Intellectual Property Issues

Across the web, copyright and trademark claims are being used to censor the free flow of speech and information. This would be fine if legitimate Intellectual Property (IP) issues were at stake, but they are not. Electronic Frontiers Georgia (EFGA) wants you to know the facts.

Adobe Sues ISP's over web links

Adobe, Claris, and Traveling Software sued three IPPs the week of October 7th, 1996. Community ConneXion, Tripod, and GeoCites were named in three seperate suits filed in (federal) district court. Two of the suits were in California, one was in Massachusetts. The three defendants may be more properly referred to as Internet Presence Providers (IPPs) rather than Internet Service Providers because they do not offer dial up connections. Adobe sells PhotoShop, Claris sells Filemaker Pro, and Traveling Software sells Laplink. (In all honesty, a company called Travelling Software, with two l's is named as a plaintiff. We can only assume that the attorneys do not actually know who their clients are.)

Adobe's lawsuit alledges that ISPs in general are legally and financially responsible for all content and links on user's web pages, even if tens of thousands of web pages exits. Apparently Adobe wants each ISP to constantly monitor each users web pages, and check out all the links.

Adobe's lawsuit speaks of "Cracker Tools". What Adobe's complaint refers to, we assume, is software, sold by companies such as Symantec, that allow people to get around those annoying copy protection schemes. The lawsuit seems to claim that any software tool "able to circumvent the copy protection devices incorporated into computer programs" is in itself illegal and is illegal to distribute. So it was claimed when VCR's first appeared, as in Sony Corp. v. Universal City Studios, Inc.

Most reputable software companies have backed away from archaic copy protection schemes. At one time, copy protections schemes were such a nuisance that companies were born from the sales of cracking utilities. Software such as Copy II PC would stay on the best selling list for weeks. In fact, most companies, including Adobe, Claris, and Traveling Software allow their copyrighted software to be downloaded from the net without copy protection. And they want you to use it!

The lawsuit goes on to state that multiple archival copies of software, such as implemented in tape backup systems cannot "lawfully be made without the express authority of the copyright holder." Each of these unauthorized archival copies "deprive the copyright owner of his exclusive property without compensation." Of course, this is contrary to Title 17 USC Section 117, which says if you own a piece of software, you can make as many copies as you want.

Adobe's claim is best summed up in their own words. The full text of the actual infringement is as follows:

Defendants intentional and unauthorized distribution of cracker tools and links to sites containing illegal copies of Plaintiffs' copyrighted software constitute copyright infringement under the 1976 copyright Act.

Sounds hard to believe that a company who is claiming to embrace the Web would file a lawsuit like this one. So EFGA called up Adobe at (408) 536-6000. We asked for Charles Geschke, the CEO. Mr. Geschke was not available, but we spoke to his assistant. When we got our call back, Adobe told us that they prefered not to comment. Then a few days later, EFGA got a call from Carol Sacks. Ms. Sacks was quick to deny that Adobe filed any such lawsuit. She claimed it was not Adobe, but attorneys that filed the lawsuit, and we should talk to the attorneys and their representatives, not Adobe.

Well, I'm holding copies of the lawsuits and emails in my hands. I was on the phone to one of the defendants while the process server delivered the lawsuit which he faxed to me. My copies say "Adobe Systems, Incorporated," filed the lawsuits. What Ms. Sacks did was not uncommon. It is not unusual for attorney to go off in a direction that is unknown to their clients. I can't blame her for trying to distance Adobe from this action. But the fact remains, Adobe, Claris, and Traveling Software filed the lawsuits. These three software companies are responsible for the current attack on Web linking.

What liability do ISPs have for user content? According the the Telecommunications Act of 1996 - NONE. Section 509 removes liablity from ISPs and puts it with the information content providers where it belongs:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Some articles on the situation

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