Vol 7 No 1 - Roger Williams University School of Law

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the subject. Demographic information is constantlycollected on all consumers by marketers, mail-ordercatalogues and retailers. However, we are unaware ofany court that has held the value of this collectedinformation constitutes damage to consumers or unjustenrichment to collectors.339While the court was apprehensive about recognising this personalclaim for the value of the private data, some academics have goneas far as suggesting that people should be recognised in law aspossessing a property (intellectual property?) right in theirpersonal information.340 This would allow people to protect suchinformation through law and to charge for it in the market place.Samuelson has cautioned against such an approach, arguing thatit would distort the rationale for having property rights ininformation, which could lead to higher transaction costs and aworsened situation for the data subject.341 She prefers a form oflicensing that licenses private information along the same lines astrade secret licensing, where one contractually structures theusage rights of the information before disclosure.342It can be seen from this brief analysis that the growing law onprivacy or data protection, especially in the private sector, willhave a significant impact upon the shape and content of digitalproperty rights.IV. CONTRACTUALLY DEFINED DIGITAL PROPERTYThe contract, an agreement between two or more parties, isthe foundation of many privately ordered relationships and isincreasingly being used to regulate informational propertyentitlements in the digital environment.A. Contractually Created Informational Property RightsContractual rights can be used to extend public or legislativerights to informational value, especially in the area of data339. In re DoubleClick, 154 F. Supp. 2d at 525 (footnotes and citations omitted); seealso Weld v. CVS Pharmacy Inc., 10 Mass. L. Rptr. 217 (Mass. Super. 1999).340. See Cohen, supra note 321; see also Jessica Litman, InformationPrivacy/Information Property, 52 Stan. L. Rev. 1283 (2000).341. See Pamela Samuelson, Privacy as Intellectual Property, 52 Stan. L. Rev. 1125(2000).342. See id.
capital.343 While there may be no recognised legislativeintellectual property right in data, a contract can be used toregulate the way in which people use information that has beencollected to create contractual or privately ordered informationalproperty rights. The limit of a contract (besides some complexconstitutional issues) is that it is only enforceable against theparties to the contract and not the world at large. For instance, ifI buy a licence to use data that contains restrictions on my furthercopying, selling or exploiting the data, that licence will not bind astranger who copied the data.B. Contractual LicensingContract is also very important to the broader issue ofinformation licensing.344 In the information economyinformational products are usually licensed and not sold; thelicense is the product. In most instances you do not receive anownership right to anything but rather a right to use information.In real space, when I buy a book I do not obtain ownership of thecopyright owner’s right to reproduce the book, but I do gainownership of the physical thing called the book. Withinformational products, such as software games and digitalimages, you are usually only given a licence to use the informationfor specific purposes, and to this end, you must read the licenceclosely to determine your user rights. In essence, the contractuallicence determines “exploitation” and “user” rights in informationand in this way contract is used as a mechanism for definingdigital property.C. Formation of Contractual LicencesAn issue vitally important to this contractual definition ofdigital property is the way in which contractual licences areformed. In order to determine informational rights, it is343. See ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).344. See Gail E. Evans & Brian F. Fitzgerald, Information Transactions UnderUCC Article 2B: The Ascendancy Of Freedom of Contract in the Digital Millennium, 21U. New S. Wales L.J. 404 (1998), available at http:// www.law.unsw.edu.au/publications/journals/unswlj/ecommerce/evans.html;Robert W. Gomulkiewicz, The LicenseIs The Product: Comments on the Promise of Article 2B for Software and InformationLicensing, 13 Berkeley Tech. L.J. 891 (1998); David Nimmer et al., The Metamorphosisof Contract into Expand, 87 Cal. L. Rev. 17 (1999). Licenses are contracts that defineuser rights in relation to information products.
