Vol 7 No 1 - Roger Williams University School of Law

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of resources that qualifies that portion of the collection forprotection,”168 and (2) that “the person claiming protection bearsthe burden of proving “that the date on which the portion of thecollection that was made available or extracted was firstoffered . . . in commerce . . . was no more than fifteen years priorto the time when it was made available or extracted by thedefendant.”169 H.R. 354 also states that “[n]o monetary reliefshall be available . . . [if the defendant] could not reasonablydetermine whether the date on which the portion of the collectionthat was made available or extracted was first offered incommerce” was more than 15 years prior to the violation.170Where “a collection of information into which all or a substantialpart of a government collection of information isincorporated, . . . no monetary relief shall be available for aviolation . . . unless a statement appear[s] . . . in a manner andlocation so as to give reasonable notice, identifying thegovernment collection and the government entity from which itwas obtained.”171In short, whereas the EU Database Directive appears tomandate dynamic (i.e., continuing) protection for an entiredatabase that is the subject of cumulatively substantial updating,H.R. 354 would protect only those substantial portions of adatabase that can be shown to have been offered in commercewithin the last fifteen years, and would deny monetary reliefwhere the defendant could not reasonably distinguish old and newdata, or in the case of collections incorporating informationcollected by the government, was not given reasonable notificationof the government source. Here, too, the difference in the scope ofprotection mandated by the EU Directive and that provided forunder H.R. 354 raises the question whether the European Councilwould consider the two to be comparable.2. H.R. 1858In contrast to both H.R. 354 and the EU Database Directive,H.R. 1858 is a much more narrowly tailored bill, which would (1)prevent wholesale competitive duplication of databases and (2)168. Id.169. Id. § 1409(d).170. H.R. 354 § 1408(a), 106th Cong. (1999).171. Id. § 1408(b).
prohibit misappropriation of real-time market information.172Title I of H.R. 1858 would make it a violation to sell or distributeto the public a database that is a duplicate of another database,when the duplicate is sold or distributed in competition with theoriginal database.173 The Federal Trade Commission (FTC) isvested with specific jurisdiction, under section 5 of the FederalTrade Commission Act,174 to prevent violations of the proposedact,175 but the bill does not expressly create a private right ofaction to enforce violations of section 102.This limited enforcement mechanism is H.R. 1858’s mostcontroversial feature. While the Federal Trade Commissionclaims to have experience in formulating policy and remedies inthis field176 and has agreed that the threat of private actions couldbe used by market incumbents to threaten potential entrants,thus potentially raising difficult issues for courts called on tointerpret the misuse defense contained in section 106(b) of thebill,177 the FTC itself has expressed concern about theenforcement feature of the bill, particularly if the FTC is the solestatutory enforcer.178 Apparently, the drafters of H.R. 1858 do not172. H.R. 1858 §§ 102, 201, 106th Cong. (1999).173. Id. § 102(1), (2).174. 15 U.S.C. § 45 (1997).175. Id. § 107(c). A recent FTC consent agreement and order suggests that the FTCmay already have jurisdiction under section 5 to prevent this form of unfaircompetition. See Stipulated Consent Agreement and Final Order, FTC v.ReverseAuction.com, Inc. (DDC 2000) (stating that under the threat of FTC action,ReverseAuction entered into a consent decree for violating eBay’s “user agreement,”because ReverseAuction, an upstart competitor in the online auction market, copiedeBay’s customer database in order to solicit new customers), athttp://www.ftc.gov/os/2000/01/reverseconsent.htm (last visited Dec. 27, 2001).176. See Consumer and Investor Access to Information Act of 1999: Hearing on H.R.1858 Before the Subcomm. on Telecommunications, Trade and Consumer Protection,Comm. on Commerce, 106th Cong. (1999) (prepared statement of the Federal TradeCommission) [hereinafter FTC Prepared Statement], available athttp://www.ftc.gov/opp/hr09881.htm. In their prepared statement the FTC cites theHearings on Global and Innovation-Based Competition, and three of its recentdecisions, In re Softsearch Holdings, Inc., 5 Trade Reg. Rep. (CCH) 24,171 (F.T.C.July 28, 1997 (consent decree); In re Automatic Data Processing, Inc., 5 Trade Reg.Rep. (CCH) 24,006 (F.T.C. Mar. 27, 1996) (consent decree); In re Provident Cos., Inc.,No. 991-0101, 64 Fed. Reg. 27,991 (F.T.C. May 24, 1999) (proposed consent decree,subject to public comment), in which the FTC considered the potentiallyanticompetitive effects of the increased market power that can result fromconsolidation among database owners and vendors. Id.177. FTC Prepared Statement, supra note 176, at 10; see also infra notes 188-89and accompanying text.178. Id. In a footnote, the FTC states its understanding that state common law
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
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Page 40 and 41: that were made after the initial te
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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
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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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