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. ****** ALAWON (ISSN 1069-7799) is a free, irregular publication of the American Library Association Washington Office. All materials subject to copyright by the American Library Association may be reprinted or redistributed for noncommercial purposes with appropriate credits. To subscribe to ALAWON, send the message: subscribe ala-wo [your_firstname] [your_lastname] to listproc@ala.org or go to http://www.ala.org/washoff/alawon. To unsubscribe to ALAWON, send the message: unsubscribe ala-wo to listproc@ala.org. ALAWON archives at http://www.ala.org/washoff/alawon. ALA Washington Office, 1301 Pennsylvania Ave., N.W., Suite 403, Washington, D.C. 20004-1701; phone: 202.628.8410 or 800.941.8478 toll-free; fax: 202.628.8419; e-mail: alawash@alawash.org; Web site: http://www.ala.org/washoff. Executive Director: Emily Sheketoff. Office of Government Relations: Lynne Bradley, Director; Camille Bowman, Mary Costabile, Don Essex, Patrice McDermott and Miriam Nisbet. Office for Information Technology Policy: Rick Weingarten, Director; Jennifer Hendrix, Carrie Russell, Claudette Tennant. ALAWON Editor: Bernadette Murphy.