Is There a Property Interest in Scientific Research Data

data. The cause of action most suited to protecting data is a form of unfair competition called "misappropriation" the taking of the fruit of 142. Sampson & Murdock Co. v. Seaver-Radford Co., 140 F. Supp. 539, 541 (1st Cir. 1905) (dictum) (concerning all arts and sciences); Rubin v. Boston Magazine Co., 645 F.2d 80, 84 (1st Cir. 1981) (limited protection of scientific material when used for scientific, scholarly, news reporting, or like purposes). Cf. 1 M. NIMMER, supra note 46, § 2.11[B], at 2-161 (public interest may justify copying substantial portions of literal form of expression of other kinds of factual works). 143. Atari, Inc. v. Amusement World, Inc., 547 F. Supp. 222, 228 (D. Md. 1981). 144. See Shipley & Hay, supra note 17, at 151. 474 HIGH TECHNOLOGY LAW JOURNAL Vol. 1:447 another's time and effort for competitive advantage. The United States Supreme Court first articulated the doctrine of misappropriation in International News Service v. Associated Press.145 In that case, the Court held actionable as misappropriation the conduct of a news-gathering organization in systematically copying and selling to clients fresh foreign news that another service had gathered abroad. The Court further held that the news service which had acquired the news items by its organized expenditure of labor, skill, and money had thereby acquired a quasiproperty interest in the news, which would be valid only while the news remained "hot." 146 The court observed that no one may claim a monopoly on the gathering or distribution of news which is only the report of information in the public domain, 147 but held that even if the competitor acknowledged the source of information, when the competitor endeavors "to reap where [he] has not sown," 148 the "transaction speaks for itself, and a court of equity ought not to hesitate long in characterizing it as unfair competition in business."149 The International News Service approach opens the possibility for the judicial recognition of quasi-property rights in scientific research data. The basis of the Court's recognition of a quasi-property right, however, does not appear to be significantly different from the "sweat of the brow" rationale for copyright in compilation cases. 150 Because this rationale has been rejected, 15 1 it should not be used as a basis for providing protection of raw data under the guise of quasi-property rights. In addition, raw scientific data may be sufficiently different from news so as not to justify the recognition of quasi-property rights in that data. Yesterday's news is old hat, so that the quasi-property right expires quickly. It is not nearly so simple to determine whether raw data is "hot" or "cold". Even if the "sweat of the brow" doctrine were revived, and a suitable test developed for applying quasi-property rights to raw data, the 145. 248 U.S. 215 (1918). 146. International News Service held that although: [n]either party has any remaining property interest as against the public in uncopyrighted news matter after the moment of its publication, it by no means follows that there is no remaining property interest in it as between themselves .... Regarding the news, therefore, as but the material out of which both parties are seeking to make profits at the same time and in the same field, we hardly can fail to recognize that for this purpose, and as between them, it must be regarded as quasi property, irrespective of the rights of either as against the public. Id. at 236. 147. Id. at 241. 148. Id. at 239. 149. Id. at 240. 150. See supra text accompanying notes 41-47 and 57-63. 151. See supra notes 47 and 49 and accompanying text. 1986 PROPERTY INTEREST IN SCIENTIFIC RESEARCH DATA 475 states would not automatically be able to provide such protection to researchers. One must first determine whether federal copyright law has preempted misappropriation doctrine, at least as it might apply to scientific research data. A. Doctrine of Preemption Section 301 of the 1976 Act provides that federal copyright law preempts all state law rights and causes of action that are "equivalent" to those protected by the federal Copyright Act. 152 Section 301(b) further provides that federal law does not preempt state causes of action