Re: Lawmakers to Weigh Database Protection Bill

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

Joseph J. Esposito wrote:

> ----- Original Message ----- 
> From: "Diane Cabell" <dcabell@law.harvard.edu>
> Sent: Tuesday, September 09, 2003 3:52 PM
>
> > 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.
> JE:  Absolutely not.  The alphabetical list is not copyrighted.
Did I misunderstand?  Does the proposed legislation specifically exclude
alphabetized databases from protection?

> > 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.
> JE:  Litigation is a burden all around.  I have been on both sides
> numerous times.
Ah, but it used to be that the complaining party had to prove the case in
court first before the defendant had to change her ways.  Under the DMCA
that is no longer the case.  A simple and inexpensive letter of complaint
addressed to an ISP will do the trick.

> JE:  If that is the case, why do people want to copy the "sweated" database
> instead of developing another one based on the same information?
Some sweat is involved.  There is market value for it.  But not "life 
plus 70 years and don't you dare try to extract more than I want you to 
copy, as I shall decide for myself."

> > Expensively produced databases can just as easily be protected by the
> > terms of subscription contracts that prevent reproduction outside some
> > norms.
> JE:  Not under current law.
The 7th Circuit would disagree.  ProCD, Inc. v. Zeidenberg, 86 F.3d 1447.

> > Of course, the risk there is that those contracts would eliminate
> > the user's fair use rights entirely.
> JE:  Since there is no copyright, fair use does not apply.  You see, this
> really is a law whose practical effect is that more databases will be
> aggregated because there will be a financial incentive to do so.
If the rights are sui generis and give database collectors the privileges
of a copyright owner without calling them copyrights so that the
associated copyright defenses do not accompany the new privileges, then
the proposed legislation seems doubly offensive to the public interest,
imho.

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