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 , 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, wherewhat 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.