Re: Databases, creativity, and copyright -- what's missing is wrong?

On 02.10.98, Albert Henderson <noblestation[_at_]compuserve.com> opined:
>
> On 29 Sep 1998, Timothy Phillips <hrothgar[_at_]telepath.com> wrote:
> >
> > Is the database bill necessary ? My answer is, "No and maybe."
> > In situations where the public-goods problem operates and the
> > compilation copyright doesn't protect adequately, some sort of
> > new misappropriation law or sui-generis protection may be needed.
> > But the database bill presently in congress is an alarmist
> > over-reaction to a problem whose existence has not clearly been
> > demonstrated. The proponents want to create sweat-of-the-brow
> > protection for everything that can possibly be construed as a
> > "collection of information."
>
> Take, for instance, the publication of a membership directory
> in database form aimed solely at promoting communications
> among members. The list probably includes members' professional
> addresses, fax numbers, telephone numbers, email, etc.
>
> Under the present law, a copy of that database can become a mailing
> list "rented" to direct marketers at a very high profit. The members
> are deluged with junk mail, spam, and annoying calls. The market
> value to of the database to the members, who may also wish to
> rent it under controlled conditions, is also diluted. "Renters"
> of the copy receive dated information rather than the current
> update and waste resources on many nixies. Ever
>
> Using the old technology, mailing list vendors would take a
> print copy of such a directory and have it typed onto carbonized
> "penny" labels. Later, photocopy replaced carbon paper.
> Typewriter technology limited the abuse to mailings. Electronic
> databases make telephone, fax, and email relatively easy as
> well as eliminating a substantial labor cost.
>
> Many associations market their list to meeting organizers,
> publishers, and equipment vendors that serve the special
> interests of the members. Generally, credit cards, insurance
> pitches, and other general consumer promotions are
> excluded.
>
> The members, who paid for the compilation, are forced to
> compete with 'pirates' who merely copied the d/b. The
> market may be controlled by brokers, who sell dated facts
> rather than current information because of their
> preoccupation with commissions.
>
> The proposed legislation may have a desirable effect.

This is, at best, a non sequitur. Copyright becomes an issue if, and only if, the association rents its membership list out to others without adequate contractual protection. Whether there is a change in copyright law or not, the "right" answer is to put draconian restrictions on use into the rental contract. With adequate teeth in them--such as an arbitration clause with confessed liquidated damages per copy ever found--these clauses are actually better than copyright law, because one need not go to court to get satisfaction. (And it would be a simple matter to secretly embed unique data into the database to enable tracing the copy back.)

In other words, this is simply not a question of copyright. It's much closer to a trade secret than a copyright (although, since it's revealed to others by necessity, it's not strictly a "secret").

C.E. Petit, Esq.
Human Kinetics Publishers
<cepetit[_at_]usa.net>
(this posting is a personal opinion and does not necessarily reflect my employer's) Received on Sat Oct 03 1998 - 16:50:56 GMT