Vol 7 No 1 - Roger Williams University School of Law

More documents

Recommendations

Info

The compilation of a database requires a substantialinvestment. Producers of printed databases at one time enjoyednatural “lead-time” with which to exploit their product, as copyinga large printed compilation was time consuming. Today, thewholesale copying of an electronic database can be completed inseconds with 100% accuracy. The concept of providing artificial“lead-time” to minimize harm to a database developer’s market isreflected in the state common law “hot news” misappropriationdoctrine.84 Providing a limited term of such artificial leadtimeallows database developers to recoup their investment of researchand development costs.85 If free riders can immediately andperfectly copy the database, the original developer will be deprivedof the opportunity to develop its market niche.Because under current copyright law databases are protectedonly if and to the extent that they contain material selected orarranged in an organized manner, massive databases intended tobe comprehensive may fall short of the minimum level oforiginality required by Feist. Moreover, computer searchabledatabases are not organized in any humanly understandablemanner until there is a request from a specific user. Even if theorganization of a comprehensive database does present a modicumof creativity, the resulting “thin” copyright protection may beabrogated by the merger doctrine.86 Those works surviving themerger doctrine will be subject to a fair use privilege that isgenerally thought to be far broader when factual compilations,rather than highly creative works, are involved.87Economists argue that databases present a significantpotential for a free rider problem.88 For example, the American84. For a discussion of the origins of this doctrine, see supra notes 34-40 andaccompanying text.85. See generally J. H. Reichman & Pamela Samuelson, Intellectual PropertyRights in Data?, 50 Vand. L. Rev. 51, 145-46 (1997).86. See Morrissey v. Proctor & Gamble Co., 379 F.2d 675, 678-79 (1st Cir. 1967)(stating that when there is only a limited number of ways to express an idea, courtswill find that the idea has merged with the expression and thus not copyrightable).Highly factual or functional expression, such as recipes, parts lists, identificationnumbers, and the like, even if capable of being expressed in more than one way, areparticularly vulnerable to application of the merger doctrine.87. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984).88. See, e.g., Collections of Information Antipiracy Act: Hearing on H.R. 2652Before the Subcomm. on Courts and Intellectual Prop. of the House Comm. on theJudiciary, 105th Cong. (1998) [hereinafter Hearing 2652] (statement of Robert E. Aber,on behalf of The NASDAQ Stock Market, Inc.), available at
Medical Association (AMA) licenses many of its databasesinternationally.89 If the EU reciprocity provision is enforced inthe absence of U.S. legislation, the AMA fears it may have littlerecourse for the widespread appropriation of its efforts inEurope.90 “Adopting database protection legislation in the UnitedStates could be a step toward providing the necessary ‘reciprocity’in order to protect U.S. databases in the EU.”91C. The Dangers of Too Much ProtectionAs compelling as these reasons may be for providing some sortof sui generis protection for databases, there are equal dangers inproviding too much protection. Recognizing the market effects ofintellectual property legislation is essential to the maintenance ofa sound industrial policy. The combination of sui generis databaseprotection, copyright law, unfair competition law, contract law andencryption measures may overprotect databases and thus allowdatabase developers to dominate markets and extract monopolyprofits.Opponents of sui generis protection for databases may wellargue that no further economic incentive is needed in the UnitedStates, as its database industry is not only thriving, butdominating the global market place under current U.S. law.Because copyright protection requires only a modicum ofcreativity in selection and arrangement, databases could probablybe organized sufficiently to qualify for at least “thin” copyrightprotection–though not for protection against wholesale duplicationof the data itself. As we have seen, database developers can alsorely on the contractual self-help measures of the sort authorizedby UCITA, which validates and enforces click-throughagreements.92 Also available to database developers are thetechnological self-help measures protected by the DMCA, whichprohibits both the circumvention of technological protection forcopyrighted works and the deletion or alteration of any copyrighthttp://www.house.gov/judiciary/41143.htm.89. Id. (statement of Richard F. Corlin, M.D., on behalf of the AMA), available athttp://www.house.gov/judiciary/41145.htm.90. For a less alarmist view of the availability of protection for U.S. databases inEurope, see infra note 184 and accompanying text.91. See Hearing 2652, supra note 88 (statement of Richard F. Corlin, M.D., onbehalf of the AMA), available at http://www.house.gov/judiciary/41145.htm.92. See supra notes 56-57 and accompanying text.
