On 5/1/98, Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> In this sense, database protection is no different than trademark
> protection. Neither are authorized by the copyright clause, but because
> they're not within the scope of the clause, can be empowered by other
> clauses.
>
> Feist is kind of a catch-22 here: The core holding of Feist, that a
> database is not within the scope of the copyright clause, is precisely
> what permits protection authorized by another clause.
This logic has always escaped me. The Supreme Court said there was not enought originality in Fiest. So Congress responds with a database bill that provides copyright like protection in the absence of originality. Following the logic of the analysis of supporters of the bill, under the Commerce Clause, Congress could then enact legislation providing copyright like protection to any and all types of non-creative non-original works. Thus, the requirements of the Copyright Clause mean nothing.
> 2. If the U.S. is a signatory to a database protection treaty, under
> the treaty clause, Congress is empowered to enact legislation pursuant
> to the treaty under Holland v. Missouri and its progeny. This is
> another distinction from the bankruptcy case, where there was no treaty
> basis to support the passage of nonuniform bankruptcy laws.
So, this means that EEC the State Department in negotiating treaties can walk around the Consitution?
> All that aside, I don't personally favor database protection laws, and
> in particular, I don't favor the ones that have been proposed. But
> whether a proposed law is stupid is a different question from whether it
> is unconstitutional.
What is really "stupid" in the present version of the bill is that under opposition by the telecommunications companies, the House inserted a special provision that exempted from protection telephone directories published by regulated telephone companies. In other words, Feist on the facts, but not the analysis, would remain. But this special purpose amendment to special purpose legislation is revealing, for it is an admission that sole source databases or databases of particular types are not deserving of protection. Every academic and economist supporter pointed out the dangers of this bill in its anticompetitive potential. The inherent anticompetitive aspects of the bill was ignored, except for the very same telephone books that were the rallying cry for the bill in the first place. So, what about say sport scores, tv listings, stock prices, and private versions of public documents that by inaction and or coopertation of the government have become the official and de facto sole source of governmental information.
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: :: Alan D. Sugarman Federal Appeals on Disc tm CD-ROM :: :: President Opinions of US Courts of Appeals :: :: 1993 to Date - All Circuits :: :: HyperLaw, Inc. Registered Trademark :: :: P.O. Box 1176 DO NOT SHORT CIRCUIT YOUR CLIENTS :: :: New York, NY 10023 :: :: sugarman[_at_]hyperlaw.com 212-787-2812 212-496-4138(fax) :: :: :: :: http://www.hyperlaw.com :: :: :: :: /// /// /// [R] :: :: /// /// /// :: :: /// /// /// :: :: //////////////// /// :: :: //////////////// /// :: :: /// /// /// :: :: /// /// /////////// :: :: /// /// /////////// :: :: :: :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::Received on Wed May 06 1998 - 19:51:20 GMT
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