Roger Pearson finds that 'seed' addresses in databases are acceptable evidence of copyright abuse
The computer industry is one of the fastest growing areas of business. But the speed with which it has grown has in many ways left it without legal machinery to protect its products and by-products.
That fact was brought home by recent litigation between publishing giants Reed Business Publishing, whose titles include a number of computer periodicals and list compilers Profords Associates of Buckinghamshire.
The action mounted over copyright infringement of a database ended in a settlement with Profords agreeing to pay Reed's u29,000 legal costs and the deletion of more than 14,000 names and addresses from Profords' database.
However, serious questions remain over the copyright status of such lists and the weight courts would place on the evidence which is currently resulting in settlement in such actions.
Should such an action be fully contested, there is no doubt that the level of case law available is sparse. Any contested action of this nature, is destined to become an immediate authority.
The recent Reed action centred on illicit use of a circulation database derived from its magazine Computer Weekly.
Paul Sanderson of the Leeds office of Dibb Lupton Broomhead, who represented Reed and its list manager Mardev, feels the fact the case settled indicates that companies specialising in database compilation are able to take effective measures which leave copyright pirates with little alternative but to admit their misdeeds. This is despite the lack of precedent-making case law.
So-called 'seed' names who will report illicit approaches generated by database mis-use are included in databases. It was use of such seeds that uncovered misuse of the Computer Weekly generated data. Information derived from such a source seems to leave culprits with little choice but to admit what they've done.
The Reed case, and others that have settled in a similar way indicate the effectiveness of the use of seed names. There also seems to be an acceptance by offenders and would-be offenders of the principle that seed evidence will be accepted by the courts and tip the balance should a case go for trial.
Rosemary Smith, managing director of Mardev, says: "I know that other list owners will be pleased to know that seed addressees can be used in court as evidence."
Nevertheless, Sanderson says the recent settlement emphasises the lack of case law and the need for guidance on the weight courts will attach to evidence from seed names and also on the copyright status of database lists.
"It is now established practice for list owners to seed their rental lists and directories with invented names and companies which are given the address of an employee. These so-called seed names are used as deterrents to prevent misuse of lists and to detect misuse," he says.
However, two important questions remain unanswered in relation to evidence from seeds. The industry does not know if the receipt by a seed of an unauthorised mailing is sufficient proof of copyright infringement.
"Nor does it know if the selection process of the sort used by Reed Business Publishing when deciding who to include in its databases is sufficient to make an alphabetical list of names and addressees 'original' and therefore protected by copyright," says Sanderson.
Despite this uncertainty he says that those accused of database piracy appear to accept that once caught out making mailshots to seed names there is little point in contesting the matter. In the long term though he has no doubt the questions he poses need to be answered.