Great Circle Associates List-Managers
(July 1997)

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Subject: Re: List Being Used to Create Spam List
From: "Michael C. Berch" <mcb @ postmodern . com>
Organization: Postmodern Consulting, California USA
Date: Sat, 12 Jul 1997 17:10:08 -0700
To: Chuq Von Rospach <chuqui @ plaidworks . com>
Cc: "Adam H. Kerman" <ahk @ chinet . chinet . com>, list-managers <list-managers @ GreatCircle . COM>
References: <199707122002 . NAA03838 @ eskimo . com> <v03110718afedc2125e06 @ [207 . 167 . 80 . 70]>
Reply-to: mcb @ postmodern . com

Chuq Von Rospach wrote:
> At 2:47 PM -0700 7/12/97, Adam H. Kerman wrote:
> >>Software makers do this all the time. . . so it can't be as
> unenforceable as
> >>you say.
> >
> >Intellectual property is different; a list of subscribers doesn't
> qualify.
> I'll disagree. It's my resource. I spent the money and energy to
> create the list of subscribers (or the service that creates it). Therefore I
> think intellectual property is a perfectly valid argument -- it's my
> sweat equity and pocketbook, so I sure better have a say in its use.

An appealing argument, but not the state of the law.  The only two applicable
intellectual property theories would be copyright and trade secret, and
neither would apply here.  As to copyright, the aptly-named "sweat of the
brow" doctrine was deprecated by the Supreme Court a few years ago; a simple
compiled list, directory, etc. does not qualify as an "original work of
authorship" (the criterion of subject matter in the Copyright Act).  There has
to be a significant value-added component.  This was in a case involving a
white-pages telephone directory.  

As for trade secret, unless you actually rent out the list of have some other
business purpose for it, it's not "trade", and if you don't make a very
serious effort to protect it, it's not a "secret".  Trade secret law is 
*very* picky. 

> >And, you collect damages how exactly?
> Go to small claims court and define a value for the rental of the
> mailing list. Tihs is a perfectly acceptable practice, since it has a
> viable analogy with magazine subscriptions and other lists that are
> regularly rented. And if someone were to grab one of THOSE lists
> without paying for it, you can bet the court would have no trouble
> defining damages.

One, you would have to show that you actually did rent out the list or had
concrete plans to do so.  Courts are rightfully very leery of valuations based
on analogous or hypothetical valuations.  And statements to the defendant
saying that the list is not to be used for commercial purposes and that you
don't want your subscribers spammed shoots that argument in the foot. 

But even if you were able to show a valuation, it would be trivial since most
lists are very small and rental *per name, per mailing* is usually on the
order of 10 cents or so, and the lifetime of a given list (per mailer) is
considered to be maybe 5-6 mailings.  

Michael C. Berch
mcb @
 postmodern .
 com / mcb @
 greatcircle .

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