Database Bill and Article 2B

[Be forewarned, this is an advanced question about POSSIBLE FUTURE law NOT existing law.]

ASSUMPTIONS:

1. Let's assume that H.R. 2652 (the database bill) passes with its current language regarding preemption which states that the law of contract will not be considered an equivalent right. (This is not a statement in support of the Bill)

  AND B) Assume that Article 2B of the UCC has been passed by the states and that it validates shrinkwrap (nonnegotiated) mass-market licenses. (This is not a statement in support of 2B)

THE HYPOTHETICAL:
Assume that a CD-ROM database of raw data is purchased by a social scientist and it includes a "shrinkwrap" license with provisions requiring no copies and no extraction whatsoever. Now assume that ten years later the scientist extracts 500 of 50,000 data records and publishes them in a scientific journal article. The database provider brings both a breach of contract and a database infringement/misapprop. claim.

QUESTIONS:
1) On the database claim, the scientist argues that the extraction was not significant, but the database provider points to the license to argue that the scientist had given up the right to assert that defense. What result?

2) On the breach of contract claim regarding the same behavior, I would think that the consumer scientist will lose hands-down because the license terms control under H.R. 2652's preemption provision. Is unconscionability her only defense?

Thanks!!

Laurel

   Laurel Jamtgaard
   Policy Analyst

       202.296.2296 FAX:202.872.0884 laurelj[_at_]arl.org Received on Wed Jun 24 1998 - 21:16:20 GMT