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From page 26... ... PROTECTION OF REAL-TIME DATA UNDER vents authorized access to a wire or electronic commuOTHER FEDERAL AND STATE LAWS nication while it is in electronic storage...." Section 2701 prohibits only unauthorized access and not the misappropriation or disclosure of information.302 A Electronic Communications Privacy Act The Electronic Communications Privacy Act (ECPA) Read the entire page →
From page 27... ... of the SCA prohibits volun- and recklessly causes damage or causes damage320 and tary disclosure of a customer's electronic data by per- by such conduct caused or would have caused "loss to 1 sons or entities providing an electronic communication or more persons during any 1-year period...aggregating service311 or providing a remote computing service to the at least $5,000 in value...."321 public. Although the term "damage" under the statute Although the SCA provides for criminal liability, an means "any impairment to the integrity or availability aggrieved party may bring a civil action for a violation of data, a program, a system, or information,"322 a defenof the Act, subject to a 2-year statute of limitations,312 dant's alleged access to and disclosure of trade secrets and recover actual damages and "any profits made by a may constitute "an impairment [of] Read the entire page →
From page 28... ... tate statutes presently commerce clause grounds.... Indeed, the Third Circuit serve a more important role than federal law in prohib- has expressed doubt as to whether state common law 335 iting illegal behavior with computers because many claims could violate the dormant commerce clause." state legislatures have enacted laws with broader protection than provided at the federal level."327 For exam- Guidance Number 16 ple, by statute in California a plaintiff may sue for State law may provide remedies if an unauthorized damages328 when someone party obtains access to, copies, and/or distributes an agency's real-time data or exceeds its authorization or (2) Read the entire page →
From page 29... ... 337 Smith, supra note 22, at 722 n.138. There also may be an issue of whether a state's trade 338 Uniform Trade Secrets Act 1, available at: http://euro. Read the entire page →
From page 30... ... other civil remedies that are not ized to use the information.363 Under UCITA "any inforbased upon misappropriation of a trade secret...."356 Of mation transaction that transfers fewer than all rights course, a trade secret statute does not preclude other in the information is automatically deemed to be a licivil remedies for misappropriation of confidential in- cense, regardless of whether title to a copy is transformation if the information is not a trade secret under ferred."364 the applicable statute.357 According to the Task Force, another reason that UCITA is a better fit is that the Act "establishes rules Guidance Number 17 where none exist now or improves present law, and Any information may qualify as a trade secret, but represents the first comprehensive uniform computer access to the information must be limited and disclosed information licensing law."365 Although UCITA and only in confidence to preserve a later claim for misap- UCC's Article 2 are similar in many ways,366 UCITA's propriation. However, a claim under state law for mis- provisions are more favorable to licensors even when appropriation of trade secrets could be preempted by the licensees are businesses.367 Nevertheless, because of the Copyright Act if the claim is merely, for example, opposition by various groups to UCITA, only Virginia for unauthorized copying. Read the entire page →
From page 31... ... the "exclusive rights of copyright law,"387 that there is no UCITA offers compilers the opportunity to `legislate' preemption because a "contractual restriction constiprotection of their products through mass market li- tutes the `extra element' needed to avoid preemption,"388 censes whose terms are so pervasive as to establish and that copyright law affords one "rights against the rights `good against the world.'"376 world," whereas a private contract affects only the Those taking a preemptionist position, including committees of the New York City Bar Association, have 377 THE COMMITTEE ON COPYRIGHT AND LITERARY PROPERTY, argued that UCITA's provisions conflict with the Copy- THE COMMITTEE ON COMMUNICATIONS AND MEDIA LAW, AND right Act, interfere with federal policy for having a uni- THE COMMITTEE ON ENTERTAINMENT LAW, A Proposal of the form national copyright law, and sanction "restrictions National Conference of Commissioners on Uniform State Laws on copying and other uses that copyright law permits" to Adopt a Proposed Uniform Computer Information Transac tions Act, 54 THE RECORD 784, 786 (1999) , hereinafter cited as "N.Y. Read the entire page →

From page 26...

