Student Projects:Database Protection:Elijah&Charistel'sSection

U.S. government is currently faced with creating a balance between making certain that the rights of those producing databases are protected and at the same time not stifling the beneficial uses of scientific and technical databases. Many people in the database industry have expressed concern that they are out in the open, susceptible to “free riders” taking advantage of their hard work. The fact of the matter is, with relatively little or no technical knowledge and effort, data can be copied cheaply and effectively. This ease in copying and distribution of databases will be large disincentives for companies to invest in the creation of new databases and to horde those that they do create off line in the private domain.

The problem with creating a “sui generis” protection for databases is that there is a large amount of information in the public domain that can fall under the current term “a collection of data.” For example, is my personal choice to arrange my music as I see fit a unique database. Is the organization within my I-pod a protectible database? Like wise, is the database that Apple’s “itunes” site tracks and compares my purchases and the purchases of others, based on my collection, a protectible database? That information is important because if someone’s particular musical tastes is known, one can tailor advertisements to a specific group of people. The very definition of a database is not an original idea, it is rather the use of known facts, but those facts are “arranged for ease and speed of search and retrieval.”

Typical Objectives of Organizations That Produce and Disseminate S&T Databases Federal Government Not-for-Profit/Academic For-Profit Primary motivations Serve national goals, including promoting societal well-being and supporting basic research and other public-good interests Fulfill mission, including furthering research, education, creation of knowledge, and discovery; remain economically viable Achieve corporate objectives, including profit making and growth, and ensure shareholder and customer satisfaction Goals of S&T data collection and database development Support agency mission; undertake basic research as a basis for economic growth and productivity and for public well-being Advance knowledge by conducting new research and by validating and building on the research of others; educate future researchers; contribute to basis for producing social benefits; build reputation and status of researchers and their institutions Support development of new or improved products or services; develop databases for direct sale or lease as products or as services in support of other products or services Goals of S&T database distribution Maximize the downstream benefits of basic research; promote availability and use of research results in both public and private sectors Encourage open sharing of ideas; enable existing data to be reused for discovery of new knowledge; invite review and validation of research results; facilitate use of research results for product development by S&T community and commercial concerns; recover costs or generate revenue in support of mission Disseminate data to protect competitive advantage when databases are used for development of other products or are themselves products or services; disseminate via sale or license to generate revenue, enhance customer base and market position, gain competitive advantage, achieve profits, or recover costs Access to data Open exchange of information encouraged by federal policy Open, with data and ideas shared after results have been published Internal and confidential, or available/marketed externally at a cost set by the organization Interest in protecting the databases produced Very low; any restrictions generally seen as a problem, with few benefits Moderate; ranges from very low (for fully subsidized databases) to moderate (when cost recovery is necessary) to high (when data are a source of revenue required to support mission) Very high; databases regarded as investments to be protected whether they are used in product development or are themselves products or services to be sold [7]

Erosion of Copyright Law (a look at the aftermath of Feist)

1. Interpretation of Lanham Act 2. Click Licensing 3. Trespass to Chattels 4. Computer Fraud and Abuse Act After the Feist case had subsided, many more cases have come to the surface hoping much to gain the much sought after protection of copyright law, but many have failed (well at least in the US). The potential consequences of enacted laws eroding the 1991 Feist case decision was evident in the Dastar v. Twentieth Century Fox case that was finally decided by the U.S. Supreme Court in (2003) that the Lanham (Trademark) Act could not be extended to include the attribution of facts. In the words of Justice Antonin Scalia “We do not think the Lanham Act requires this search for the source of the Nile and all its tributaries.” Scalia goes on to include that “allowing a cause of action under §43(a) for that representation would create a species of mutant copyright law that limits the public's federal right to copy and to use” which in the case of database creation would make the whole premise that they are created for ease of interpretation and retrieval useless due to proposed attributions. These are the types of interpretations that uphold the Feist decision. The interpretations of the lower courts are what seek to reinstate the “sweat of the brow” defense that was rejected in Feist. The Dastar v. Twentieth Century Fox case was argued over many years before we were given a clear answer in 2003. Shrink-wrap licenses introduced by product vendors of data in the form of CD’s that will not allow access to the information purchased without agreeing to a click on license that appears during installation. The license in effect does evade Feist by holding the user of data to the agreement that they will not reuse facts contained within the product in any way shape or from. The case ProCD is where in which white pages are copied by Zeidenberg and in response the court has upheld the click-on agreement. This is a circumvention of Feist because white page listings are facts in the public domain that are now protected by this contractual agreement.

