PRACTICAL & LEGAL PROTECTION OF COMPUTER DATABASES

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Article on Computer Databases Originally Published in the Florida Bar Journal in 1991 and updated in 1996. This article has not been updated since 1996, and so is obviously out of date. Still, I keep the article online because it contains good general background information on database law that may help attorneys and IT professionals to get started in this area.

 

Ralph C. Losey, Esq.
Copyright © Losey 1991, 1996

This article discusses both practical and legal methods of protecting a computer database from unauthorized copying and use. The intentional use of "seeds" and "signatures" in a database, when combined with the three main vehicles of legal protection: copyright, trade secrets and contract; can create a powerful defense against the "computer pirate."

WHAT IS A COMPUTER DATABASE?

The computer database is a new type of intellectual property of growing importance in today's world. Essentially it is a collection of information stored so that it can be selectively searched and the desired information retrieved using a computer. Pearson, Computer Databases: Copyright and Other Protection, in The Law and Business of Computer Software § 22.02 (D.C. Toedt ed. 1990). As society moves further into the informational age the significance and dollar volume of database products should increase. Since this is a relatively new type of property, American law is having to rapidly evolve and create new standards and legal principles to try and protect against its misuse and theft.

Databases have long existed in manual or book form. Contemporary examples of manual databases still abound, such as the phone book and many reference books, including legal reporters. The computer database is essentially an information compendium like a phone book which has been placed in a computer and thereby automated. When information is computerized, however, there are many more ways for the information to be accessed, manipulated and used; the value of the database to users is thereby greatly enhanced. Some popular examples of computer databases include legal databases such as Westlaw and Lexis, and various business and scientific databases such as those found on Dialog and Inter-Net.

The United States Copyright Office in its publication Circular 65: Copyright Registration for Automated Databases defines an automated database as, "a body of facts, data, or other information assembled into an organized format suitable for use in a computer and comprising one or more files." The federal Copyright statutes do not yet specifically list automated databases as a copyrightable subject matter. 17 U.S.C. § 101, § 102. Nevertheless, the Copyright Office follows case law and allows a computer database to be copyrighted as a literary work, even though they are not specifically included in the statutes. See, e.g., Lane v. First Nat. Bank of Boston, 687 F.Supp. 11 (D.C. Mass. 1988).

The Copyright Office considers a computer database to be copyrightable as a "compilation". The law defines compilation as a work:

  • [F]ormed by the collection and assembling of preexisting materials or of data that are selected, coordinated or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.

17 U.S.C. § 101. Federal copyright law extends copyright protection to compilations as a form of literary work. 17 U.S.C. § 103. In addition to computer databases, a compilation can be a collective work such as a periodical, anthology and encyclopedia, or a reference work such as a directory, index, map, telephone book, guide book, law reporter, catalog, chart, or racing guide.

The "literary work" in a computer database which may be protected is composed of four parts: (1) selection of the contents; (2) the coordination of the contents internally; (3) the arrangement of all of all elements of the database; and, (4) the contents itself. L. Kutten, Computer Software, § 2.08A(2)(c)(i), (1990). The copyright of a compilation may extend to one of these parts without including the others.

WHY A DATABASE CAN BE HARD TO LEGALLY PROTECT

Under traditional concepts of literary copyright, the data contained in a compilation (part four), and the selection of the data (part one), may sometimes not be protected from copying. Only the coordination and arrangement of the database may be protected, and even then there must be some originality to the collection and arrangement for it to be protected. See, e.g., 17 U.S.C.A. § 103 and cases cited therein. When a database is composed of facts, these facts frequently cannot be copyrighted, for otherwise the public's right to use information in the public domain would be unreasonably limited. A recent case involving baseball pitcher statistics sheds an interesting light on this issue. Kregos v. Associated Press, 731 F.Supp. 113, 117 (S.D.N.Y. 1990), partially rev'd on other grounds, 937 F.2d. 700 (2d. Cir. 1991), on remand 795 F.Supp. 1325, (S.D.N.Y. 1991), aff'd, 3 F.3d. 656 (2d. Cir. 1993). District Judge Goettel's colorful introductory remarks on remand are a sad, but true, commentary on our over litigious society.

