Re: Analysis of Database Legislation

From: <johnl[_at_]>
Date: Wed, 18 Sep 96 07:47:16 -0400

On 09/17/96, vrkoven[_at_] (Vance R. Koven) said:
> 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:

> 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.

Copyright is a recognized exemption to freedom speech. Prohibiting copying is a restraint on speech.

By removing itself from the Copyright Clause, doesn't the Moorehead bill raise issues of free speech? Granted it is in the commercial area, where we allow all sorts of restraints and have very murky theories of what is and what is not allowed, but isn't this a question?

I am sure for instance that we would all stand aghast at a Commerce Clause measure that prohibited the commercial copying and distribution of political party platforms -- yet that quite possibly would be embraced by this bill.

What is being regulated may be commerce-- but it is commerce in the expression of ideas.


John Lederer

Oregon, Wisconsin
(Using Merlin--and liking it) Received on Wed Sep 18 1996 - 12:52:22 GMT

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