Vol 7 No 1 - Roger Williams University School of Law

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and other laws of countries in which users and customers arelocated rather than assuming that only the familiar law of acompany’s own jurisdiction governs its transactions in theInternet environment.Professor Brian Fitzgerald, Dean of Southern CrossUniversity School of Law and Justice in Lismore, Australia,authored and presented the article titled Digital Property: TheUltimate Boundary? Dean Fitzgerald is a leading scholar andauthority on Australian intellectual property and Internet law,and often participates in international dialogue as a speaker andauthor of articles published in international journals. Hispresentation and article weigh the role and limits of law intransforming information and information products into economicvalue, wealth and industries in the digital environment. DeanFitzgerald seeks to harmonize public and private interests ininformation, and to address the challenge of regulating in such away as to promote and secure a return to new investment withoutsacrifice of access to and use of knowledge by private individuals,researchers and other businesses. He brought to the Symposiumand this issue of the Law Review the perspective of a scholar froma nation that is a very significant but not a dominant producerand exporter of digital works.Charles R. McManis, Professor of law at WashingtonUniversity School of Law in St. Louis, is a leading scholar andpublic voice on copyright, contract and protection of computersoftware and other digital information products. Although he haspublished important works on United States law, he also hastaught and studied intellectual property law in Asia and madeinternational and comparative aspects of intellectual property lawa particular focus of his scholarship. Professor McManis’spresentation and article, Database Protection in the DigitalInformation Age, brings to his topic a depth of study and a graspof policy and legal issues that has made his previous writing onnational and international intellectual property law issuesessential reading for contemporary scholars and policy makers.Professor McManis’s particular concern in his article is with thetwo principal, and competing, proposals for United Statesdatabase protection legislation. He informs his readers with apreliminary examination of the European Community’s creation ofsui generis database extraction and reutilization rights as anadjunct to the very limited database protection available under
copyright law. Professor McManis then thoughtfully andinsightfully addresses whether and to what extent United Stateslegislation is required in order to satisfy the internationalreciprocity provision in the European Community DatabaseDirective, market considerations and legal considerations in amanner that equally speaks to scholars, lawyers and public policydecision makers.Professor Amelia H. Boss, the Charles Klein Professor of Lawand Government at Temple University, presented and has writtenTaking UCITA on the Road: What Lessons Have We Learned?.Professor Boss is a member of the Council of the American LawInstitute (ALI), chairs the Business Law Section of the AmericanBar Association and serves as a United States Delegate to UnitedNations Commission on International Trade Law (UNCITRAL) onelectronic commerce issues. She was an ALI member of theDrafting Committee for a Proposed Article 2B of the UniformCommercial Code (now the Uniform Computer InformationTransactions Act, or UCITA) and is an ALI member of theDrafting Committee to revise Articles 1, 2 and 2A of the UniformCommercial Code. It should be clear from this impressive, yetselective, review of Professor Boss’s experience that there is noperson better qualified to address the need for new contract lawrules, the approach and particulars of the UCITA, and howUCITA compares with other modern commercial contract lawstatutes. The dimensions in which she does so in her articleinclude contract law theory, choice between general andparticularistic statutory expression of rules, soundness of policychoices reflected in certain rules and suitability of the uniform lawfor export as a model for digital information product and servicestransactions legislation.Among scholars with whom I have had occasion to disagree onimportant information technology copyright and contract lawissues over the last half-dozen years, Professor Maureen AnneO’Rourke of Boston University School of Law is one for whom Ihave greatest regard. Her critical, creative, insightful andrigorous thought challenges others to likewise extend themselvesas participants in critical thinking and dialogue rather than adogmatic contest. Although a relatively new member of theacademic cadre, she is a recipient of Boston University’s prizedMetcalf Award for outstanding teaching and her writings arewidely regarded as “must” reading. Professor O’Rourke closed the
Page 3: ROGER WILLIAMS UNIVERSITYLAW REVIEW
Page 7 and 8: ROGER WILLIAMS UNIVERSITYSCHOOL OF
Page 9: Identification StatementThe Roger W
Page 12 and 13: contract exclusion or disclaimer of
Page 16 and 17: Symposium and writes on this issue
Page 18 and 19: Indeed, the quotation contains the
Page 20 and 21: suggestive of a bill designed merel
Page 22 and 23: United States ought to adopt in lig
Page 24 and 25: the Supreme Court to reiterate in F
Page 26 and 27: United States Supreme Court quoted
Page 28 and 29: copying of “a work protected unde
Page 30 and 31: shall be null and void.65 Member st
Page 32 and 33: determining the fate of database pr
Page 34 and 35: The compilation of a database requi
Page 36 and 37: management information, including c
Page 38 and 39: one congressional witness noted:
Page 40 and 41: that were made after the initial te
Page 42 and 43: preferred language of many business
Page 44 and 45: the sui generis right mainly serves
Page 46 and 47: the Paris Convention for the Protec
Page 48 and 49: directly or indirectly.159 In other
Page 50 and 51: of resources that qualifies that po
Page 52 and 53: wish to encourage private lawsuits,
Page 54 and 55: contract.”185 While section 1405(
Page 56 and 57: The Directive will inevitably drive
Page 58 and 59: the process through which digital p
Page 60 and 61: the United States or the trade and
Page 62 and 63: 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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the legislative power contained in
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negative pregnant that suggests tha
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scope of the Commerce Clause in the
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gave incentive for people to expres
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ejected this purported distinction
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talk, communicate or consume inform
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frameworks that will allow diversit
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that a monopolist should not seek t
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motivating force.While antitrust or
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unjustifiable anti-competitive cond
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his refusal to sell or license his
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defense and exploitation of the cop
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the information age there have been
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In response to Intel’s argument t
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Court of First Instance in concludi
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to oust competitors, there was noth
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as a digital property owner, which
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anti-competitive use of monopoly po
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certain circumstances, exempted fro
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for circumventing a technological p
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DMCA creates an exclusive right in
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circumventing a TPM in order to loo
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“staple article of commerce” do
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commerce.”320 Is innovation stifl
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anner advertisement company DoubleC
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the subject. Demographic informatio
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important to know whether a contrac
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information rights and legislated c
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this value is difficult to apportio
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Association (WIPO) will administer
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the new environment.For example, th
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implemented. As this section will h
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ight. First sale is an important di
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sign a hard copy contract containin
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to digital property. As well, free
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desirable to sellers and buyers ali
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ural and remote areas, where access
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as “high-speed telecommunications
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decrease innovation.30 On the other
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could be called a trespass, since a
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inform what permissible access and
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Universal Music Group uses software
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Taking UCITA on the Road: WhatLesso
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the debate has centered on whether
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It is against this background that
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similarities as well as differences
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as well, such as the American Bar A
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American Law Institute refused to p
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enactment of the draft. This led to
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such application.35 To the extent,
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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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