Vol 7 No 1 - Roger Williams University School of Law

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wish to encourage private lawsuits, and believe that marketincumbents, particularly sole-source providers, will think twicebefore complaining about data piracy to one of the country’s twofederal antitrust enforcement agencies.Although Title I would be enforceable only through the FTCproceedings, the theory of liability is akin to the common law tortof misappropriation of “hot news.”179 Value-added andtransformative uses are permitted, as H.R. 1858 considers a copyto be an infringement only if it is “substantially the same” as theoriginal,180 and prohibits the public sale or distribution of aduplicate database only where it is distributed in competition withthe original database.181Title II of H.R. 1858 would create a separate prohibitionagainst the “misappropriation” of real-time market information.Section 201 states that any person who “obtains directly orindirectly from a market information processor real-time marketinformation,” and “directly or indirectly sells, distributes,redistributes, or otherwise disseminates such information withoutthe authorization of such market information processor, shall beliable to that market information processor . . . .”182 In contrast toTitle I, the prohibition of Title II is not limited to the wholesaleduplications of real-time market information, nor to the sale ordistribution of the information in competition with theinformation processor. Moreover, this prohibition would beprivately enforceable through a civil action for monetary andinjunctive relief.183While the protection that H.R. 1858 would provide couldhardly be called comparable to that specified in H.R. 354 ormandated by the EU Database Directive, this is not to suggestthat enactment of H.R. 1858, rather than H.R. 354, would leaveU.S. database producers wholly unprotected in Europe. To themisappropriation suits involving databases will generally be preempted under section105(b) of the proposed act. Id. at 10 n.68. However, section 105(b) merely states that“no State law that prohibits or that otherwise regulates conduct that is subject to theprohibitions specified in section 102 shall be effective to the extent that such State lawis inconsistent with section 102.” H.R. 1858 § 105(b), 106th Cong. (1999) (emphasisadded).179. See supra notes 34-45 and accompanying text.180. H.R. 1858 §§ 101(2), 102.181. Id. § 102.182. Id. § 201 (proposing to amend § 11A of the Securities Exchange Act of 1904).183. Id.
contrary, U.S. database producers would arguably be entitled toprecisely the same protection in Europe that they would be (and infact currently are) entitled to in the United States. This is sobecause Article 10bis of the Paris Convention states that membercountries of the Paris Union are bound to assure nationals of suchcountries effective protection against unfair competition, and goeson to state that any act of competition contrary to honest practicesin industrial or commercial matters constitutes an act of unfaircompetition.184 Given that the EU has now mandated sui generisprotection for database contents even against non-competitiveextractions and re-utilizations, European countries can hardlyargue that wholesale duplication of database contents in order tocompete with the database producer is not an act of unfaircompetition within the meaning of Article 10bis of the ParisConvention.Thus, the argument that enactment of sui generis protectionof the sort spelled out in H.R. 354 is necessary (or sufficient) forU.S. database producers to obtain protection for their databases inthe EU is suspect. As we have also seen, it is not clear thatpassage of H.R. 354 will be deemed sufficiently comparable toqualify U.S. database producers for the (arguably over-broad) suigeneris protection now available in Europe. Indeed, one featurethat H.R. 354 and H.R. 1858 have in common distinguishes bothbills from the type of protection mandated by the EU Directive,and further undermines the argument that either bill wouldprovide comparable protection. This feature concerns theenforceability of contracts that put additional restrictions on theuse of database contents.3. Contractual CircumventionWhile the two U.S. bills provide two different approaches tothe protection of database contents, both bills make it clear thatnothing in the legislation would preempt contracts that placeadditional restrictions on the use of a database. H.R. 354 isparticularly adamant in this regard. Section 1405(a) of H.R. 354states that nothing in this bill “shall affect rights . . . orobligations relating to information, including . . . the law of184. Paris Convention for the Protection of Industrial Property, Mar. 20, 1883, 13U.S.T. 2, 828 U.N.T.S. 107, as last revised at the Stockholm Revision Conference, July14, 1967, 21 U.S.T. 1538, 828 U.N.T.S. 303, art. 10bis.
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 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 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
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Page 98 and 99: negative pregnant that suggests tha
Page 100 and 101: 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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