Symposium: The Digital Millennium Copyright Act at 20 Texas A&M University School of Law March 24, 2018

1. DATA MODELS
AND THE DMCA
Michael J. Madison
University of Pittsburgh School of Law
Symposium: The Digital Millennium Copyright Act at 20
Texas A&M University School of Law
March 24, 2018

2. What’s a data model?
What do data models
have to do with the
DMCA?
(given the absence of © or sui generis rights in
databases)

3. What’s a data model
(a/k/a data structure)?
No: “data,” not “algorithms,” not “Big Data”
Yes: A data model determines the structure of
data to be collected, stored, analyzed, shared,
and processed, on their own and in relationships
with data collected, etc. in other contexts.
I.e.: an abstract, formal model that organizes
elements of data and standardizes how they
relate to each other and to real world entities
they represent, and (also) a set of concepts used
define the formal model.

4. Example (old):
P.O. Boxes
“Data resides in computer memory. It is easiest to visualize
computer memory as being like a wall of post office boxes. Each
box has a unique numerical ‘address,’ but the content of each
box can be changed at will. The computer's central processing
unit (‘CPU’) can look at a location in memory specified by the
address and retrieve the piece of data residing there.
Alternatively, the CPU can store a piece of data at a given
address. One part of a program organizes the data in such a way
that the other part, which embodies the algorithm, can work with
it. The more sophisticated the data organization, the more
opportunity there is to employ sophisticated algorithms that run
faster and do more. This organization is referred to as a data
structure.”
Marci A. Hamilton & Ted Sabety, Computer Science Concepts in Copyright Cases: The Path to a
Coherent Law, 10 Harv. J.L. & Tech. 239, 254 (1997)

5. Example (new):
Big Mechanism (DARPA)
B.M. “aims to develop technology to read research abstracts and
papers to extract pieces of causal mechanisms, assemble these
pieces into more complete causal models, and reason over these
models to produce explanations. The domain of the program is
cancer biology with an emphasis on signaling pathways.
Although the domain of the Big Mechanism program is cancer
biology, the overarching goal of the program is to develop
technologies for a new kind of science in which research is
integrated more or less immediately—automatically or semi-
automatically—into causal, explanatory models of
unprecedented completeness and consistency. Cancer pathways
are just one example of causal, explanatory models.”
(https://www.darpa.mil/program/big-mechanism)

6. Big Mechanism (DARPA)
illustrated:
“Just when we need to understand highly connected
systems as systems, our research methods force us to
focus on little parts.”
Paul Cohen, DARPA Program Manager (now Dean, Pitt
School of Computing and Information)
Google Books + JSTOR +
PubMed Central + GenBank

7. What do data models have to
do with the DMCA?
Solving interoperability concerns when data
models are accessed, copied, modified, &/or
distributed -- rather than dealing with scraping,
piracy, & harvesting:
1. Protectable works (Section 102(a)/(b))?
2. Deals (e.g., ToU/ToS)?
3. Open access (e.g., NIH Public Access Policy)?
4. Fair use (Section 107/Google Books)?
5. Anti-hacking (CFAA/HiQ v LinkedIn)?
6. Interoperability under DMCA Section 1201(f)?

8. DMCA: Interoperability
as a limited exception
§1201 (f) Reverse engineering.--(1) Notwithstanding the provisions of subsection (a)(1)(A), a person
who has lawfully obtained the right to use a copy of a computer program may circumvent a
technological measure that effectively controls access to a particular portion of that program for
the sole purpose of identifying and analyzing those elements of the program that are necessary to
achieve interoperability of an independently created computer program with other programs, and
that have not previously been readily available to the person engaging in the circumvention, to the
extent any such acts of identification and analysis do not constitute infringement under this title.
(2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ
technological means to circumvent a technological measure, or to circumvent protection afforded
by a technological measure, in order to enable the identification and analysis under paragraph (1),
or for the purpose of enabling interoperability of an independently created computer program with
other programs, if such means are necessary to achieve such interoperability, to the extent that
doing so does not constitute infringement under this title.
(3) The information acquired through the acts permitted under paragraph (1), and the means
permitted under paragraph (2), may be made available to others if the person referred to in
paragraph (1) or (2), as the case may be, provides such information or means solely for the
purpose of enabling interoperability of an independently created computer program with other
programs, and to the extent that doing so does not constitute infringement under this title or
violate applicable law other than this section.
(4) For purposes of this subsection, the term “interoperability” means the ability of computer
programs to exchange information, and of such programs mutually to use the information which
has been exchanged.

9. Interoperability
as a social good
Technical (software/hardware) interoperabilty
Sega v. Accolade (9th Cir. 1992); Lexmark Int’l v. Static Control
Components (6th Cir. 2004); Chamblerain Group v. Skylink Techs. (Fed. Cir.
2004); Oracle v. Google (Fed. Cir. 2014) (?)
(DMCA Section 1201(f) speaks to this; we try to limit © application to
system functions)
HCI (human) interoperability
Lotus v. Borland (1st Cir. 1995); Oracle v. Google (Fed. Cir. 2014) (?)
(DMCA is silent; © lacks an accepted vocabulary and set of policy
instincts when function overlaps with human-generated meaning)
Semantic interoperability
Big Mechanism: data models aligned per function and also per computer-
generated meaning)