Trespass to chattels as in the Ebay v. Bidders Edge case show that a “mere interference with a possessory interest is sufficient to establish damage.” The idea is that by searching Ebay’s website with a web crawler Bidder’s Edge was in fact inappropriately using Ebay’s website to access information. It is due to this gross over use/ abuse of Ebay’s conditional access to their database that resulted in a loss for Bidder’s Edge. This idea of Cyber trespass can be used to protect facts not just the database itself. In effect protection of individual prices for items offered (facts) is what the court’s ruling in the Ebay case has done. The court stood on the Intel v. Ham

The Computer Fraud and Abuse Act states that unauthorized attempts to upload information and/or change information on these web sites are strictly prohibited and are subject to prosecution under the Computer Fraud and Abuse Act of 1986 and Title 18 U.S.C. Sec.1001 and 1030. This is the wording of the U.S. Federal State department in that if a person in damage assessment as incurred al “loss” of $5,000 for even the extraction of one fact from his/her website or database the statue will go into effect. Two cases have used the CFAAU. In both EF Cultural Travel v. Exploria and Register.com v. Verio the defendants were found in violation of the CFAAU. Exploria was implicated for obtaining prices from EF so that they could undercut the competition and, Verio for accessing a personal database of customers of register.com in order to solicit to those patrons. Congress would like to change all of this by allowing the first arranger to get control of it completely, including all the facts. In thinking about scientific data or publicly funded research the consequences are undoubtedly grim. Do we truly want research data frozen up like this? Facts that would normally enter the public domain will be owned privately, stifling further research that would otherwise be built on. Not to mention the scores of the NBA. There is no reason for this, and in fact AT&T, Yahoo, Google, Amazon, and many others contest to it, but the copyright alliance is strong, and their interests are awfully short-range.

Various entities that support sui generis

1. Lexis-Nexis (Nigel Stapleton) 2. West/Thomson and Reed-Elsevier (Laura D'Andrea Tyson) 3. eBay (eBay Inc. v. Bidder’s Edge) 4. Nasdaq (Robert Aber)

These are companies or businesses that rely on collecting databases and compiling them into an organized form. Without the protection of sui generis, their financial incentives are hindered by those that easily copy their databases, such as “free riders.”[2]

According to a statement made by the chairman of Lexis Nexis, Nigel Stapleton, he stated that “competitors could potentially copy or extract significant portions of our databases and sell it in direct competition with us while avoiding the significant expense of creating it themselves.”[9] Meaning that the fear is not much of the reproduction of the actual databases, but the fact that their very own databases could be used against them on the grounds of competition.

Laura D'Andrea Tyson who was the paid consultant for West/Thomson and Reed-Elsevier, and the Coalition Against Database Piracy (which is a coalition that was formed by West/Thomson and Reed-Elsevier) stated the same when it came to database protection. Tyson stated that “database providers spend hundreds of millions of dollars a year updating their existing databases and the newly-updated databases also need protection.” Tyson stated that with the increasing technology there not only came improved access for the public to view databases, but easier access to duplicate and “steal” databases without “compensating” the creators of the databases. Tyson also suggested that the creators of the databases would not be able to make price differentiation when it came to the databases because if no protection was offered there would be no benefit because the database may be available for free. Tyson suggested to solve this was to add protection then charge “fees to be paid to the original authors and publishers.” [10]

In April of 2000, eBay underwent a battle dealing with Bidder’s Edge, a website that allowed on-line auction buyers to view a certain item that appeared in a number of auctions without having to search each auction individually, about “the method BE use[d] to search the eBay database.” In the court case eBay Inc. v. Bidder’s Edge, eBay alleged that it would undergo incorrigible misfortune if Bidder’s Edge continued to subsist and if relief were not granted. The damages it alleged were “(1) lost capacity of its computer systems resulting from to BE's use of automated agents; (2) damage to eBay's reputation and goodwill caused by BE's misleading postings; (3) dilution of the eBay mark; and (4) BE's unjust enrichment.” Altogether, eBay alleged two categories of sufferings. “The first type of harm is harm that eBay alleges it will suffer as a result of BE's automated query programs burdening eBay's computer system ("system harm").” The second harm would be BE’s misrepresentation of eBay’s information therefore they would be suffering “reputational harm.”[3]

In 1998, Robert Aber, who was the Senior Vice President and General Counsel of the Nasdaq Stock Market, Inc. and also the Chairman of the Board of Directors of the Information Industry Association ("IIA") made a statement declaring more protection. His concern for protection dealt with the competition with the international waters and the US as well. [1]

Aber feared that the U. S. database industry would be at a disadvantage with competition from other countries like Europe. He stated that the European Union's Directive on the Legal Protection of Databases ("EU Directive"), protected only the databases developed within its own country or other countries that had a similar laws enacted. Therefore, the EU Directive could be interpreted as a “license to steal” databases from countries overseas that did not recognize database protection. Since the U. S. produces the majority of the databases, its control and incentive might cease granted situations like this would occur. [1]

Aber also feared that there would be destruction within the US. Before the revelation of the Feist case, developers of databases believed that their databases were covered by copyright protection and sanctioned under the "sweat of the brow" doctrine. [1] Many believed that this doctrine would "prevent the copier from competing unfairly with the compiler by appropriating the fruits of the compiler's efforts or creativity. In this sense, courts treated copyright protection for compilations much like a branch of unfair competition law."[13] There was also fear that the compilation that has been created would not “express originality” and would thus retain limited protection from competing entities who want to make a quick buck off of someone else’s hard work. Even if there was not a financial incentive, Aber worried that “cyberpranksters” would duplicate and display for public viewing on the internet without consideration for the producer of the database.

