[DMCA-Activists] ALA on Shrinkwrap "Licenses," Info Freedom and Aimster

[Seth Johnson]

(ALA Washington Office Newsline)

-------- Original Message --------
Subject: [ALA-WO:829] ALA Supports Parties in Copyright-Related Cases
Date: Tue, 03 Jun 2003 16:19:20 -0400
From: "ALAWASH E-MAIL" <address@hidden>
To: ALA Washington Office Newsline <address@hidden>

ALAWON: American Library Association Washington Office Newsline
Volume 12, Number 49
June 3, 2003

In This Issue: ALA Supports Parties in Copyright-Related Cases

ALA recently took the opportunity to join in two amicus curiae (friend of
the court) briefs.  The Association of Research Libraries (ARL) and the
American Association of Law Libraries (AALL) also participated as amici.   

Baystate Technologies, Inc. v. Bowers, petition to the U.S. Supreme Court
(filed on June 2).  In September 2002, ALA had signed on as a party to an
amici curiae brief in the case of Bowers v. Baystate Technologies, on appeal
to the U.S. Court of Appeals for the Federal Circuit.  The brief asked the
appeals court to reconsider its broad ruling in August 2002 that federal
copyright law does not pre-empt a shrink-wrap contract prohibiting reverse
engineering.  The brief addressed the narrow legal question of the extent to
which a provider of copyrighted content can unilaterally override the
objective of federal copyright law, which is based on the Constitution, by
printing a shrink-wrap license on the content's packaging.  Joining ALA were
the Electronic Frontier Foundation, Americans for Fair Electronic Commerce
Transactions, the Digital Future Coalition, the Association of Research
Libraries, the American Association of Law Libraries, the Computer &
Communications Industry Association, the U.S. Association for Computing
Machinery (Public Policy Committee) and 33 professors of intellectual
property law at universities throughout the United States.

The Court of Appeals did not change its opinion and the case has now been
appealed to the U.S. Supreme Court.  The Institute of Electrical and
Electronics Engineers (IEEE) took the lead in writing an amicus brief in
support of the request that the Supreme Court hear the appeal and to reverse
the appeals court.  The brief argues that the appeals court's decision has
created substantial uncertainty regarding the public's ability to engage in
fair use of copyrighted works.

FareChase Inc. v. American Airlines, Court of Appeals for the Second
District of Texas (brief to be filed mid-June).  This case concerns the use
of raw facts from a publicly accessible web site hosted by American
Airlines.  FareChase develops software used by Sabre and other ticketing
services to gather airfare information from airline websites.  American
Airlines' web site contained a notice on the first page, telling users that
they were forbidden from using the information on the pages.  American filed
a complaint in Texas state court containing claims for breach of contract,
trespass to chattels, misappropriation, and violation of the Texas computer
crime statute.  The judge granted a temporary injunction against FareChase
on all theories, and the case is now on appeal to the Texas Court of
Appeals. The brief, written by Jonathan Band of the firm Morrison & Foerster
(outside counsel for ALA) argues for the right to make transformative uses
of facts and against shrink-wrap/browse-wrap terms that attempt to limit the
right to use facts.

ALA, ARL and AALL also signed on as parties to yet another amicus brief, but
the court of appeals has denied the parties' motion for leave to file the
brief.  Following is a description of the case and the arguments that the
amici sought to make: In re Aimster Copyright Litigation, U.S. Court of
Appeals for the Seventh Circuit.  The appeal is from a decision by the U.S.
District Court for the Northern District of Illinois, ruling that a company
that provides peer-to-peer file sharing software, Aimster (now Madster), is
liable for the copyright infringements of third parties who use its
products.  The Electronic Frontier Foundation took the lead in writing an
amicus brief that it sought to file with the appeals court.  The brief took
a very reasonable position on the application of the U.S. Supreme Court's
Sony v. Universal test to technology (in that case, the Betamax VCR).  That
was the focus of the brief - that the Supreme Court adopted a clear rule
that has served the copyright and technology sectors well for nearly 20
years:  so long as a technology is capable of substantial noninfringing
uses, its creation or distribution cannot be the basis for holding the
technology company liable for the misdeeds of third parties.  There may be a
later opportunity to file an amicus brief, depending upon the outcome of the
proceedings.

******

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ALA Washington Office, 1301 Pennsylvania Ave., N.W., Suite 403, Washington,
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