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ROGER WILLIAMS UNIVERSITYLAW REVIEW
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ROGER WILLIAMS UNIVERSITYSCHOOL OF
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Identification StatementThe Roger W
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contract exclusion or disclaimer of
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and other laws of countries in whic
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Symposium and writes on this issue
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Indeed, the quotation contains the
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suggestive of a bill designed merel
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United States ought to adopt in lig
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the Supreme Court to reiterate in F
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United States Supreme Court quoted
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copying of “a work protected unde
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shall be null and void.65 Member st
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determining the fate of database pr
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The compilation of a database requi
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management information, including c
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one congressional witness noted:
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that were made after the initial te
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preferred language of many business
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the sui generis right mainly serves
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the Paris Convention for the Protec
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directly or indirectly.159 In other
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of resources that qualifies that po
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wish to encourage private lawsuits,
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contract.”185 While section 1405(
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The Directive will inevitably drive
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the process through which digital p
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the United States or the trade and
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patent law is the utilitarian ethic
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a work to be publicly identified as
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the United States, the power of the
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Theory one proposes to reward the a
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of intellectual property rights mus
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only such as are original, and are
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emedies set forth in section 1406.T
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eproduced, though there be no ingen
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the same, or substantially the same
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with respect to “patents of inven
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Because, in part of the joint reaso
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even by the plaintiffs today.86The
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statute: the “Limited Times” re
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head of power. It is not clear whet
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elationship of power between the Co
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history dealing with either provisi
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the parameters of the propertizatio
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Page 102 and 103: gave incentive for people to expres
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Page 110 and 111: that a monopolist should not seek t
Page 112 and 113: motivating force.While antitrust or
Page 114 and 115: unjustifiable anti-competitive cond
Page 116 and 117: his refusal to sell or license his
Page 118 and 119: defense and exploitation of the cop
Page 120 and 121: the information age there have been
Page 122 and 123: In response to Intel’s argument t
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Page 134 and 135: for circumventing a technological p
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Page 148 and 149: important to know whether a contrac
Page 150 and 151: information rights and legislated c
Page 152 and 153: this value is difficult to apportio
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Page 156 and 157: the new environment.For example, th
Page 158 and 159: implemented. As this section will h
Page 160 and 161: ight. First sale is an important di
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Page 172 and 173: decrease innovation.30 On the other
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Page 178 and 179: Universal Music Group uses software
Page 180 and 181: Taking UCITA on the Road: WhatLesso
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Page 184 and 185: It is against this background that
Page 186 and 187: similarities as well as differences
Page 188 and 189: as well, such as the American Bar A
Page 190 and 191: American Law Institute refused to p
Page 192 and 193: enactment of the draft. This led to
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transactions involving goods other
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quite controversial.49 As the histo
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provisions of Article 2 (based in p
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form license of information.63 Alth
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principles articulated in several i
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to by industry groups, with the res
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powers going well beyond the UNIDRO
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Contracts deals with unfair terms i
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worth a thousand words. Picture a d
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types of provisions being sought by
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law is a complex one.125 Although s
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the intellectual property balance o
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Other Substantive IssuesThere are,
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law,153 and many of UCITA’s provi
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nature of law-making both domestica
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Transactions Act).
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acts of copyright infringement.7 Un
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these rights.I. ISP LIABILITY FOR T
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Cubby, the court in Stratton Oakmon
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liability for third-party content.5
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network and removed the edition of
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subscribers’ conversations.84 Fur
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holder.92 Contributory liability ap
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and Klemesrud on the counts of dire
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eport, the White Paper on Intellect
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imposed ISP liability both in insta
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any infringing material either upon
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provider liability, the European Co
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of a defamatory statement.While saf
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defamation.184 One case that illust
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material that appears questionable
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FBI’s Carnivore: Is the Governmen
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and the legal limits of government
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II. CONSTITUTIONAL ANALYSISA. Const
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application developed in Katz v. Un
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Amendment protections.50Substantial
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communicating over the Internet pos
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court will likely, as it has often
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unconstitutional.81 Although CALEA
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data attributable to the target sus
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FBI facility for subsequent examina
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EPCA Section 2518 provides that upo
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The FBI has stated that its use of
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provision,143 but judging from the
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