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List:       dmca-discuss
Subject:    [DMCA_Discuss] Court doesn't extend database protection
From:       Vladimir Katalov <vkatalov () elcomsoft ! com>
Date:       2004-02-27 8:34:03
Message-ID: 142263965000.20040227113403 () elcomsoft ! com
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Court doesn't extend database protection
Last modified: February 26, 2004, 7:16 AM PST
By Declan McCullagh 
Staff Writer, CNET News.com

http://news.com.com/2100-1024-5165624.html
           
In the first case of its kind, a federal court in New York has ruled
that one company's snatching of a database from a rival's Web site
does not violate the Digital Millennium Copyright Act.

U.S. District Judge Naomi Buchwald said in an opinion released this
week that Berkshire Information Systems did not run afoul of the
controversial 1998 copyright law by allegedly downloading up to 85
percent of a proprietary advertising-tracking database from the Web
site of competitor Inquiry Management Systems (IMS).

Buchwald said, however, that she would allow the case to proceed to
trial because Berkshire may have violated the Computer Fraud and Abuse
Act, a law commonly used to convict computer intruders. The law,
invoked in the recent Adrian Lamo case, permits both criminal
prosecution and civil lawsuits when an Internet-connected computer is
accessed "without authorization."

IMS is a Canadian company that monitors 2,500 magazines and claims to
be the largest ad-tracking service for the United States. Its
customers are magazine sales representatives, who can browse through
the IMS "e-Basket" database and learn where advertisers are spending
their money and which ones might be receptive to an advertising pitch.

Lenox, Mass.-based Berkshire offers a competing service called
MarketShareInfo.com that measures competitive advertising by product,
share of market, share of book, editorial ratio and sales territory.

If IMS had won on its DMCA arguments and if the decision had been
upheld on appeal, the case would have significantly expanded the scope
of legal protection that database owners enjoy.

Currently that topic is a contentious one on Capitol Hill, where
Congress is debating what new legal protections, if any, to award to
databases. One proposal is backed by big database companies like Reed
Elsevier and Thomson but opposed by Amazon.com, AT&T, Comcast, Google,
Yahoo and the U.S. Chamber of Commerce.

Because Berkshire may have somehow obtained a legitimate password to
the Web site, the judge said, IMS' argument that the bulk downloading
"circumvented" a security system was a stretch. "Whatever the
impropriety of defendant's conduct, the DMCA and the
anti-circumvention provision at issue do not target this sort of
activity," Buchwald wrote. Section 1201 of the DMCA says "no person
shall circumvent a technological measure" that protects copyrighted
material.

IMS could not immediately be reached for comment on Thursday.

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