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Mark Lemley of Boalt Hall led the charge. Abevy of law professors-along with library and computer industry groups-are up in arms over a recent ruling by the U.S. Court of Appeals for the Federal Circuit that could undermine fair use of copyrighted material. And apparently the Federal Circuit is listening to what they have to say. The object of their ire: A ruling in Bowers v. Baystate Technologies Inc. that allows shrink-wrap license agreements to ban reverse engineering of software products. Shrink-wrap licenses are unsigned agreements between the purchaser of a software program and the manufacturer that specify the conditions for use of the software. The term refers to the cellophane-wrapped boxes that software products are packaged in; once the package is broken the consumer is bound to the licensing terms. The Federal Circuit ruled that Baystate breached its contract with software vendor Harold Bowers because his shrink-wrap license agreement specifically prohibited reverse engineering of the software product. Baystate had argued that the Copyright Act preempts licensing terms that limit the use of copyrighted materials. In response to the ruling, Mark Lemley, a professor at the University of California, Berkeley’s Boalt Hall School of Law, filed a friend of the court brief, asking the Federal Circuit to clarify its “sweeping language” in the case. He submitted the brief on behalf of 33 intellectual property professors, the American Library Association, and other groups. Lemley argued that “the panel in essence held that by using a shrink-wrap license, a publisher could require users to waive all their privileges under the Copyright Act.” He also wrote, “Such a result would remake copyright law as we know it.” Besides prohibiting reverse engineering, Lemley says shrink-wrap licenses could also be used to deny a scholar his fair use privilege to quote a novel-or a library the ability to lend books. Specifically, such licenses can be applied to digital books or other content available online. The Federal Circuit seems sympathetic to Lemley’s arguments. It has asked Bowers’s counsel to respond to the brief. Lemley is encouraged by the re-sponse. He says the Federal Circuit rarely grants such petitions, and asking for the other side to respond is akin to the U.S. Supreme Court asking for a response to a cert petition. “It says the court thinks there’s something serious here,” he says. But Bowers’s attorney, Frederic Meeker, a partner at Washington, D.C.’s Banner & Witcoff, contends the court’s request is not unusual. The amici did not ask the court to reverse its decision but to clarify that in some cases intellectual property law preempts shrink-wrap license terms. For instance, Lemley wrote, “In some circumstances, such as in a trade secret context, a restriction on reverse engineering may be consistent with copyright policy.” He adds, “We are concerned, however, that the panel in this case has gone to the opposite extreme, adopting a blanket rule that such restrictions are never preempted.” “Obviously, we don’t agree with the position,” Meeker says. -Brenda Sandburg The Recorder

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