Re: Worm out of database agreement?

I wrote:
>
> Is it obvious that I lose?

Uh, oh. Nothing's obvious. I was afraid of this; Mark Lemley says I lose in the 7th Circuit, but probably win wherever Nimmer holds sway (a lot of places). (This is based, I assume, on Nimmer's discussion at 3.04B3a.)

Dan Burk says I lose plain and simple. Terry Carroll says I lose, too.

It seems to me that the "extra element" analysis posited by Terry would result in validation of agreements to refrain from reverse engineering, as well; after all, the same "extra element" of contractual relationship is present there. Or, consider the scenario of educational institutions buying books from publishers who require agreement from the purchasing institutions that the institutions "will not copy even short passages, even for educational purposes, and even if such copying doesn't in any way negatively affect the market for the book." Or that the institutions "will not publish reviews of the books which in any way summarize or extract any portion of the books' contents"? Should these contractual terms be viewed as valid in spite of preemption because of the "extra element" of agreement of the parties?

I think Nimmer's discussion is fairly persuasive, and wonder whether any of the people who think I lose would rest this conclusion on anything other than ProCD v. Zeidenberg.

-Ari

Ari Kahan
<akahan[_at_]netcom.com> Received on Fri Jun 05 1998 - 22:28:05 GMT