The basic problem in protecting a database is that the information compiled is frequently public knowledge, just facts, or the data is otherwise not susceptible of ownership by the compiler of the database. For example, a person could call every attorney in the country and ask if they specialized in computer law. The names and addresses of those who said yes could then be put into a database of computer lawyers. Does the preparer of this database own the names and addresses of these attorneys? The attorneys involved would certainly deny this, so what does the preparer of this database own? What can he keep another from copying and selling as his own? The way the information about attorneys is arranged in the database might involve little or no originality and, thus, even this aspect of the database might not be protectable. For instance, it might be a simple alphabetical list. The person who has gone to the time and trouble to call all of the attorneys in the country and cull this information wants to be able to prevent someone from simply taking this information from him. If someone is going to compete with him and sell a rival list of computer lawyers, then the first person would want his competitor to go to the same time, effort and expense that he did to come up with these names.

Since the names and addresses of the attorneys are not susceptible to ownership, a competitor certainly could call up all of the attorneys in the country and, assuming he got the same answers, come up with the same list. This would unquestionably be fair competition, and the first person who thought of the idea of compiling a list of computer attorneys would not be able to stop it. Mazer v. Stein, 347 U.S. 201, 74 S.Ct. 460, 98 L.Ed 630 (1954) (distinguishes copyrights from patents and holds that copyright protects particular expressions of ideas, but not the ideas themselves). As we will see, in some circumstances a would be competitor might also be able to simply take the information compiled by the first pioneer at great expense and trouble, and this taking would be perfectly legal. Protection of raw data is legally tricky, and the first pioneer can frequently lose out if they are not careful.

There are essentially three ways to legally protect computer databases: copyright, trade secret and contract. Ideally, all three of these legal means can be employed, along with practical non-legal methods, to provide the maximum protection against the piracy of a database program. There are, of course, other legal theories that could be argued in a law suit to protect databases, such as unfair competition and conversion; however, these theories may be preempted by copyright law. See Southern Bell Tel. & Tel. v. Associated Telephone Directory Publishers, 756 F.2d 801, 810 n. 9 (11th Cir., 1985) (unfair competition); Pearson, supra, at § 22.07 (misappropriation theories and preemption). Copyright law provides the framework and basic foundation for legal protection. It is, therefore, discussed first.

COPYRIGHT LAW

Copyright law originates in Article 1, § 8 of the Constitution of the United States which says that Congress shall have the power:

  • To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right in their respective Writings and Discoveries.

To implement this constitutional right Congress enacted copyright and patent laws. The copyright law was written to protect "original works of authorship." 17 U.S.C. § 102. Annotation, Supreme Court's Views as to When Books or Other Written or Printed Materials are Copyrightable Under Federal Law, 113 L.Ed.2d. 771 (1991).

Over the centuries Courts have examined whether or not a work has "originality" to determine if it may receive copyright protection. Kamar Int'l v. Russ Berrie & Co., 657 F.2d 1059, 1061 (9th Cir. 1981) (originality is the sine qua non of copyrightability). Originality requires an author to contribute something more than a "merely trivial" variation which is recognizably "his own." Id. Under traditional copyright doctrine a work must show some "creativity" in order to meet the originality test, and it is not subject to copyright if the work merely copies an existing work. See Copyright Protection For Citations To A Law Reporter, Intellectual Property Law Review, at 444-56, (Norris ed., 1988).

This essential element of "creativity" is weak or completely absent in many manual reference works or computer databases. For example, what creativity is there in an alphabetical listing of names in a phone book?

Another basic problem in protecting a database is that copyright law does not prohibit the copying of facts, even newly discovered or expensively acquired facts, nor does it prohibit the copying of ideas. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556, 105 S.Ct. 2218, 85 L.Ed.2d. 588 (1985); Kregos v. Associated Press, 937 F.2d 700, 703-10 (2nd Cir., 1991); Mazer v. Stein, 347 U.S. 201, 74 S.Ct. 460, 98 L.Ed. 630 (1954). Copyright law can only provide protection to the arrangement and coordination of facts in a database. Even then, there must be some originality to the collection and arrangement for it to be protected. See, e.g., 17 U.S.C.A. § 103 and cases cited therein.

Typically the preparation of a database requires a significant expenditure of time, effort and money to cull and select information from many different sources, but little or no original creativity to express the facts, or arrange them. In these circumstances, where the compiler gathers and compiles raw facts, he did not create the facts, he just discovered or uncovered them, sometimes at great expense and trouble. Such was the case in our earlier example of the poor investigator who had to call every attorney in the country to see if they practiced computer law. So how can you prevent copying of the work?

