Response or Comment
Kernochan Center for Law, Media and the Arts
Daniel Gervais concluded his analysis of the protection of databases with three options for the future. I would like to examine a fourth. Let us assume no future flurry of national or supranational legislative activity because the content of databases is in fact already being protected. Not through copyright or sui generis rights, but through other means. Databases are an object of economic value, and they will conveniently wed whatever legal theory or theories will achieve the practical objective of preventing unauthorized exploitation of the works' contents. To beat the marriage metaphor into the ground, I'd like to suggest that, at least in the U.S., databases today can avail themselves of the traditional range of wedding gifts: "something old, something new, something borrowed, something blue."
The something old is contract law; the something new is the Computer Fraud and Abuse Act; the something borrowed is the newly reminted tort of "trespass to chattels"; and the something blue – using "blue" in the sense of something risque and perhaps objectionable – is digital rights management, reinforced by the anti-circumvention protections of § 1201 of the Digital Millennium Copyright Act.
Jane C. Ginsburg,
A Marriage of Convenience? A Comment on The Protection of Databases,
Chi.-Kent L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2215