Whether Blacksheep infringes copyright by “leveraging” Firesheep’s code?
Objection 1: Firesheep claims that its purpose is to demonstrate security vulnerabilities and is not intended for nefarious purposes. Would not what it does be illegal otherwise? If it complained about others using its code for similar purposes, would that not illustrate that its objective is other than educational and at that point it would then be breaking the law?
Objection 2: Firesheep has put its code out there and others should be able to use it as they see fit, especially to protect themselves from how the Firesheep code may be used. Further, all Blacksheep does is provide the tool. It is the individuals using it who are the infringers. Blacksheep should be left out of the equation.
On the contrary, if by “leveraging” Firesheep’s code, Blacksheep causes a copy of the Firesheep code to be made, this copying, if unauthorized by Firesheep, would seem to constitue an infringement.
I answer that, Blacksheep markets its product for the very purpose of combatting Firesheep, so one may find that Blacksheep has distributed such “device” with the object of promoting its use to infringe copyright, as shown by its clear expression to foster infringement. As such, Blacksheep could be contributorily liable for the conduct of its users.
Reply to Objection 1: One’s characterization of his own purpose does not ultimately determine whether that purpose is legal. Consider the law’s unwillingness to exhonerate a person accused of inflicting a black eye based on the defense that the assault was to study of the biological origins of bruising. But just below the surface here is the sentiment of the “unclean hands” doctrine. A court will not award relief to a party who comes to court with “unclean hands.” It may seem unfair for Firesheep to be so exploitative of others (privacy rights) and at the same time complain that others are being exploitative of its copyright rights.
Reply to Objection 2: The stated purpose of education or furtherance of the public interest, should not preclude Firesheep from claiming copyright in its code. Consider that no reasonable person will deny public television stations’ claim of copyright on their programming. One would infringe by posting NOVA to YouTube.