Re: Lawmakers to Weigh Database Protection Bill

["Joseph J. Esposito" <espositoj@worldnet.att.net>]

----- 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.

> 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.

> It seems to me that the sweat is a far lesser skill than the creative
> intellect.

JE:  Absolutely agree.

> The sweater is, after all, stealing other work himself. He is
> nothing more than a plagiarist.

JE:  Not so.  Ever try to assemble a simple directory?

  I see no particular reason to reward that
> kind of sweat with rights equal to copyright.

JE:  Agree.

> 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.

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?

> 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.

> 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.

> Diane Cabell
> http://cyber.law.harvard.edu