Great Circle Associates List-Managers
(May 2003)

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Subject: Re: "If we came into posession of evidence..."
From: Michael C.Berch <mcb @ postmodern . com>
Date: Fri, 2 May 2003 17:48:49 -0700
To: List Managers List <list-managers @ greatcircle . com>
In-reply-to: <3EB0F5F6 . 7591 . D2F0B2B @ localhost>

On Thursday, May 1, 2003, at 10:24  AM, Anne P. Mitchell, Esq. wrote:
So my question is: if we came into possession of evidence of
someone selling the usernames/addresses of another mailing list
(_your_ mailing list) would you, as a list manager, be interested in
pursuing legal action against the list broker?

My first question is, what is the legal theory and cause of action?

Absent specific data privacy laws, as in the EU, a list of names and email addresses does not seem to me to be, prima facie, protectible. It's not copyrightable (it would fail the original work of authorship subject matter test, especially since the demise of the "sweat of the brow" doctrine); it's not a trade secret since it's (a) not typically secret, (b) not disclosed under NDA-ish rules, and (c) is in most cases not involved in a trade or business; and none of the common-law unfair competition (etc.) laws would seem to apply.

I personally do not claim any proprietary rights in the lists I run; I believe compilation copyrights of the contents, even where claimed, are exceptionally weak and may be nonexistent in the case of automatically generated digests and archives; and I don't claim any rights in the compilation of list of subscribed addresses, which in the case of most lists using list server software, is automatically and mechanically generated in any case.

Let's just say that if I had a choice of representing the plaintiff or defendant on a contingency fee basis here, I'd pick the defendant.

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

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