Bowers v. Baystate update (shrinkwrap against reverse-engineering)
Bowers v. Baystate is a case where a district court upheld as law that a shrinkwrap license can forbid reverse-engineering (see my earlier blog entry)
Yesterday (January 29, tip thanks due to Donna Wentworth at Copyfight), the decision was apparently updated with a "concurring/dissenting opinion" by one of the other judges in the case. That now-available opinion by "Judge Dyk", is well worth reading, as it delves into all the copyright/fair-use/reverse-engineering issues:
"By holding that shrinkwrap licenses that override the fair use defense are not preempted by the Copyright Act, 17 U.S.C. - 101 et seq., the majority has rendered a decision in conflict with the only other federal court of appeals decision that has addressed the issue - the Fifth Circuit decision in Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988). The majority's approach permits state law to eviscerate an important federal copyright policy reflected in the fair use defense, and the majority's logic threatens other federal copyright policies as well. I respectfully dissent. ...""However, state law giving effect to shrinkwrap licenses is no different in substance from a hypothetical black dot law. Like any other contract of adhesion, the only choice offered to the purchaser is to avoid making the purchase in the first place. See Fuentes v. Shevin, 407 U.S. 67, 95 (1972). State law thus gives the copyright holder the ability to eliminate the fair use defense in each and every instance at its option. In doing so, as the majority concedes, it authorizes "shrinkwrap agreements . . . [that] are far broader than the protection afforded by copyright law." Ante at 13."
By Seth Finkelstein |
posted in copyblight
, legal
|
on January 30, 2003 02:48 PM
(Infothought permalink)
| Followups