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 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 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
Page 78 and 79: the same, or substantially the same
Page 80 and 81: with respect to “patents of inven
Page 82 and 83: Because, in part of the joint reaso
Page 84 and 85:
even by the plaintiffs today.86The
Page 86 and 87:
statute: the “Limited Times” re
Page 88 and 89:
head of power. It is not clear whet
Page 90 and 91:
elationship of power between the Co
Page 92 and 93:
history dealing with either provisi
Page 94 and 95:
the parameters of the propertizatio
Page 96 and 97:
the legislative power contained in
Page 98 and 99:
negative pregnant that suggests tha
Page 100 and 101:
scope of the Commerce Clause in the
Page 102 and 103:
gave incentive for people to expres
Page 104 and 105:
ejected this purported distinction
Page 106 and 107:
talk, communicate or consume inform
Page 108 and 109:
frameworks that will allow diversit
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
Page 124 and 125:
Court of First Instance in concludi
Page 126 and 127:
to oust competitors, there was noth
Page 128 and 129:
as a digital property owner, which
Page 130 and 131:
anti-competitive use of monopoly po
Page 132 and 133:
certain circumstances, exempted fro
Page 134 and 135:
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
Page 140 and 141:
“staple article of commerce” do
Page 142 and 143:
commerce.”320 Is innovation stifl
Page 144 and 145:
anner advertisement company DoubleC
Page 146 and 147:
the subject. Demographic informatio
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
Page 154 and 155:
Association (WIPO) will administer
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
Page 162 and 163:
sign a hard copy contract containin
Page 164 and 165:
to digital property. As well, free
Page 166 and 167:
desirable to sellers and buyers ali
Page 168 and 169:
ural and remote areas, where access
Page 170 and 171:
as “high-speed telecommunications
Page 172 and 173:
decrease innovation.30 On the other
Page 174 and 175:
could be called a trespass, since a
Page 176 and 177:
inform what permissible access and
Page 178 and 179:
Universal Music Group uses software
Page 180 and 181:
Taking UCITA on the Road: WhatLesso
Page 182 and 183:
the debate has centered on whether
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
Page 194 and 195:
such application.35 To the extent,
Page 196 and 197:
transactions involving goods other
Page 198 and 199:
quite controversial.49 As the histo
Page 200 and 201:
provisions of Article 2 (based in p
Page 202 and 203:
form license of information.63 Alth
Page 204 and 205:
principles articulated in several i
Page 206 and 207:
to by industry groups, with the res
Page 208 and 209:
powers going well beyond the UNIDRO
Page 210 and 211:
Contracts deals with unfair terms i
Page 212 and 213:
worth a thousand words. Picture a d
Page 214 and 215:
types of provisions being sought by
Page 216 and 217:
law is a complex one.125 Although s
Page 218 and 219:
the intellectual property balance o
Page 220 and 221:
Other Substantive IssuesThere are,
Page 222 and 223:
law,153 and many of UCITA’s provi
Page 224 and 225:
nature of law-making both domestica
Page 226 and 227:
Transactions Act).
Page 228 and 229:
acts of copyright infringement.7 Un
Page 230 and 231:
these rights.I. ISP LIABILITY FOR T
Page 232 and 233:
Cubby, the court in Stratton Oakmon
Page 234 and 235:
liability for third-party content.5
Page 236 and 237:
network and removed the edition of
Page 238 and 239:
subscribers’ conversations.84 Fur
Page 240 and 241:
holder.92 Contributory liability ap
Page 242 and 243:
and Klemesrud on the counts of dire
Page 244 and 245:
eport, the White Paper on Intellect
Page 246 and 247:
imposed ISP liability both in insta
Page 248 and 249:
any infringing material either upon
Page 250 and 251:
provider liability, the European Co
Page 252 and 253:
of a defamatory statement.While saf
Page 254 and 255:
defamation.184 One case that illust
Page 256 and 257:
material that appears questionable
Page 258 and 259:
FBI’s Carnivore: Is the Governmen
Page 260 and 261:
and the legal limits of government
Page 262 and 263:
II. CONSTITUTIONAL ANALYSISA. Const
Page 264 and 265:
application developed in Katz v. Un
Page 266 and 267:
Amendment protections.50Substantial
Page 268 and 269:
communicating over the Internet pos
Page 270 and 271:
court will likely, as it has often
Page 272 and 273:
unconstitutional.81 Although CALEA
Page 274 and 275:
data attributable to the target sus
Page 276 and 277:
FBI facility for subsequent examina
Page 278 and 279:
EPCA Section 2518 provides that upo
Page 280 and 281:
The FBI has stated that its use of
Page 282 and 283:
provision,143 but judging from the
show all

Vol 7 No 1 - Roger Williams University School of Law

Create successful ePaper yourself

Delete template?

Save as template?