Vol 7 No 1 - Roger Williams University School of Law

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Symposium and writes on this issue in What the Future Holds:Policy Choices in the Global E-Marketplace. What greaterincentive can I give the reader to spend time with her article thanto say that Professor O’Rourke’s presentation held the Symposiumaudience in place even though it was the Friday afternoon closingpresentation in a long, full-day program?As experienced and as viewed in retrospect, the full daySymposium and half-day Roundtable programs were remarkablefor the ease in which academics and lawyer-scholars from verydifferent legal and cultural backgrounds found common purposeand genuine camaraderie, and an enjoyment in sharing that withRoger Williams University law students and faculty. As theorganizer and convener of the programs, I wish to express mygratitude to professional colleagues and personal friends whoaccepted my invitation to participate in the programs asmoderators and as speakers. Writing this introduction alsoprovides me a forum to express my gratitude for a personally quitespecial benefit and satisfaction, the privilege of meeting, andbecoming friends as well as professional colleagues, of a mostdistinguished group of scholars from abroad: Professor DoutourJosé de Oliveira Ascensão, Dean Brian Fitzgerald, Dr. ManualLopes Rocha and Dr. Antõnio de Macedo Vitorino.Finally, though not least, I speak for all who participated inthe Symposium and Roundtable in closing this introduction byexpressing gratitude to others who made the event andpublication of this Symposium Issue notable in the young life ofthis law school. We are especially grateful to the Luso-AmericanDevelopment Foundation and its President, Dr. Rui Chancerellede Machete for program and financial support, the Law Reviewand its members for their work in editing and publishing thepapers in this Symposium Issue, and Dr. Manuel Duarte deOliveira of the Luso-American Development Foundation for hisliaison assistance in Portugal. Most especially, I speak for all inrecognizing my colleague, and at time the Dean, Professor HarveyRishikof for his encouragement, unstinting support, and spiritedhospitality that made our distinguished guests’ visits to theUniversity and the School of Law so congenial and memorable.
Database Protection in the DigitalInformation AgeCharles R. McManis *It would be an atrocious doctrine to hold that dispatches,the result of the diligence and expenditure of one man,could with impunity be pilfered and published byanother . . . . The mere fact that a certain class ofinformation is open to all that seek it, is no answer to aclaim to a right of property in such information made by aperson who, at his own expense and by his own labor, hascollected it.1INTRODUCTIONAs industries in the global market increasingly come to relyon electronic compilations of data,2 calls for new, sui generis formsof legal protection for databases have grown apace. Yet, as thequotation above illustrates, the issue of data protection is notnew—nor is the world without precedent in determining how theissue of data protection ought to be resolved.*Professor of Law, Washington University in St. Louis; B.A., 1964, Birmingham-Southern College; M.A. (Philosophy); J.D., 1972, Duke University. The authorgratefully acknowledges the research assistance of Christopher R. Alder, J.D., 2001,Washington University in St. Louis, who also provided initial drafts of portions of thisarticle. The author is likewise indebted to Washington University law librarians, HylaBondareff and Katrina Stierholz, for their research assistance at several critical pointsin the preparation of this article. Finally, the author gratefully acknowledges theinsightful comments and suggestions of Justin Hughes, Visiting Professor of Law,UCLA School of Law, who graciously read and commented up an initial draft of thisarticle.1. Kiernan v. Manhattan Quotation Telegraph Co., 50 How. Pr. 194, 14 C.O.Bull. 1493 (N.Y. Sup. Ct. 1876).2. See Robert M. O’Neil, Campus Database Issues, 27 J.C. & U.L. 109 (2000).237
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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 18 and 19: Indeed, the quotation contains the
Page 20 and 21: suggestive of a bill designed merel
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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
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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
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the United States, the power of the
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Theory one proposes to reward the a
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of intellectual property rights mus
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only such as are original, and are
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emedies set forth in section 1406.T
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eproduced, though there be no ingen
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the same, or substantially the same
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with respect to “patents of inven
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Because, in part of the joint reaso
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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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