Re: AOL aid in an open source IM project

From: Gordon Mohr (
Date: Sun Apr 01 2001 - 22:39:39 PDT

Kragen writes:
> "Gordon Mohr" <> writes:
> > I would like to see this copyright question tested by the
> > courts. Reproducing a full copy of aim to be used as a key
> > might very well be a "fair use", if you're not executing
> > the copy -- or at least if you're a registered AIM-user in
> > good standing.
> Yeah, Sega v. Accolade, 977 F.2d 1510 (9th Cir. 1993), but I don't
> think it's clear that the decision would be the same here --- one of
> the factors considered in decisions about fair use is the volume of
> copying, which is much greater here than in Sega.

Interesting reference!

> > If copyright law could truly be used in this way, then
> > there'd be no legal need to use a key as long and multipurpose
> > as aim.exe. AOL could just copyright a much shorter keyphrase --
> > like say "Dammit, you've got hail!" -- and use copyright law
> > to prosecute anyone who echoed this back to their servers
> > without permission.
> Sega again, but also, words and short phrases are statutorily not
> copyrightable.

Then for whatever definition of "too short to copyright" that
might be accepted, the passphrase can be a little longer.
My point remains that if copyright law is AOL's ally on this
case, it's not necessary for them to use a copyrighted key
as big as aim.exe. (A haiku is long enough to copyright,
isn't it?)

Another tack they could take, which makes more sense to me
than using copyright law: make the passphrase, however short,
include a trademark. Compatible software would then have to
echo an AOL trademark back to AOL -- which strikes me as
quite analogous to the illegal misuse of anothers' trademark
to deceive humans. That is, if I can't pretend I'm AOL in
public, why can my software pretend that it is from AOL
over the wire?

That seems logical to me, though I would dislike the
implications if this tactic proved legally effecive.

- Gordon

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