Re: Analysis of Database Legislation

From: Vance R. Koven <vrkoven[_at_]>
Date: Tue, 17 Sep 1996 09:02:33 -0500

Prof. Jaszi's "analysis" should be taken for the polemic it is rather than anything like the sort of analysis one would expect from a disinterested scholar.

While I haven't read the proposed legislation, and can easily see how some provisions if accurately depicted by Prof. Jaszi could require modification (for example, the term of protection should probably be something like 5-10 years, or even less for dynamic databases, and a compiler should be forced to choose whether to go for database or copyright protection), the logical deficiencies in the "analysis" presented demand some rebuttal on their face:

  1. The statement that Feist was a constitutional case is debatable.
  2. The fact that the Moorhead bill uses Commerce Clause legislative authority means, first, that limitations on that authority apply, such as germaneness to the subject area (not a big limitation, to be sure, but from time to time the Supreme Court allows itself to be persuaded that some activity or another isn't close enough to interstate and foreign commerce to warrant application of legislation); second, that laws like the antitrust laws apply, so that a database owner couldn't use its protections to stifle competition; third, that laws prohibiting restraints on alienation could apply to create something like a "first sale" doctrine.
  3. The government database exemption is considerably broader than what copyright law affords (states appear to be covered by Moorhead), so in this respect Moorhead might be an improvement over the current unsettled situation.
  4. There is nothing sacrosanct about the copyright rule that sweat of the brow is not protectable. In most other contexts, we recognize the value of labor, so why not in the creation of IP? I don't disagree with the copyright cases ruling against s-o-t-b as interpretations of the Copyright Act, but I see no great moral objection to protecting it under some other legislative scheme.

For the record: I have no personal interest, other than as a consumer, in the subject matter of the legislation, nor does any client of mine have a "position" on the matter I am aware of, or a strong enough interest to warrant one.

Vance R. Koven
<vrkoven[_at_]> Received on Tue Sep 17 1996 - 13:05:56 GMT

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