Re: Database Bill and Article 2B

Laurel Jamtgaard <laurelj[_at_]arl.org> wrote:
>
> [Be forewarned, this is an advanced question about POSSIBLE FUTURE law
> NOT existing law.]
>
> ASSUMPTIONS:
>
> A) 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?

Laurel,

  You open up the "Preemption" can of worms. In fact, if you extend your argument to software (which is subject matter covered by copyright), then article 2B is pre-empted if it is state law, by the copyright preemption statute. I wrote a 40 page paper on the preemption issue as it relates to article 2B, which I can share with you electronically, if you like.

Thomas Workman
<tworkman[_at_]erols.com> Received on Thu Jun 25 1998 - 18:32:07 GMT