In order to lend copyright protection to merely factual databases, some courts have tried to move away from a strict application of the creativity test, to also employ an "industriousness" or "sweat of the brow" test to determine if the database is an "original" enough work to be afforded copyright protection. Southern Bell Tel. & Tel. v. Associated Telephone Directory Publishers, 756 F.2d 801, 809 (11th Cir. 1985). These Courts, spearheaded by Judge Learned Hand, found "originality" from the "labor and expense" necessary to make the compilation, rather than from any real "creativity" of the author. Id.; Jeweler's Circular Publishing Co. v. Keystone Publishing Co., 274 F. 932 (S.D.N.Y. 1921) (L. Hand, J., the first express "industriousness" standard case), aff'd, 281 F. 83 (2d. Cir. 1922), cert. denied, 259 U.S. 581, 42 S.Ct. 464, 66 L.Ed. 1074 (1922); West Publishing Co. v. Mead Data central, Inc., 799 F.2d 1219 (8th Cir. 1986); Pearson, supra, at § 22.04.

Under the sweat of the brow doctrine, copyright could prevent the unauthorized copying of facts in a database, if the compiler could show that sufficient effort went into the acquisition and selection of the data to make it original. The protection would lie even if the information compiled was public knowledge or otherwise not protected. Southern Bell Tel. & Tel., 756 F.2d at 810.

Other Courts, however, continued to analyze a database dispute by using traditional concepts of creativity, and criticized the "sweat of the brow" standard. Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1369 (5th Cir. 1981); Lane v. First Nat. Bank of Boston, 687 F.Supp. (D.C. Mass. 1988). In the words of the Second Circuit Court of Appeals:

  • To grant copyright protection based merely on the "sweat of the author's brow" would risk putting large areas of actual research material off limits and threaten the public's unrestrained access to information.

Financial Information, Inc. v. Moody's Investors Service, Inc., 808 F.2d 204, 207 (2d. Cir. 1986), cert. denied, 484 U.S. 820, 108 S.Ct. 79, 98 L.Ed.2d. 42 (1987).

A recent unanimous decision of the United States Supreme Court has followed the Miller line of cases and sounded the death knell to Learned Hand's sweat of the brow doctrine. Feist Publications, Inc. v. Rural Telephone Services Co., Inc., 499 U.S. 340, 111 S.Ct. 1282, 113 L.Ed.2d. 358 (1991).

In Feist the compilation was manual, it was the phone book, for which the phone company had made a valid copyright registration. The alleged infringer, Feist Publications, was found to have copied large portions of the white pages from Rural Telephone Services Companies phone book. Feist Publication's repetition of four fictitious listings, or seeds, which Rural Telephone had planted in their white pages helped to prove the copying. Feist Publications included the names and addresses from Rural Telephone's white pages in its competing phone books. Rural Telephone argued that the white pages listing of names and addresses in its phone book, although admittedly facts, was still entitled to copyright protection. It contended that its efforts to obtain and select these facts should be protected, and that its competitor, Feist Publications, should be required to go to the same effort to obtain the information, and should not be allowed to benefit from its research and just copy the information. Feist Publications, 499 U.S. at. 343-44.

The trial court agreed with the arguments of Rural Telephone and entered a judgment for copyright infringement in favor of Rural Telephone. Rural Telephone Service Co., Inc. v. Feist Publications, Inc., 663 F. Supp. 214, 218 (1987). In an unpublished opinion the Tenth Circuit Court of Appeals affirmed, but the Supreme Court reversed holding:

  • The 'sweat of the brow' doctrine had numerous flaws, the most glaring being that it extended copyright protection in a compilation beyond selection and arrangement - the compiler's original contribution - to the facts themselves. . . 'Sweat of the brow' courts thereby eschewed the most fundamental axiom of copyright law - that no one may copyright facts or ideas. . .[T]hey handed out proprietary interests in facts and declared that authors are absolutely precluded from saving time and effort by relying on facts contained in prior works.

Feist Publications, 499 U.S. at 353-54.

The Supreme Court held that the white pages portion of the phone book was not entitled to copyright protection, even though the rest of the book was. Therefore, Feist Publications, and anyone else, was free to copy the white pages. As Justice O'Connor concluded in her unanimous opinion:

  • Because Rural's white pages lack the requisite originality, Feist's use of the listings cannot constitute infringement. This decision should not be construed as demeaning Rural's efforts in compiling its directory, but rather as making clear that copyright rewards originality, not effort.

Id. at 364.

