At 05:01 PM 7/12/99 -0400, Martin B. Schwimmer wrote:
>Under current United States law, it is highly doubtful that collection by
>registrars of this factual information gives rise to any enforceable
>intellectual property rights. Under Feist Publications, Inc. v. Rural
>Telephone Service Co., 499 U.S. 340 (1991), copyright may not be claimed in
>factual information itself, but only in the selection, coordination, or
>arrangement of the information in a sufficiently original way. It therefore
>violates no copyright for others to use the registrar data for their own
>purposes according to their own selection, coordination, and arrangement.
>Similarly, because the registrar data has long been available to the public
>for the asking, both by Internet tradition and by U.S. Government
>requirements, it would not seem to be subject to legitimate claims of
>trade-secret rights.
>
>Although not giving rise to intellectual-property rights under current U.S.
>law, registrar data may be subject to claims of intellectual property
>rights under the laws of other countries, or under future laws that may be
>enacted in this country at the state or federal level. Claims under such
>laws, if not accommodated to the Internet�s needs, could complicate the
>efforts of the technical community to ensure stable and reliable operation
>of the Internet and the legitimate needs of the Internet user community for
>information about domain names. Pending proposals for extending U.S.
>intellectual-property law to cover databases, fortunately, take into
>account these special operational needs of the Internet. For example, H.R.
>1858 (the Consumer and Investor Access to Information Act of 1999), which
>protects publishers from others who seek to compete unfairly by copying and
>selling the publishers� databases, specifically excludes coverage of
>databases "incorporating information collected or organized . . . to
>perform the function of addressing, routing, transmitting, or storing
>Internet communications . . . ."
Fortunately? The above characterization of the Feist case is quite correct
as far as it goes, but as I recall, that case also addressed the fact that the
party claiming the copyright was doing only what the law required it to do in
any event, and it did not embark on constructing that data base on its own.
Secondly -- and more to the point of my "fortunately" query -- the legislation
seems quite ill conceived in that registrars are registration agents, not
"publishers." If, on my own, I compile some stack of data grabbed from
wherever and arrange it in some original way, etc., presumably I could
avoid Feist and properly claim a copyright. When a data base comes
about as a byproduct of providing another service such as domain name
registration, however, that data base is simply a necessary result of the
service already being performed -- at least to some extent "as required
by law" (I wouldn't push that too far, obviously), so besides there being
some difficulty in claiming originality, there also remains that other horn
of the Feist case. (I might add that this whole data base issue has much
further and far-reaching echoes: many in the scientific research field
have decried the possiblity of being cut off from scientific data they need
for their research, and for which copyright protection has also been
proposed.)
Thirdly, there is the right of privacy. Where does it say that a registrar
can claim rights to data that we have each contributed our input to,
especially for such " . . . Investor Access to Information" purposes: to
sell to marketers so that I'll be getting even more spam, junk faxes
and dinner time phone calls? For what purpose does a registrar
want the data that has been "handed" to it covered by a copyright
which that registrar would claim to own?
Finally, no one seems to have considered that under some laws
there might be rights in the relevant data as derived from the actual
creators thereof: you or I cook up a killer phrase and use it as a
domain name, for example. Where would the registrar get the right
to republish what such an individual has created? Generally
speaking, that is the only point at which anything truly "original"
was done, not in the mere mechanical compilation thereof.
As to that, I was privileged to hear a description by an NSI attorney
in the Lockheed Martin v. Network Solutions case at the Ninth
Circuit, wherein it was said in effect that such compilations "are
untouched by human hands," more or less, hence NSI cannot be held
legally responsible for the content thereof (I should maybe shoot
myself for siding with NSI and saying so, but I personally believe
that the argument is correct). But again, if one cannot be held legally
responsible for any content in a data base, how can one claim a
copyright in it? You would claim the whole pile while absolving
yourself for liability for its bits and pieces? Maybe so, but I believe
you existing or wannabe registrars cannot have it both ways.
The steps you further outline following what I saved out above seem
quite appropriate, and those who drafted those terms, at least as I
understand them from a first reading, certainly seem to have had
the stability of the internet in mind. But many questions remain.
Bill Lovell
