Cross posting: ALA Supports Parties in Copyright-Related Cases

["Neal Pomea" <npomea@xxxxxxxx>]

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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ALAWON (ISSN 1069-7799) is a free, irregular publication of the
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Murphy