The following decisions occurred after Feist and applied its doctrine in several interesting factual scenarios: Arica Institute, Inc. v. Palmer, 970 F.2d 1067 (2d. Cir. 1992); Key Publications v. Chinatown Today Pub. Ent., 945 F.2d 509 (2d. Cir. 1991); Victor Lalli Enterprises v. Big Red Apple, Inc., 936 F.2d 671 (2d. Cir. 1991); Mason v. Montgomery Data, Inc., 967 F.2d 135 (5th Cir. 1992); BellSouth Advertising & Pub. v. Donnelley Inf. Pub., 933 F.2d 952 (11th Cir. 1991); BellSouth Adv. & Pub. Corp. v. Donnelley Info. Pub., 999 F.2d 1436 (11th Cir. 1993); Cable News Network v. Video Monitoring Services, 940 F.2d 1471 (11th Cir. 1991).

Now that the sweat of the brow doctrine is dead, it is clear that raw facts in a database may not be protected by copyright, regardless of the time or expense that went into locating them. Still, in many databases the data itself, or the particular expressions of the facts, may have been created by the author. In such cases the data has originality and can be protected. An example of this which is used by the Copyright Office is a full text bibliographic database. There the author not only selects the particular books to be included in the bibliography, he or she also writes their own description as to each of the books. Since the author created the entire contents of the database, both the selection and compilation aspect of the database, and the contents of the database, are subject to copyright protection.

Even if the contents are raw facts, not new materials created by the author, the compilation aspects of the database (selection, coordination and arrangement) may still receive copyright protection. Copyright law prevents the copying of the coordination and arrangement of the facts, the format of data presentation and manipulation, provided that the format and means are original. This entails a consideration as to whether the coordination and arrangement are novel and unique, or whether the arrangement itself contains information.

Not all compilations will meet the minimal originality standard. For example in the Feist Publications case the Supreme Court held that the alphabetical arrangement of names in the white pages was not entitled to copyright because: "there is nothing remotely creative about arranging names alphabetically . . . It is not only unoriginal, it is practically inevitable." Feist Publications, 499 U.S. at 363. This is similar to another copyright doctrine which is important to computer law: "functionality," whereby an aspect of a computer program will not be protected by copyright if it is merely utilitarian, rather than original. Lotus Development Corporation v. Paperback Software International, 740 F.Supp. 37, 52-58, 68 (D.C. Mass. 1990) (Lotus 123 interface was an original expression entitled to copyright and was not merely a utilitarian function).

There are a number of other drawbacks and limitations to copyright protection. For instance, if not properly perfected and registered a copyright can be waived and the work may enter the public domain. Also, there are certain exceptions to copyright, such as exceptions based on the "fair use" rule. L.Kutten, Computer Software, § 2.07(4)(c) and § 2.08A(2)(c)(iii), (1990); Dow Jones & Co. v. Board of Trade of the City of Chicago, 546 F. Supp. 113 (S.D.N.Y. 1982); Telerate Systems, Inc. v. Caro, 689 F.Supp. 221 (S.D.N.Y. 1988); Campbell v. Acuff-Rose Music, Inc., 510 U.S. _____, 127 L.Ed.2d. 500, 114 S.Ct. 1164 (1994).

Another drawback pertains to the deposit requirements of copyright registration. 37 C.F.R. § 202.20(C)(2)(vii). Printouts of the program source code and the database must be included with the registration. If the program is IBM-PC or Apple Macintosh compatible, and is recorded on CD-ROM or diskette, then under the Best Edition Statement supplement to the rules, you must submit both the printout of the code and data and the software itself. There are however ways around these deposit requirement by which you can protect the disclosure of trade secrets.

Another practical problem with the deposit requirement is that some databases are continually changing and being updated, and thus the deposits and registrations must continue. Although group registration on a quarterly basis is now permitted by the Copyright Office in certain circumstances to try and obviate this problem, several technical problems with such periodic group registrations remain.

Another drawback in relying on copyright protection alone is that your copyrights can be weakened or waived if proper copyright procedures are not followed. Such procedures include the proper fixation and display of copyright notices and the registration of the copyright with the Copyright Office. The procedures and steps involved in registration of a computer database copyright can be complicated and involved, particularly when trade secret information is involved. L.Kutten, Computer Software, § 2.08A(4),(5),(6),(8), (1990). For this reason it is suggested that the assistance of competent computer law counsel be retained to assist in this process.

With copyright law providing only limited protection to databases, and with all of the other problems inherent in copyright protection of a database, contract and trade secret law become all the more important to try and prevent the unauthorized copying of factual data in a database.

