Current Developments in Database Protection (Part 3 of 3)
Published By Res Ipsa Loquitur March/April 2006

The first part of this series detailed how U.S. Copyright law provides protection for databases that have adequate selection and arrangement. The second part detailed how state contract law may provide some additional database protection. This third and final part details two additional forms of database protection: the Digital Millennium Copyright Act (“DMCA”) and the Doctrine of Misappropriation.

The DMCA criminalizes production and dissemination of technology that can circumvent measures taken to protect copyrightable materials and heightens the penalties for copyright infringement on the Internet. More specifically, the DCMA prohibits (a) the circumvention of technological measures that control access or copying of copyrighted work and (b) the manufacture, importation, offering to the public, providing, or trafficking of any technology, product, service, device, component, or part thereof, that is primarily designed or produced for the purpose of circumventing either anti-access or anti-copying technological measures.

One important note is that the DMCA only prohibits the circumvention of technological measures that control access to or copying of copyrightable materials. As described in part one of this series, material is copyrightable if it has been adequately selected and arranged. However, developers of non-copyrightable databases may benefit from the DMCA. This is because if a party circumvents the technological protection of a database, the circumventing party bears the risk that the database may in fact turn out to be copyrightable subject matter, thus, making the party subject to the penalties listed by the DMCA. This unknown may serve to discourage parties from initial circumvention and distribution.

The Doctrine of Misappropriation originates from the 1918 Supreme Court case, International News Service v. Associated Press. In this case, the Supreme Court held that a news wire service had the right to prevent rivals from copying its news bulletin. The Court reasoned that if someone invests in gathering and disseminating information, they are entitled to the fruits of their labor. Under the Doctrine of Misappropriation, courts examine the methods, which may result in unfair competition. In the recent Second Circuit case of National Basketball Association v. Motorola, Inc., the court set forth a two-part test under New York’s state misappropriation doctrine. First, the court will look for specific instances where the plaintiff generates highly time-sensitive information and the defendant free-rides on plaintiff’s efforts. Second, the court will consider whether the defendant competes directly with the plaintiff and whether the defendant’s actions would reduce the plaintiff’s incentive to produce the service.

Some argue that misappropriation is ineffective in dealing with database protection because (a) misappropriation laws vary from state to state, and (b) misappropriation laws typically regulate the conduct of competitors and not of users. A more desirable solution for database developers would be for state legislatures to apply misappropriation laws to both competitors and users.

This article has been reprinted with permission from the March/April 2006 edition of Res Ipsa Loquitur, published by the Washtenaw County Bar Association.