Vol 7 No 1 - Roger Williams University School of Law

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determining the fate of database protection on the global scale.II. THE CHANGING FACE OF THE DATABASE INDUSTRYA. Databases and Digital TechnologyDigital technology is radically changing the face of thedatabase industry. The number of files in electronic databaseshas increased from four billion in 1991 to eleven billion in 1997, astaggering 200+% increase.76 The number of searches of suchinformation grew comparably, roughly doubling during any fiveyearperiod during the past decade.77 Likewise, the source ofdatabase development has dramatically shifted. In the late 1970s,78% of all databases were produced by government, academic andother non-profit providers, while the commercial sector accountedfor the remaining 22%. By 1997, the percentages were exactlyreversed.78While the database industry has long been producingdatabases in the absence of sui generis protection, the digitalrevolution has both enhanced the utility of databases and exposedthe vulnerability of investments in their production. Althoughprinted databases, such as telephone directories and retailcatalogs, remain important in certain industries, digitizedmultimedia databases have far more utility than printedcompilations. Because electronic databases can be navigated moreefficiently than printed publications, they are of growingimportance to the database industry and have made the creationof exhaustive factual compilations practical.79 Internet searchengines allow users to engage in their own selection andarrangement of the contents of mega-databases into smaller,individually tailored databases.The limitation of copyright to the original selection andarrangement of a database was developed with printed databasesin mind. The selection and arrangement of data in a printeddatabase creates value to the user because a random collection of76. O’Neal, supra note 2, at 109.77. Id.78. Id.79. See Kirk Statement, supra note 3, at 2 (noting that of the approximately11,000 databases listed in the Gale Directory of Databases, almost all are in electronicform—5,950 are made available online, 3,000 are on CD-ROM, 1,000 on diskette, and700 on magnetic tape).
facts would be of little or no use.80 Today, database softwareperforms the tedious task of coordination and arrangement.Internet databases are generally arranged to maximize storagecapacity and only become arranged for human use upon a user’sindividual request.Free riding in the database industry has been facilitated bythe exponential increase in the speed at which data can betransmitted. In 1991, the year Feist was decided, it would havetaken the average modem, working 24 hours a day, 154 days tocopy an average sized database.81 With current modems and theadvent of DSL, the same database can be copied in 1.7 minutes.82Electronic databases on the Internet afford many advantages,such as access and ease of subsequent modifications; however,accessibility also facilitates data piracy. A closed network wouldallow for a higher level of security and easier detection ofunauthorized uses, but is more difficult and time-consuming andmay tend to discourage use.83 As internet applications becomemore widespread, consumers expect access to data over the web.Moreover, the mere ability to protect a database with anticopyingtechnology does not necessarily obviate the need for legalprotection. The fact that a landowner can erect a fence around hisproperty does not mean he should forfeit a cause of action fortrespassing. The question currently before U.S. legislators is whatkind of fences should be created and what kind of trespass claimsshould be allowed.B. Reasons For Providing Sui Generis Protection of DatabasesThere are several reasons for providing sui generis protectionfor databases. First, the collection and organization of datarequire a large up-front investment. Second, the accessibility ofinformation in the digital information age has made the wholesalecopying of large compilations a simple task. Third, there isconsiderable concern among U.S. companies that the lack ofprotection in Europe, in the absence of reciprocal protection in theUnited States, will put them at a distinct competitivedisadvantage.80. Id. at 3.81. Id. at 5.82. Id.83. Id.
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 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 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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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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