TRADE SECRECY PROTECTION

Adding trade secrecy protection to a database can provide significantly greater legal rights. Consider for instance a case in Florida where the jury found that the defendant Florida Power and Light Co. had stolen the plaintiff's trade secrets and awarded damages of $1.6 million. Florida Power & Light v. Util. Services, 550 So. 2d 13 (Fla. 3rd DCA 1989). Under the state's civil theft law, this award was then trebled, for a total judgment against the utility of $4.8 million.

Essentially a trade secret is knowledge which a person or company acquires through its own efforts and which has some value to it. Typically, this knowledge is kept secret from competitors because it is felt that this information provides some type of competitive advantage.

The Uniform Trade Secrets Act has now been enacted by most of the states in the country. Unif. Trade Secrets Act, 14 U.L.A. 541 (1980). Section 1(4) of the Act defines a trade secret to mean:

  • [I]nformation, including a formula, pattern, compilation, program, device, method, technique or process that: (a) derives independent economic value, actual or potential, not being generally known to, not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Apart from state statutes, trade secrecy protection has long existed as part of the common law. Restatement of Torts, § 757 (1939); Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d. 315 (1974); Cataphote Corp. v. Hudson, 444 F.2d 1313 (5th Cir. 1971); Forest Laboratories v. Pillsbury Co., 452 F.2d 621 (7th Cir. 1971); See also Callman, Unfair Competition, Trademarks & Monopolies, Ch. 14 (4th Ed.).

Since a computer database is a compilation which derives economic value, it is a type of intellectual property which has frequently received trade secrecy protection. Whether or not a court will find that a database is legally a trade secret frequently depends upon whether the compiler made reasonable efforts to maintain its secrecy. Telerate Systems, Inc. v. Caro, 689 F.Supp. 221, 232 (S.D. N.Y. 1988) (Describes sufficient efforts taken to protect computer trade secrets).

Many of the trade secret cases involve a dispute between an employer and former employee over a compilation of data, namely a customer list. Customer List As a Trade Secret, 28 A.L.R.3d. 17. Many employers consider their customer list to be their most valuable trade secret. Thus, when an employee leaves and takes the list with him to compete against an employer, a suit frequently follows to have an injunction entered to make the employee return the list and not use those trade secrets.

Information will be protected as a trade secret, even where there is no express contract requiring non-disclosure of the information, where based upon the nature of the information and the confidential relationship between the parties, such as employer- employee, equity should imply such an agreement. Conversely, if parties have a written contract to treat certain information as a trade secret, and not to disclose it, then even if the information does not legally qualify as a trade secret, the parties may still be required to keep it secret. Without such an agreement, however, the information in question must legally qualify as a trade secret to be entitled to protection.

When a database is licensed to others, and there is no confidential relationship, the data may still have and retain a trade secrecy status, if it is sold with the express condition that the purchaser of the database maintain the secrecy of theinformation.

PROTECTION BY CONTRACT

A seller of the database can require that any purchaser enter into a written contract as a condition of purchase of the database. Using our example, the purveyor of the computer lawyer database could refuse to sell this information to anyone unless they first sign a written contract. That written agreement could expressly provide that the purchaser will not disclose the list of computer lawyers to anyone but authorized users, nor make any copies or unauthorized use of the information. Typically this takes the form of a License Agreement between the preparer/licensor of the database and the user/licensee of the database.

A License Agreement is unlike a typical purchase and sale agreement in that ownership of the product involved, the program, remains in the licensor. The licensee merely purchases the right to use the program. The licensee's right to use the program can be limited in any number of ways. The most important limitations typically are that licensee can only use the program on one or a select number of computers, the licensee may not make any copies of the program, and the licensee has to keep confidential certain information about the program or the database. Many other types of limitations or rights and reservations can be contained within the license agreement between the parties.

PRACTICAL MEANS OF PROTECTION

Since the law and Courts in general are struggling to keep up with the rapid changes in technology, a preparer of a database is well advised to try and strengthen his legal hand as much as possible with certain practical protection measures. There are methods which a programmer can employ to try and prevent someone from simply copying his work, or if they do, to make proof of this copying in Court far easier. Without the conscious employment of these methods it may be difficult to know whether or not a competitor has "cheated," and simply copied your information, or has come up with the same information on his own.

The solution to this problem is the deliberate placement of errors or omissions in your database. If your competitor's database contains the same errors or omissions, then you have pretty good evidence that your database was copied. The odds are astronomical against a second database happening to come up with the same errors and omissions as the first. So, for example, if you deliberately use the wrong middle initial on a few of the computer lawyers and these same wrong middle initials show up on a competitors database, then you have good proof that a competitor did not independently derive the same information. He took yours.

