Vol 7 No 1 - Roger Williams University School of Law

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management information, including conditions for use of thework.93The scientific research community claims that sui generisdatabase legislation of the sort mandated by the EU DatabaseDirective and embodied in legislative predecessors of H.R. 354 willincrease costs for future research projects.94 Scientific researchersclaim that implementation of such legislation will make it moredifficult and costly to access data concerning a wide range of topicssuch as weather statistics and human genome data.95 Some datais so expensive that with sui generis database protection in effect,it would be cost-prohibitive to gather a large collection of facts.96One particularly striking example of the harm that can resultfrom a grant of property rights in data can be found in theprivatization of data from the Landsat series of remote sensingsatellites.97 Following privatization, the prices of Landsat dataincreased from approximately $400 to $4,400 per image,effectively putting them out of reach of most academics andindependent researchers.98More importantly, as one congressional witness noted: “To agreat degree, the value of technology is cumulative. We cannotmake progress without building freely on the data and results ofthe past.”99 Likewise, in testimony before the House ofRepresentatives Subcommittee on Courts and IntellectualProperty, a spokesman for several large scientific organizationsstated that:Data are the building blocks of knowledge and the seedsof discovery. They challenge us to develop new concepts,theories, and models to make sense of the patterns we see93. See supra notes 50-55 and accompanying text.94. See Andrew Lawler, Database Access Fight Heats Up, Science, Nov. 15, 1996,at 1074.95. Id.96. See, e.g., Anne Linn, History of Database Protection: Legal Issues of Concern tothe Scientific Community (Mar. 3, 2000) (“a single synthetic aperture radar scene costs$1600.”), at http://www.codata.org/codata/data_access/linn.html (last visited Apr. 11,2001).97. See Michael J. Bastian, Protection of “Noncreative” Databases: Harmonizationof United States, Foreign and International Law, 22 B.C. Int’l & Comp. L. Rev. 425, 431(1999).98. Id. at 431-32.99. Hearing 2652, supra note 88 (statement of Tim D. Casey on behalf of theInformation Technology Association of America), available athttp://www.house.gov/judiciary/41149.htm.
in them. They provide the quantitative basis for testingand confirming theories and for translating newdiscoveries into useful applications for the benefit ofsociety. They also are the foundation of sensible publicpolicy in our democracy. The assembled record ofscientific data and resulting information is both a historyof events in the natural world and a record of humanaccomplishment.100When assessing the value of sui generis legislation and deciding towhat degree exclusionary rights should be granted, lawmakersmust balance the social benefits of databases that would not beavailable in the absence of protection against the loss ofinnovative and transformative uses of databases that might notoccur because of the existence of database protection. Thescientific community and research and development industriesfrequently conduct research by applying novel theories of analysisto existing data in order to highlight certain trends. By reviewinglarger databases and carefully organizing selected data, aresearcher may discover trends lost in the larger context of theoriginal database. By further refining the original data, secondarydatabases thus add value to the original.101Some sectors of the information technology industry itself arealso disturbed by the prospect of sui generis protection fordatabases. They claim that the imposition of increased businesscosts will drive the entire information technology industryoffshore and heighten the dangers of incipient monopoly.102 As100. Collections of Information Antipiracy Act: Hearing on H.R. 354 before theSubcomm. on Courts and Intellectual Prop. of the House Comm. on the Judiciary, 106thCong. (1999) (statement of Joshua Lederberg, Nobel laureate, on behalf of NAS, NAE,IOM and the American Association for the Advancement of Science), available athttp://www.house.gov/judiciary/106-lede.htm.101. National Research Council, Preserving Scientific Data on Our PhysicalUniverse 16 (1995):In all areas of research, the collection of data sets is not an end in itself, butrather a means to an end, the first step in the creation of new information,knowledge, and understanding. As part of that process, the originaldatabases are continually refined and recombined to create new databasesand new insights. Typically, each level of processing adds value to an original(raw) data set by summarizing the original product, synthesizing a newproduct, or providing an interpretation of the original data.Id.102. Hearing 2652, supra note 88 (statement of Tim D. Casey on behalf of theInformation Technology Association Of America), available at
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
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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 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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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
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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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