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Re: Non-EU? (Was Re: Aspell-en license Once again.)

Arnoud Galactus Engelfriet wrote:
Nathanael Nerode wrote:

Under US law, word lists and phone books are not copyrightable (given a few days I could probably find the court case). US government documents are not copyrightable. Copyright cannot be restored to works which have lost it for any reason (despite the unconstitutional passage of the URAA).

The case regarding copyrighting facts is _Feist vs Rural Telephone Services_. But keep in mind the Database Directive
establishes something entirely new. It has nothing to do with
copyright. You get protection simply because you made a
substantial investment in time, energy or money to collect the
Interesting. It has been ruled repeatedly that under US law the only protection available for such investments is under doctrines similar to the "trade secrets" doctrine, and that publication renders "trade secret" status inapplicable. Of course, if a company required you to sign an NDA or some other agreement to look at their database, that would be different, because it wouldn't necessarily be considered 'published', and it would be subject to contract law! Then it would be protected, subject to trespass cases, theft cases, and so on.

And regarding constitutionality in the USA, I understand there
are several bills in the works that would establish something
similar. Furthermore, Congress could pass such a law easily
under the interstate commerce clause if they wanted.
There'd be major legal fights if they did. It's called "regulating" interstate commerce. Although it's been interpreted extremely broadly, it has rarely, if ever, been interpreted to allow the creation of government-granted monopolies, thanks to the US/UK tradition under which government-sponsored monopolies are looked upon with great suspicion. And according to US copyright tradition, such a law would be considered the establishment of a government-sponsored monopoly. It would likely be analyzed under the First Amendment guarantee of free speech as well, and it would be likely to fail under that criterion too.

(Interestingly, due to the US's "dual sovereignty" principle, what Congress cannot do, the states might be able to do, since Congress has enumerated powers and the states don't. If a state established a state database right it would be subject to First Amendment scrutiny, but not scrutiny as to whether it was a legitimate invocation of the commerce clause, and as such a state law would have a much higher chance of survival.)

I have no doubt that Congress will attempt to pass lots of unconstitutional laws; it's been doing that a lot lately. The question really is how corrupt our Supreme Court is; it won't necessarily uphold the unconstitutional laws even if it is pretty corrupt. :-/ If it's sufficiently corrupt, all legal bets are off and we'll have to start a civil disobedience movement.

Regarding Morris v. PGA:
"Since this case, 'sweat of the brow' database protection is more or less at the same level as the protection offered by the EU Database Directive." Not exactly. During the 30-minute delay, the scores are not 'published', and therefore fall under trade secret types of doctrines. It doesn't appear to affect the status of the scores *after* publication, and it looks like the Database Directive affects them forever. Furthermore, it appears to be a state court case based on state laws, meaning that databases might be protected in Florida and not in New York. (Really!)


Obligatory Non-disclaimer:
I'm not a lawyer. I'm a student of the law. I can tell you what I believe to be the law. But only a lawyer can tell you what will keep the government off your back.

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