On 3/30/98, Ari Kahan <akahan[_at_]netcom.com> wrote:
>
> West Publishing distributes copyright-protected software for use by
> consumers with the Westlaw service. West gives the software away free,
> or sells it for a very low price, because the real income comes from
> people using the software with Westlaw's database, which people pay to
> access through the software.
>
> Suppose I'm a competitor of West, and I offer a service called
> "Eastlaw."
[snip]
> I distribute free of charge a little computer program that, when
> run on my customer's PC's, ALTERS the Westlaw software so that it now
> displays the EASTLAW name to the screen instead of the Westlaw name:
> that is, where it used to say "Dialing Westlaw..." now it says "Dialing
> Eastlaw...."
>
> Am I committing contributory infringement by inducing my customers to
> run a program that will alter their copyrighted Westlaw software so
> that it displays a correct message to the screen when contacting my
> Eastlaw database? Note that no copy of the Westlaw software is being
> created: it's merely being modified.
Most software, even that which is given away free, is licensed to the user. I don't have a copy of Westmate's license handy, but I do have some language from the Lexis license:
Under the Restrictions section of the license, it says:
"You may not and you may not permit others to . . . (c) modify or prepare derivative works of the Software."
Therefore, if this license is legally enforceable, a mere modification of the software would be a violation of the license.
If you remove the license from the equation, then the focus would be on whether a derivative work was prepared by the user in changing all instances of Westlaw to Eastlaw. Those courts, like the 9th Circuit, who have concluded that there can be an infringement of the derivative work right even if the infringing work would not be sufficiently original to be copyrightable, would probably find an infringement. Those that don't would not. I'm not sure there is much more to this story.
BTW, as a footnote, it's not clear to me that there would be absolutely no copying of the Westlaw software. In making the changes there might be some intermediate copying going on. Finally, Ari makes it sound deceptively simple to use Westmate for some other service. It is very unlikely that just changing a few literals in the program would make it work with any other service unless all the software at the server end were virtually identical to what is located at West's servers. And a lot more would have to be changed even at the client end. I know this muddies up Ari's hypo, but, technically speaking, it is tough to make the whole thing work.
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