So I read the actual complaint here. I believe that’s it, anyway.

Last year, we wrote about the troubling lawsuit filed by Thomson Reuters claiming that George Mason University, the makers of an open bibliography software, Zotero, had violated its copyright by reverse engineering the file format used by Thomson Reuters’ own proprietary bibliography software, EndNote.

Now it’s not a searchable PDF, but scanning through it a couple times I don’t see the words Copyright or DMCA in there anywhere. In fact, the suit doesn’t seem to have anything to do with copyright. It seems to do entirely with licensing and contracts. There is exactly one count in the complaint, and it is a count of Breach of Contract, and does not seem to mention copyright at all.

The article linked to substantiate the connection to copyright is another article by Mike, who asserts that it is the DMCA that permits Thomson to have restrictive terms in their license agreement. I’m not sure exactly how that works; I’m fairly familiar with the DMCA and there is an explicit provision for reverse engineering.

I imagine that perhaps Mike is thinking of the BnetD case. In this case, if I recall correctly, the court found that both the DMCA and license provisions prohibited the reverse engineering, but the circumstances were different: the court found that the reverse engineering was not solely for interoperability (as required by the DMCA), but for other things too (including allowing people to play unauthorized copies of Blizzard games over the network).

Here it seems that only the contract provisions are asserted, since there’s no encryption being circumvented or anything, at least as far as I can tell.

In the copyright office’s summary of the DMCA, ‘license’ and ‘licensee’ are mentioned a few times, but not in the context that Mike is talking about. There are also discussions of licensees in the text of the act but it’s unclear exactly how the DMCA, especially in this case, permits a kind of contract to exist between George Mason and Thomson that would not otherwise be permitted.

Whether or not you can contractually waive your right to reverse engineer something is a separate matter. From the BnetD decision:

“[P]rivate parties are free to contractually forego the limited ability to reverse engineer a software product under the exemptions of the Copyright Act[,]” Bowers v. Baystate Techs, Inc., 320 F.3d 1317, 1325–26 (Fed. Cir. 2003), and “a state can permit parties to contract away a fair use defense or to agree not to engage in uses of copyrighted material that are permitted by the copyright law if the contract is freely negotiated.” Id. at 1337 (Dyk, J., dissenting).”

Back to the article:

Zotero could open bibliographies created in EndNote and then resave them in an open format — a very useful tool that should be perfectly legal — but which Thomson Reuters claims violated its license agreement, which bars reverse engineering.

If I’m looking at the correct complaint, then this description is false. What the complaint is about is that Zotero can import EndNote style files, not bibliographies.

EndNote style files are templates that allow a bibliographic record in the EndNote database to be automatically formatted for a particular journal or other venue, in the format required by that journal. There are thousands of different journals and conferences, and many require very precise, very different ways of formatting a bibliography for submission. EndNote comes with a collection of some 3500 templates for different journals and other publication venues. Zotero can apparently import these.

Also, wouldn’t it be nice if the company focused on competing by innovating on tools and features.

I imagine that’s what they were trying to do. The 3500+ style files that come with EndNote required many, many hours of work. Someone had to go out and find out the bibliographic constraints for all these hundreds or thousands of journals, then write templates for all of them, and then check and debug them in subsequent versions.

It is the case that (assuming one of the 3500+ included files doesn’t suit your needs) you can write your own style files. In my experience, this is somewhat exceptional. Thomson’s argument seems to be that the purpose of a style import converter is not primarily to convert user-defined styles, but to convert the 3500 premade styles that Thomson collected and edited.

Now there are several dozen reasons I can think of that this suit might have been dismissed, and unfortunately most of them are fairly legal and mundane (the guy who developed Zotero wasn’t bound by GMU’s site license, the court didn’t want to grant injunctive relief in a breach of contract dispute, etc.) I suppose they could also drop a bombshell and make a precedent-setting ruling governing the legality of anti-reverse-engineering provisions in license agreements or the legality of clickwrap agreements or something like that, but we’ll have to wait a week or two to see the transcripts.

I’m sure you can think of 1,000 reasons why this lawsuit is still a travesty, even with the above corrections, but let’s at least be fair: this lawsuit seems to have nothing to do with the DMCA nor (substantially) with Thomson locking up user-created data. It has to do with what consenting parties can agree to in a contract, and whether those contracts should be enforceable.

Lest we forget, contract law protects business models just as much as other kinds of law.