Re: Non-EU? (Was Re: Aspell-en license Once again.)
Arnoud Galactus Engelfriet wrote:
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.
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
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
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.
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.
(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
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!)
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.