[tptacek]

"To be improper, interference must be wrongful by some measure beyond the fact of the interference itself, such as a statute, regulation, recognized rule of common law, or an established standard of trade or profession."

They don't need a defense: nobody has yet stated a claim!

[Retric]

It was claimed they committed copyright infringement and they admit to photographing his works as part of this discovery.

It actually being copyright infringement is questionable, but if so it would be improper behavior.

[maratc]

NAL but in copyright it’s not making a copy that’s problematic, it’s making that copy available to others. Anyone can take a picture of Mickey Mouse; one only has a problem when they start to sell it.

This cryptography solution is more akin to mathematics. And mathematics isn’t covered by the copyright law.

[Retric]

Civil penalties can be imposed when make a single copy without a fair use exception, this is why pre BitTorrent people got into trouble for downloading music for themselves. The government doesn’t care unless you get sued but they will enforce the lawsuit if you lose.

Criminal investigation and penalties occur with wide scale commercial distribution of copyrighted works.

They copped the actual message in its entirety not just a cryptographic formula. Further, his hand written notes may have creative expression even if the process itself isn’t protected by copyright. Similar to how software code is protected.

[maratc]

Would "personal research" qualify for a fair use exception?

In any case it would not seem reasonable for Sanborn to sue these two guys for "copyright infringement" when all they did was study his own works that he donated to the library for the others to study. This would probably tarnish his reputation forever.

[Retric]

Fair use isn’t so easily to determine based on individual criteria, you’re not allowed to copy a full book for personal research but to copy a paragraph is likely fine. Where exactly the line is drawn is what the courts decide after the fact, but let’s photograph everything and send them to someone else to read isn’t likely to qualify for fair use.

Also, he doesn’t need to be the person suing here. The auction house can sue based in part on a copyright breach because that’s not something they had permission to do even without owning the copyright. The idea is to separate fair from unfair competition, if your competitor is using slave labor that’s not something you’re allowed to do. It’s not directly impacting you but the indirect effects from such actions also matter.

[tptacek]

Yep! That'd be a real claim. I hadn't seen that earlier.