Vol 7 No 1 - Roger Williams University School of Law

United States Supreme Court quoted with seeming approval arespected commentator’s observation that protection of facts andideas “may in certain circumstances be available under a theory ofunfair competition.”41 More recently, in National BasketballAssociation v. Motorola, Inc.,42 the Court of Appeals for the SecondCircuit ruled that although sports scores were mere facts, thuslacking sufficient originality to qualify for federal copyrightprotection, they might nevertheless be protected againstmisappropriation as “hot news” despite their lack of originality.43Significantly, however, the court went on to hold that “hot news”misappropriation claims would survive the federal preemptionprovisions of U.S. copyright law only when the plaintiff and thedefendant are in direct competition and the appropriation, if notprohibited, would threaten the very existence of the product orservice provided by the plaintiff.44 Because this had not beenshown, the court ordered the NBA’s claim for misappropriationdismissed.45Database owners have also sought to avail themselves ofvarious forms of federal and state legislative protection. Forexample, the Electronic Communications Privacy Act46 protectselectronic communications from interception and provides civilremedies and criminal penalties for violations of the Act.47 TheAct also prohibits intentionally accessing without authorization afacility through which an electronic communication service isprovided and thereby obtaining access to an electronicdid not deal in commodity futures contracts and had no plans to do so).41. Feist, 499 U.S. at 354 (quoting Melville B. Nimmer & David Nimmer, Nimmeron Copyright § 3.04, at 3-23 (footnote omitted)).42. 105 F.3d 841 (2d Cir. 1997).43. Id. at 852-53; but see Alcatel USA, Inc. v. DGI Technologies, Inc., 166 F.3d772, 786-89 (5th Cir. 1999) (finding federal preemption).44. Nat’l Basketball Ass’n, 105 F.3d at 853.44. Nat’l Basketball Ass’n, 105 F.3d at 853.45. Id. at 853-54.46. 18 U.S.C. §§ 2510-22, 2701-11 (1994).47. An “electronic communication” is defined as “any transfer of signs, signals,writing, images, sounds, data, or intelligence of any nature transmitted in whole or inpart by a wire, radio, electromagnetic, photoelectronic or photooptical system thataffects interstate or foreign commerce . . . .” 18 U.S.C. § 2510(12).47. An “electronic communication” is defined as “any transfer of signs, signals,writing, images, sounds, data, or intelligence of any nature transmitted in whole or inpart by a wire, radio, electromagnetic, photoelectronic or photooptical system thataffects interstate or foreign commerce . . . .” 18 U.S.C. § 2510(12).