. 3531
> that Rep. Morehead inroduced in the last Congress, then the data would
> almost certainly qualify as a database and be protected there, as well.
<snip>

While recognising the unpopularity of the EU Database Directive, it is at least worth considering the facts -

It may well be that the data comprising the Solid Oak list would be protected by the EU database directive, but that does not necessarily mean that the teenager was infringing the rights granted - the rights to prohibit extraction and re-utilisation from databases do not precisely parallel the copyright reproduction/dissemination rights. I guess that decrypting constitutes extraction of the data, but the Directive was drafted with more of a Feist type application in mind. There is also the issue of "unfair" - copying 3 names from a phone book is unlikely to infringe, but copying them all would. One of the principal objections to a sui generis right is the lack of the sort of copyright law history that enables argument about other subjects to be held on this list.

John Enser
Olswang
London
<jxe[_at_]olswang.co.uk> Received on Mon Apr 28 1997 - 21:35:41 GMT