[Air-l] ethics - aol data

[burkx006 at umn.edu]

On Aug 29 2006, Jeremy Hunsinger wrote:

>> Property is a word that has to be used very carefully -- I'm not  
>> sure that
>> the data can be called their property in any formal sense. It  
>> cannot (with
>> a couple of caveats) be the subject matter of patent or copyright.
>
>The collection a whole or in part as held as a whole in a database  
>could be copyrighted i thought.   Wasn't that a law that passed a few  
>years ago that we all protested, but it was pretty much passed  
>anyway?   I may be mistaken here, but I seem to recall that passing.

Copyright does not cover facts. It could cover the original selection and 
arrangement of facts, but an access log or similar compilation probably 
does not qualify as original in selection and arrangement -- it likely 
includes all the access data, in a format dictated by the technical 
architecture.

The EU member states and some other countries have a separate form of 
intellectual property covering databases in which there has been a 
substantial commercial investment. Recent decisions suggest that computer 
logs wouldn't qualify for that, either.

>here are what i thought they could do more or less:  Control the  
>data, Benefit or license access to the data, transfer or sell the  
>data, exclude others from the data.  those are all traditional  
>property rights... i think...  

They can do some of these things, but because of their property rights in 
their hardware/software -- not in the data. See the "horse is out of the 
barn" comment below.

>yes, i was not thinking trade secrecy, that would be an interesting  
>argument, but, I'm not sure it what would be a secret there, unless  
>it is the whole of the collection of data, because google like aol  
>has given access to parts of their data before.

For trade secrecy, the information must "not be generally known" to 
competitors.

>>For example, I don't think that AOL has any
>> ability to control use of the data they accidentally released.
>
>it wasn't an accidental release, was it.  I thought it was released  
>under license to researchers and then people re-released it.

My understanding was that the re-release was unintentional (on AOL's part, 
anyway). In any event, intentional or not, once it's out of the barn, they 
have no ability -- which is to say no property right -- to prevent its use 
by whomever happens upon it.

>> I am speaking at IASTED Law/Tech on a version such claims in the  
>> context of
>> "fantasy sports" data representations:
>> http://www.iasted.org/conferences/keynote-545.html
>
>there was just another lawsuit on that and baseball wasn't there?   
>that is a bit different I think because arguably all of the data that  
>you need to play fantasy sports can be found in your daily  
>newspaper.   

In each case, the question is the extent to which data about an individual 
maps onto the persona of the individual.

-- 
Dan L. Burk
Oppenheimer, Wolff & Donnelly Professor
University of Minnesota Law School
229 19th Avenue South
Minneapolis, MN  55455
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