... PROTECTION OF REAL-TIME DATA UNDER vents authorized access to a wire or electronic commuOTHER FEDERAL AND STATE LAWS nication while it is in electronic storage...." Section 2701 prohibits only unauthorized access and not the misappropriation or disclosure of information.302 A Electronic Communications Privacy Act The Electronic Communications Privacy Act (ECPA)

Read the entire page →

From page 27...

... of the SCA prohibits volun- and recklessly causes damage or causes damage320 and tary disclosure of a customer's electronic data by per- by such conduct caused or would have caused "loss to 1 sons or entities providing an electronic communication or more persons during any 1-year period...aggregating service311 or providing a remote computing service to the at least $5,000 in value...."321 public. Although the term "damage" under the statute Although the SCA provides for criminal liability, an means "any impairment to the integrity or availability aggrieved party may bring a civil action for a violation of data, a program, a system, or information,"322 a defenof the Act, subject to a 2-year statute of limitations,312 dant's alleged access to and disclosure of trade secrets and recover actual damages and "any profits made by a may constitute "an impairment [of]

Read the entire page →

From page 28...

... tate statutes presently commerce clause grounds.... Indeed, the Third Circuit serve a more important role than federal law in prohib- has expressed doubt as to whether state common law 335 iting illegal behavior with computers because many claims could violate the dormant commerce clause." state legislatures have enacted laws with broader protection than provided at the federal level."327 For exam- Guidance Number 16 ple, by statute in California a plaintiff may sue for State law may provide remedies if an unauthorized damages328 when someone party obtains access to, copies, and/or distributes an agency's real-time data or exceeds its authorization or (2)

Read the entire page →

From page 29...

... 337 Smith, supra note 22, at 722 n.138. There also may be an issue of whether a state's trade 338 Uniform Trade Secrets Act 1, available at: http://euro.

Read the entire page →

From page 30...

... other civil remedies that are not ized to use the information.363 Under UCITA "any inforbased upon misappropriation of a trade secret...."356 Of mation transaction that transfers fewer than all rights course, a trade secret statute does not preclude other in the information is automatically deemed to be a licivil remedies for misappropriation of confidential in- cense, regardless of whether title to a copy is transformation if the information is not a trade secret under ferred."364 the applicable statute.357 According to the Task Force, another reason that UCITA is a better fit is that the Act "establishes rules Guidance Number 17 where none exist now or improves present law, and Any information may qualify as a trade secret, but represents the first comprehensive uniform computer access to the information must be limited and disclosed information licensing law."365 Although UCITA and only in confidence to preserve a later claim for misap- UCC's Article 2 are similar in many ways,366 UCITA's propriation. However, a claim under state law for mis- provisions are more favorable to licensors even when appropriation of trade secrets could be preempted by the licensees are businesses.367 Nevertheless, because of the Copyright Act if the claim is merely, for example, opposition by various groups to UCITA, only Virginia for unauthorized copying.

Read the entire page →

From page 31...

... the "exclusive rights of copyright law,"387 that there is no UCITA offers compilers the opportunity to `legislate' preemption because a "contractual restriction constiprotection of their products through mass market li- tutes the `extra element' needed to avoid preemption,"388 censes whose terms are so pervasive as to establish and that copyright law affords one "rights against the rights `good against the world.'"376 world," whereas a private contract affects only the Those taking a preemptionist position, including committees of the New York City Bar Association, have 377 THE COMMITTEE ON COPYRIGHT AND LITERARY PROPERTY, argued that UCITA's provisions conflict with the Copy- THE COMMITTEE ON COMMUNICATIONS AND MEDIA LAW, AND right Act, interfere with federal policy for having a uni- THE COMMITTEE ON ENTERTAINMENT LAW, A Proposal of the form national copyright law, and sanction "restrictions National Conference of Commissioners on Uniform State Laws on copying and other uses that copyright law permits" to Adopt a Proposed Uniform Computer Information Transac tions Act, 54 THE RECORD 784, 786 (1999) , hereinafter cited as "N.Y.

Read the entire page →

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