The Future of Database Protection in U.S. Copyright Law

In the recent British Horseracing Board case, the English High Court signaled a return to the sweat of the brow standard of copyright protection. Although recent attempts have been made in the United States to protect databases under this standard, this iBrief argues that the information economy is wise to continuing protecting this data through trade secret, State misappropriation and contract law until legislation is passed

Hot News & No Cold Facts: NBA v. Motorola and the Protection of Database Contents

In National Basketball Ass\u27n v. Motorola, the Second Circuit encountered the problematic issue of copyright preemption. Though the case did not directly involve the protection of database contents, NBA is a harbinger of judicial underprotection for the database industry. In holding that state misappropriation doctrine is preempted by the Copyright Act except in a very narrow class of hot news cases, NBA unduly restricts the common law\u27s ability to prevent tortious behavior between database industry competitors. This underprotection has fueled a movement toward the legislative protection of database contents, but recent Congressional proposals, in their current form, leap to the opposite extreme and would overprotect database contents. Congressional action to encourage the proprietary development of database products is nevertheless desirable, and this paper will argue in favor of the legislative codification of a misappropriation model similar to the one preempted in NBA

The Alphabet Soup of Transborder Intellectual Property Enforcement

n the past few years, policymakers, academic commentators, consumer advocates, civil liberties groups, and user communities have expressed grave concerns about the steadily increasing levels of enforcement of intellectual property rights. Many of these concerns relate to the alphabet soup of transborder intellectual property enforcement, which consists of the following: SECURE, IMPACT, ACTA, TPP, COICA, PIPA, SOPA, and OPEN. Published in the inaugural issue of Drake Law Review Discourse, this short essay identifies six different concerns and challenges the Anti-Counterfeiting Trade Agreement (ACTA) poses to U.S. consumers, technology developers, and small and midsize firms. It then explores the ongoing negotiation of the Trans-Pacific Partnership Agreement (TPP) and explains why TPP is likely to be more dangerous than ACTA from a public interest standpoint. The essay concludes by highlighting the challenges recently raised by two new pieces of legislation, the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA)

Global Sourcing of IT Services and Information Security: Prudence before Playing

This paper calls for awareness of the risks in global sourcing of IT and IT-enabled services. It calls for appropriate assessment and mitigation of these risks. The authors identify ways in which global sourcing (often called offshoring) increases information security exposures and strategies for managing such risks

The Alphabet Soup of Transborder Intellectual Property Enforcement

n the past few years, policymakers, academic commentators, consumer advocates, civil liberties groups, and user communities have expressed grave concerns about the steadily increasing levels of enforcement of intellectual property rights. Many of these concerns relate to the alphabet soup of transborder intellectual property enforcement, which consists of the following: SECURE, IMPACT, ACTA, TPP, COICA, PIPA, SOPA, and OPEN. Published in the inaugural issue of Drake Law Review Discourse, this short essay identifies six different concerns and challenges the Anti-Counterfeiting Trade Agreement (ACTA) poses to U.S. consumers, technology developers, and small and midsize firms. It then explores the ongoing negotiation of the Trans-Pacific Partnership Agreement (TPP) and explains why TPP is likely to be more dangerous than ACTA from a public interest standpoint. The essay concludes by highlighting the challenges recently raised by two new pieces of legislation, the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA)

Code Versus the Common Law

The explosion of peer-to-peer file sharing has forced a reexamination of the essential structure of copyright law in the United States. In a digital, interconnected world, the dispersion of copying and distribution activities makes it more difficult for copyright holders to identify users who derive value from their works. And at least theoretically, the inability to capture such value could ultimately jeopardize the incentive to produce and distribute creative expression. There is widespread disagreement over what, if anything, should be done about these threats. While suggestions range from copyright abandonment to digital lockup, two of the principal proposals share an important common feature: each would replace our current law, which centers on copyright owners and those who actually use their works, with one that sweeps a much broader array of characters into the legal arena. Under the first proposal, the current market-based approach to intellectual property licensing would give way to a government-imposed levy on a wide range of technology services. Under the second scheme, reflected in bills such as the failed Consumer Broadband & Digital Television Promotion Act, an assortment of related industries would share responsibility for protecting against infringement of publishers\u27 copyrights. This article critically evaluates a core assumption that underlies these schemes: that the challenges posed by file sharing either cannot, or should not, be addressed through application or tweaking of the common law of copyright. Before shifting from the current acts-based, individualized scheme to one that falls back on neutral technology as either a tax base or an enforcer, we should have confidence that the current system does not work and cannot be fixed

Despatches from the Front: Recent Skirmishes Along the Frontiers of Electronic Contracting Law

This Article will provide a short overview of the current efforts in the United States and the European Union to reform contract law to accommodate recent innovations in electronic contracting. Whether changes are needed to current contract law doctrines governing contract formation, effectiveness of contract terms, choice of law and forum provisions, special protections for consumers, and signature and writing requirements, revisions in these areas have all proved controversial. Even in those areas where a consensus may be emerging on whether law reform may be appropriate in some form, consensus is often still lacking with regard to the specific legislation needed to accomplish those reforms. The United States is not the only major arena where such reforms are being debated. The EU is addressing the same problems, but taking a markedly different approach. If the United States and EU commit themselves to divergent approaches to the regulation of electronic contracting, major obstacles will be placed in the paths of businesses hoping to exploit global electronic markets. Businesses may then be forced to design their electronic commerce systems to conform to multiple, incompatible legal standards, or face the prospect of being shut out of major markets for electronic commerce services altogether