Various entities that against sui generis

1. Researchers 2. Maurer 3. Universities 4. Robert Aber (Nasdaq)

There are various opponents/ skeptics to creating sui generis rights for databases. The issue of continuing research is what drives progress in the physical and social sciences. Thus research expands our knowledge of the inter workings of complex systems within the world around us. Society uses this research in a wide varety of applications to increase the public welfare and create more wealth. The hording of facts through constraining sui generis protections would greatly disadvantage the practice of information exchange that occurs that this level. As Stephen M. Mauer proposes “Open Science” could be the key to saving millions of lives by the simple collaboration of researchers and doctors of third world diseases in that diagnosis, pharmaceuticals, and treatments in medicine techniques could be shared and learned from through “Computational drug discovery which is similar to de-bugging Software.” [5] In this respect agricultural researchers can also collaborate on better high-output food production and faster and cheaper energy production and manufacturing. NOAA has grown exponentially its databases from 250 mega bites in its first year of text and tables, to the projected 230 petaterabites in 2010. “Comprehensive database protection would turn the situation on its head by making virtually all facts protectible as ‘organized collections of information.’ ” [8] An imposition of a such sui generis protection would implore NOAA to take measures to restrict access to its vast collections of satellite images and raw data. This position is held by large companies like “Amazon.com, AT&T, Comcast, Google, Yahoo, and The US Chamber of Commerce [6]

A sui generis database protection on databases could lead to some unbelievable things such as a student copyrighting their own homework and a teacher would not be able to alter it unless the student gave permission to do so, sports quotes would not be able to be “quoted” unless granted, stock exchanges would be able to copyright “quote tables” and charge for viewing them, and last and oddly least just about anyone could copyright search engines and charge for the usage. [14]

Databases in the wrong hands (security and protection) An example of internet community’s response to the unlawful theft of a database can be seen in the story of Half Life 2’s source code being stolen. “It was extraordinary to watch how quickly and how cleverly gamers were able to unravel what are traditionally unsolvable problems for law enforcement related to this kind of cyber-crime." [11] In this instance the stolen data was so damaging that it threatened to put the company Valve with a significant loss. The fact of the mater is there is a certain point when the community will recognize hard work and bring those responsible to justice. That standard of harm is in most cases too high for those who are for database protections.

University of California, Berkeley was ‘hacked’ and about 1.4 million people’s critical information on the university’s record keeping system was viewed. There is no way to tell if the data was compromised or accessed, but University officials say that “The information could potentially be used for identity theft or credit card fraud” [4] In this case anyone found to have accessed the database would be charged with unlawful use and access to the University’s database system and invasion of privacy by those whose information was captured by the hackers.

[1] Aber, Robert E. “Hearing on H.R. 2652, the Collections of Information Antipiracy Act.” February 12, 1998 <http://www.hyperlaw.com/aber.htm> [2] Arnold, Giannia J. and Uri Bilek. “Databases Seek Legislative Shield.” Oct. 11, 2004 <http://www.ebglaw.com/article_1049.pdf>

[3] “EBAY, INC., Plaintiff, vs. BIDDER'S EDGE, INC., Defendant.” April 14, 2000 <http://pub.bna.com/lw/21200.htm> [4] King, Rachel. “Campus Computer Hacking Spurs Federal Investigation.” The Daily Cal October 20, 2004 <http://www.dailycal.org/article.php?id=16605> [5] Maurer, Stephen M. “Finding Cures For Tropical Diseases: Is Open Source an Answer?” <http://salilab.org/pdf/136_MaurerBIOESSAYS2004.pdf> [6] McCullagh, Declan. “Court Doesn't Extend Database Protection.” February 26, 2004 <http://news.com.com/2100-1024_3-5165624.html?part=rss&tag=feed&subj=news [h] http://www.state.gov/documents/privacy.cfm> [7] National Academy of Sciences. “A Question of Science: Private Rights and the Public Interest in Scientific and Technical Databases.” 1999 <http://books.nap.edu/html/question_balance/ch2_t1.html> [8] National Academy of Sciences. “A Question of Science: Private Rights and the Public Interest in Scientific and Technical Databases.” 1999 <http://books.nap.edu/html/question_balance/ch3.html>

[9] Stapleton, Nigel. “Reed Elsevier on Database Protection.” June 1997 <http://www.cni.org/Hforums/cni-copyright/1997-02/1303.html> [10] Tyson, Laura D'Andrea. “Database Protection Proposals Page.” September 29, 1997 <http://www.hyperlaw.com/dbpage.htm> [11] Thorsen, Tor. “Valve Announces Half-Life 2 Code Theft Arrests.” June 10, 2004 <http://www.gamespot.com/news/2004/06/10/news_6100381.html> [12] University of Maine. “Database Protection Laws Could Threaten Economic Development and Scientific Research.” October 2001 [13] U. S. Copyright Office. “Report on Legal Protection for Databases.” August 1997 <http://www.copyright.gov/reports/dbase.html> [14] Wylie, Margie. “Crisis Over Copyrights.” December 13, 1996. <http://news.com.com/Crisis+over+copyrights+-+page+2/2009-1023_3-254879-2.html?tag=st.num>