Vol 7 No 1 - Roger Williams University School of Law

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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).
communication while it is in electronic storage in such a system.48Database developers have also sought protection under theLanham Act. Claims for false designation of origin under section43(a), passing off, and trademark dilution under section 43(c) arepotential causes of action for database developers againstpirates.49 When the source and reliability of data is significant tothe intended users, these Lanham Act claims may proveefficacious.With the enactment of the Digital Millennium Copyright Act(DMCA) of 1999,50 yet another form of protection becameavailable to database producers. The DMCA implements theWorld Intellectual Property Organization Copyright Treaty51 byprohibiting circumvention of copyright protection systems andprotecting the integrity of copyright management informationsystems, including terms and conditions for use of a work.52 Theanti-circumvention provision of the DMCA prohibits (1) thecircumvention of technological measures that effectively controlaccess to or a work protected under U.S. copyright law and (2) themanufacture of, importation of, offering to the public of, providingof, or trafficking in any technology, product, service, device,component, or part thereof, that is primarily designed or producedfor the purpose of circumventing either anti-access or anti-copyingtechnological measures.53 The copyright managementinformation provision prohibits the unauthorized removal oralteration of copyright management information or providing,distributing, or importing for distribution, false copyrightmanagement information, which is defined to include any termsand conditions for use of the work.54The DMCA explicitly limits its prohibitions to circumventionof technological measures that effectively control access to or48. Id. § 2701(a). An “electronic communications service” is defined as “anyservice which provides to the users thereof the ability to send or receive wire orelectronic communications,” id. § 2510(15), while the term “electronic storage” isdefined as “any temporary, intermediate storage of a wire or electronic communicationincidental to the electronic transfer thereof . . . .” Id. § 2510(17).49. 15 U.S.C. § 1125(a) (1994).50. 17 U.S.C. § 1201 (Supp. IV 1998).51. The World Intellectual Property Organization Copyright Treaty, Apr. 12,1997, S. Treaty Doc. No. 105-17 (1997).52. 17 U.S.C. §§ 1201, 1202 (Supp. IV 1998).53. Id. § 1201.54. Id. § 1202.
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 14 and 15: and other laws of countries in whic
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 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
Page 64 and 65: a work to be publicly identified as
Page 66 and 67: the United States, the power of the
Page 68 and 69: Theory one proposes to reward the a
Page 70 and 71: of intellectual property rights mus
Page 72 and 73: only such as are original, and are
Page 74 and 75: emedies set forth in section 1406.T
Page 76 and 77:
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
Page 84 and 85:
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
Page 136 and 137:
DMCA creates an exclusive right in
Page 138 and 139:
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
Page 282 and 283:
provision,143 but judging from the
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