In National Basketball Ass'n v. Motorola, the Second Circuit encountered the problematic issue of copyright preemption. Though the case did not directly involve the protection of database contents, NBA is a harbinger of judicial underprotection for the database industry. In holding that state misappropriation doctrine is preempted by the Copyright Act except in a very narrow class of "hot news" cases, NBA unduly restricts the common law's ability to prevent tortious behavior between database industry competitors. This underprotection has fueled a movement toward the legislative protection of database contents, but recent Congressional proposals, in their current form, leap to the opposite extreme and would overprotect database contents. Congressional action to encourage the proprietary development of database products is nevertheless desirable, and this paper will argue in favor of the legislative codification of a misappropriation model similar to the one preempted in NBA.

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