DCist: Thomson Reuters Sends George Mason University an EndNote, All Right

hmcd128

Thu, 16 Oct 2008 16:54:23 -0500

@ noksagt: thanks for clarifying. I know American University just had EndNote licensed for faculty, staff and students, and now I'm wondering how (or if) this case will affect my colleagues and students--especially if Thomason Reuters chooses to prosecute every little contract "violation".

noksagt

Wed, 15 Oct 2008 15:29:09 -0500

Politburo: What if the Zotero team never downloaded EndNote from the University? If not, why would he be held by the contract covenants for material he gained through other sources? If so, what if the agreement that the University signed was never presented to him? Even if he was bound by the contract, it is not clear that a contract violation has actually taken place or that what Thomson Reuters is requesting can be reasonably expected under contract law. And GMU agrees, or they would be settling instead of fighting. To this latter point: refer to Jacobsen v Katzer. If open source licenses were based merely in contract law (rather than copyright law), there would be no ability to get huge penalties and even the ability to get an injunction would be suspect: simply put, they'd only get actual & proven damages for violating the contract. For the open source product in the Jacobsen case, that would mean nothing. In Thomson's case, they'd have to demonstrate $10M in actual losses (as opposed to the incalculable harm of copyvios).

Politburo

Wed, 15 Oct 2008 09:43:03 -0500

noksaqt: The professor works for the University, and did the RE as part of his duties with the university, so I think he would be bound by the contract, even if he wasn't aware of the provisions (GMU should be liable for the breach, though, not him, unless GMU can show that he knew, was told to stop, etc.). Because this software was released publicly and presumably has harmed EndNote's economic value, I believe they would be entitled to damages, but that may be governed by state laws.

noksagt

Tue, 14 Oct 2008 21:36:28 -0500

Cactus Jack is right. This is not a copyright case, but a contract case. You can ask people to sign a contract with draconian terms in it. In this case, the contract did have a covenant prohibiting reverse engineering the software. However, the Zotero developers most likely did not decompile EndNote to implement this feature--they needed only to look at the style files, themselves. The open questions are then: Does that really apply to the simple, undocumented style files (that can be freely downloaded from other sites)? Does a site license agreement apply to every single individual at a site if they don't, themselves, accept that agreement? Are you actually entitled to damages and injunctions for a broken contract (as opposed to copyright violations)? @hmcd12, Yes--Zotero is a Firefox extension (not for IE, though) & it is still free/open source. While it is true that Zotero and EndNote can coexist, Thomson Reuters is taking an "all or nothing" approach (and they have lost me as a customer because of it).

Politburo

Tue, 14 Oct 2008 14:59:22 -0500

Doing some more reading, I forgot all about bnetd. In that case, the 8th circuit upheld a lower ruling that said the contract supersedes the law.

Politburo

Tue, 14 Oct 2008 14:50:33 -0500

Cactus jack: There is a provision in DMCA that basically says "if you got the software legally, you can RE it". I would assume this could not be preempted by a EULA, otherwise it would be mostly meaningless because every publisher would preempt it. However I am not sure, and again I am not 100% sure that DMCA is applicable.

HCE

Tue, 14 Oct 2008 14:37:51 -0500

Wow. Slow news day, eh?

hmcd128

Tue, 14 Oct 2008 14:32:24 -0500

Isn't Zotero a free add-on via Firefox or Explorer? I didn't know there was a pay version of Zotero. I have used both in the past and the two can easily be used in conjunction, not either/or.

cactus jack

Tue, 14 Oct 2008 14:23:13 -0500

I dissent. A company can prohibit reverse engineering as a matter of contract. Thompson says that GMU professor agreed to use Thompson software in accordance with a set conditions set forth in a license. One of the conditions apparently prohibited reverse engineering. The prof allegedly breached that provision. If all this is true, it looks like a straightforward breach of contract claim. However, if there's a statutory provision that overrides the license, I'll happily stand corrected.

IMGoph

Tue, 14 Oct 2008 14:21:38 -0500

awesome, kriston. well played!

hillrat

Tue, 14 Oct 2008 12:14:28 -0500

Looks kind of like some DFW footnote love.

Xtena

Tue, 14 Oct 2008 12:08:58 -0500

yep i concur. can't prevent the reverse-engineering unless legally preventing the commercial ramifications, with a patent holding exclusivity for x amount of years so a competitor can't produce/market/sell your product until your sole proprietorship expires. i like this story. good job dcist. ignore the flack of non-nerds. i appreciate your reportage and citation. and in my world, i'm the only one who matters anyway.

Fed

Tue, 14 Oct 2008 12:04:00 -0500

Love the references at the end. What application did you use? Let me guess, Zotero?

Politburo

Tue, 14 Oct 2008 11:57:30 -0500

I haven't been up on these issues in a few years, but this seems like a clear cut case. You cannot prevent someone from reverse-engineering your file format and there is an explicit DMCA exemption (though I don't think DMCA applies here).

Virginia is for Losers

Tue, 14 Oct 2008 11:51:46 -0500

Can't. Understand. Any. Of. That. Not. Big. Enough. Nerd.