Re: Lawmakers to Weigh Database Protection Bill

[Diane Cabell <dcabell@law.harvard.edu>]

I strongly disagree that people have nothing to fear from this
legislation.  If you create an alphabetical list of residences, and I
create the same list independently, you are still going to make a claim
against me under your sweat right.  All you have to do is file a
complaint, the burden will be on me to show that I didn't copy it from you
(to prove a negative which is not an easy task).  Most folks can't afford
criminal justice, much less pay for a sophisticated copyright defense.

It seems to me that the sweat is a far lesser skill than the creative
intellect.  The sweater is, after all, stealing other work himself. He is
nothing more than a plagiarist.  I see no particular reason to reward that
kind of sweat with rights equal to copyright.  The "first to market"
advantage may not be as much as the sweater would wish, but I don't see
any logical or social argument why it should be so when it will become
such a pitfall for those trying to use the data.  And it is becoming
incredibly easy to amass such databases using computer technology, the
even less sweat is required.

Expensively produced databases can just as easily be protected by the
terms of subscription contracts that prevent reproduction outside some
norms.  Of course, the risk there is that those contracts would eliminate
the user's fair use rights entirely.

Diane Cabell
Clinical Program Director
Berkman Center for Internet & Society
Harvard Law School
http://cyber.law.harvard.edu

Joseph J. Esposito wrote:

> > It is another sheer grab of material that can't be copyrighted-Even
> > if we don't own it, we can make you use it the way we want?
>
> I don't think so.  Nothing would stop someone from independently coming up
> with the identical database.  What would be prohibited would be copying
> the database that someone else had aggregated.  This is not a copyright
> issue per se.  What it is is an attempt to codify the moral argument that
> the "sweat of the brow" counts for something.  People who are concerned
> about having access to public domain information have nothing to fear from
> this legislation.
>
> Joe Esposito