Worm out of database agreement?

All the talk of preemption lately has made me giddy. I'm curious whether folks think that Feist makes database licenses unenforceable, as preempted by copyright law.

For example:

Say I make baseball computer games that are supposed to be statistically realistic; you can pick particular players to be on your team, and the players will behave as they historically did; their batting averages in response to particular pitchers, etc., is all accounted for.

I get my data from a company that has compiled publicly available baseball statistics on a CD ROM. Assume the data has been organized in an absolutely uncreative, rote manner on the CD. I've taken a license from the CD maker that permits me to supply the data to my customers in conjunction with my baseball game. I pay the licensor monthly for the right to continue to distribute the data with the game. The license agreement says that when the agreement terminates, so does my right to re-vend the data, and that any data then in my possession must be destroyed.

Then, I read Feist. "Hey," I say, "I'm being scammed. I don't have to pay for this. At least, not until H.R. 2652 passes." I tell the data vendor to go drink antifreeze, and stop paying him. I continue distributing the data. He sues me; his lawyer is yelling something about contractual obligations. I respond, saying "Preemption. You can't prohibit me by contract from copying and distributing uncopyrightable non-trade-secret data, any more than you can prohibit me by contract from reverse engineering to achieve compatability."

Is it obvious that I lose?

-Ari

Ari Kahan
<akahan[_at_]netcom.com> Received on Tue Jun 02 1998 - 06:19:46 GMT