Vol 7 No 1 - Roger Williams University School of Law

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contract.”185 While section 1405(b) would preempt state law withrespect to rights that are equivalent to those protected under thenew act, that same section makes it clear that the law of contracts“shall not be deemed to provide equivalent rights for purposes ofthis subsection.”186 Additionally, section 1405(e) reiterates thatnothing in the proposed act “shall restrict the rights ofparties . . . to enter into licenses or any other contracts withrespect to making available or extracting collections ofinformation.”187Section 105(c) of H.R. 1858 contains a nearly identicalprovision, stating that nothing in the act “shall restrict the rightsof parties freely to enter into licenses or any other contracts withrespect to the use of information.” However, this provision ismade subject to section 106(b) of the bill, which states that aperson shall not be liable for a violation of the act if the personbenefiting from the protection afforded a database under the act“misuses” the protection.188 In determining whether a person hasmisused the protection, a court is to consider, among other factors(1) the extent to which the ability of persons to engage in thepermitted acts under this title has been frustrated by contractualarrangements or technological measures and (2) the extent towhich information contained in a database that is the sole sourceof the information contained therein is made available throughlicensing or sale on reasonable terms and conditions.189 Whilethis provision may not be precisely “comparable” to the EUDirective’s absolute nullification of contract provisions contrary tothe rights of lawful users of databases, it certainly comes closer tothe public policy served by that prohibition than does section 1405of H.R. 354. The upshot is that H.R. 354 may be disqualified as“comparable” to the protection specified by the EU Directiveprecisely because it gives database producers too muchcontractual freedom to vary the terms of the statutory protection.CONCLUSIONIn the short time since the Supreme Court decided Feist,electronic databases have become an integral part of many185. H.R. 354 § 1405(a), 106th Cong. (1999).186. Id. § 1405(b).187. Id. § 1405(e).188. H.R. 1858 §§ 105(c), 106(b), 106th Cong. (1999).189. Id. § 106(b)(1)-(2).
industries. As electronic databases are navigated more efficientlythan printed publications, ensuring incentives for the creation offuture databases is of growing importance to a sound industrialpolicy. Recent technological developments have eroded thenatural lead-time that database developers have heretoforeenjoyed.As we have seen, two distinct legislative responses to Feistcan be found in H.R. 354 and H.R. 1858. Whereas H.R. 354 wouldaccord a database producer rights that are analogous (but notnecessarily “comparable”) to those mandated by the EU DatabaseDirective, thus recreating a limited form of the “sweat of the brow”protection that Feist laid to rest, H.R. 1858 would in effect “refederalize”the holding of International News, at least as it appliesto databases in interstate and foreign commerce, and provideprotection against two specific types of data piracy.The general approach (though not necessarily theenforcement mechanism) of H.R. 1858 is superior to H.R. 354because it prohibits wholesale competitive duplication ofdatabases, while ensuring access to and transformative uses offactual compilations. H.R. 354, by contrast, would extendprotection beyond a database producer’s primary market torelated markets, and would define related markets sufficientlybroadly that a database producer could control a wide range ofnon-competitive uses of data and reserve those potential marketsfor itself.Reincarnations of H.R. 1858 and H.R. 354 are likely to surfaceduring the present congressional session. The passage of eitherbill will have a significant impact on intellectual property lawsand policies in both the United States and worldwide. If theUnited States is perceived to be following the European Union’slead, by according a comparable sui generis right to databasedevelopers, then one would expect similar systems to beimplemented worldwide.However, there is no domestic policy justification for theUnited States to follow the EU’s lead. The economic case forcreating a sui generis right to prevent extraction and reutilizationof unoriginal database contents has never been satisfactorilyexplained by the EU itself. The EU Database Directive franklyseems designed to favor European database producers at theexpense of their customers and non-EU competitors, and topressure the rest of the world to create comparable protection.
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 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 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
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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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