The placement of deliberate errors and omissions in a program is known as the placement of "seeds" into a database, or "salting" a database. See Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 892 F.2d 802 (9th Cir., 1989) (interesting case which concerns seeds and the fraudulent attempt of one database compiler to trick another into repeating mistakes); Rockford Map Pub. v. Dir. Service Co. of Colorado, 768 F.2d 145, 147 (7th Cir., 1985) (Phony middle initials of names on a map spelled out Rockford Map Inc. when read from top of the map to the bottom; copyright infringement found); Financial Information v. Moody's Investors Service, 808 F.2d 204 (2d. Cir., 1986) (despite proof of copying by repetition of false information planted in a bond database, no infringement was found because the database required no originality or creativity. The database was therefore not protected by copyright).

Although a clever "pirate" might detect and eliminate or correct some seeds in a salted database, if the database is large enough and the original compiler/salter clever enough, it is unlikely that a pirate will ever catch them all. These seeds will provide the best evidence of copying. They will bloom at the time the pirate is sued and this evidence is placed before the Judge deciding the case.

Even if you do not deliberately salt your database, errors will occur naturally anyway if the database is large enough. So in addition to deliberately adding some harmless errors, when and if accidental errors are discovered, they should also be carefully documented or recorded. When subsequent revised additions of the database are made, not all errors should be corrected. There should always be subtle and harmless errors that are well documented in order to have the seeds necessary to protect a database. Southwestern Bell Media v. Trans World Pub., Inc., 670 F.Supp. 899 (D.C. Kan. 1987) (Copying proven by showing that 29 out of 32 unintentional errors contained in first telephone book were repeated in the second).

Errors or seeds in a database occur whether the database is manual or computerized. Any phone book contains some errors in it which can be pointed to if a competing phone book should attempt to copy the information, rather than develop it on its own. In computer databases, however, there is an additional element which can be used to prove copying which I refer to as a computer "signature." This signature pertains to the computer code or programming itself used to record the information and the program which manipulates the information.

Thus, if someone simply copies a program the coding which embodies the program will sometimes also be copied. A programmer naturally has a certain signature or style of his way of programming. This is equivalent to a style of writing. Unlike writing novels, however, a programmer has the opportunity to deliberately implant hidden but recognizable signatures in his work. Thus, for instance, he could add unnecessary lines of code or encrypt messages in object code that would be very difficult to detect. These deliberate idiosyncracies can be documented and can again provide excellent proof that there has been a wholesale copying of the program.

The pirate can avoid signatures by having the database print out in hard copy form and then re-entering the data into his own program from the hard copy. If, however, the pirate wants to take the short cut of copying the program in electronic form, then he may fall victim to hidden computer signatures. This is particularly true if the pirate not only steals the database but also attempts to steal the program created to organize, manipulate and display the data.

Some database products consist only of the database itself and the user displays this database on his own program. For instance, the names and addresses of computer lawyers could be typed in a WordPerfect file. The purchasers of a database would thus have to use their own WordPerfect program in order to view the information. In other types of database programs, the information is sold along with a program which allows you to view and manipulate the data. In this case it is a "stand alone" program which does not require another program to view it. So, instead of having to load a list of the lawyers names and addresses into WordPerfect, under such a stand alone program you would simply run the program and it would display the names and addresses by itself.

When the database program is a stand alone type with its own display and manipulation capabilities, then there are far more opportunities to place signatures in the programming itself. Further, the copy protection strategy that is applicable to all types of software can apply. For instance, the data or the program itself can be encrypted to make copying useless without the decryption code or program.

Also, standard non-copying protection can be imposed upon the program itself. This makes it difficult for most users to ever make a copy of the program. Still, as every computer buff knows, for every good copy protection scheme there is another good "unprotection" scheme. In other words, a skilled programmer can find a way around such practical copy protection schemes. The ability of one programmer to rise to the technical competence of another, and frustrate such practical protection schemes, makes legal protection all the more important.

CONCLUSION

Although copyright protection is important and should almost always be pursued, in any license of a computer database of significant value, copyright protection alone should not be relied upon to prohibit unauthorized copying. As the Feist case makes clear, copyright may not apply to protect the data. Trade secrecy protection and an express written agreement between the vendor and consumer are necessary to try and protect the database. If, as expected, information continues to grow in value and importance as a commodity in our society, then the proliferation of license and secrecy agreements is likely.

 


 

Now ready to check out the more colorful You Tube version of Database?