The alphabetical listings of members contained within most membership directories of trade and professional associations are valuable property. They are so valuable that many associations sell such information through mailing list "rental" programs to, among others, suppliers of products or services to the association's members. Moreover, association membership lists are being pursued with tremendous vigor by scores of dot.com companies seeking to make headway into various industries and professions. Yet, it is surprising for many associations to learn that, without the association taking certain preventive measures, suppliers, dot.coms, and others are free to scan such listings from the association membership directory into a computer database and then use such information to generate mailing labels (or fax or e-mail databases) for their own marketing purposes - without paying the association a dime!
While the association membership directory may, as a whole, be protected by copyright, the alphabetical listings of members found within the directory - containing members' names, addresses, telephone and fax numbers, and possibly e-mail addresses - generally are not subject to copyright protection by the association, as they do not possess the minimum originality of expression required by copyright law. Copyright only protects original expressions of ideas - not the underlying facts or data. Thus, unless the information is organized and set forth in an original, creative manner, copyright holds no bar to someone freely utilizing those facts or data, despite the intensive efforts the association may have undertaken to compile such information, and despite the fact that the overall directory may be protected by copyright.
Consequently, while state unfair competition statutes may or may not offer a remedy, all of the copyright notices and registrations in the world will not provide copyright protection for mere alphabetical listings of member names and addresses.
All is not lost, however. There is a simple and cost-effective way to provide the desired protection for this valuable intellectual property of the association. Through what is essentially a contract, the association can place strict limitations and preconditions on the use of the information contained in its membership directory, thereby preventing a supplier, for instance, from scanning the directory into its computer system and utilizing the resulting mailing list at will and without payment to the association.
While a written agreement between the association and each user of the directory would be the ideal medium, from a legal perspective, in which to codify such limitations and would ensure the maximum protection for the association, this is not a particularly feasible option. Borrowing a page from the software industry, the most practical way to effect the limitations is through a "shrinkwrap license," whereby the directory is wrapped in plastic and a label affixed to the front of it which provides that the opening of the plastic and use of the directory shall represent the user's agreement to the terms of the "license" set forth on the label. Such terms may include provisions limiting usage to personal reference only and prohibiting distribution, resale, copying, and use as a mailing list, among other conditions. This license also provides a vehicle through which the association can disclaim any implied endorsements or guarantees of the association's members merely from their presence in the directory.
Set forth below is a sample legal notice and disclaimer suggested for use by associations as a "shrinkwrap" license on their annual membership directory. It is recommend for use in connection with all sales and distributions of the directory, both to members and non-members alike. An appropriately modified version of the license also is recommended for use in connection with an on-line (Internet-based) or CD-ROM version of the association's membership directory, as well as with all rentals of the association's membership mailing list. In the on-line context, a "click and accept" feature for the license generally is recommended. Of course, the license in each case should be tailored to the individual association and should be reviewed by legal counsel prior to use to help ensure its enforceability.
Finally, despite the lack of copyright protectibility for alphabetical listings contained in membership directories, the directory as a whole likely is subject to copyright protection. Thus, it is advisable to place a copyright notice on the cover or title page of the directory. Such a notice might read: "All contents © 2002 ABC Association. All rights reserved."
Model "Shrinkwrap" License for Association Membership Directory
All Contents © 2002 ABC Association, Inc. All rights reserved. ABC will license to you the contents of this Directory only if you
accept all of the terms and conditions contained in this non-exclusive, non-transferable, limited license agreement. Please
read this license agreement carefully before opening the sealed Directory. By opening this Directory, you hereby accept and agree to
be bound by the following terms and conditions: This Directory shall be used for individual, personal and confidential reference purposes only, and may be used only pursuant to the terms of this license agreement. This Directory and the contents hereof are proprietary products of ABC. The contents of this Directory may not, in whole or in part, be reproduced; copied; disseminated; entered into a computer database; used as part of or in connection with the preparation, revision or confirmation of a mailing, telephone, fax, email, or other marketing list; or otherwise utilized, in any form or manner or by any means, except for the user's individual, personal and confidential reference. Contained herein are the names, addresses, telephone numbers, fax numbers, email addresses, and contact persons of ABC members as of the printing of this Directory. Their presence in this Directory represents only that these companies, organizations, institutions, or individuals are members in good standing of ABC; it does not represent their consent to receive any marketing or related communications. ABC does not endorse these members and makes no representations, warranties or guarantees as to, and assumes no responsibility for, the products or services provided by these members. ABC expressly disclaims all liability for damages of any kind arising out of the use or performance of the products or services provided by these members.