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Magazines > Searcher > January 2004
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Vol. 12 No. 1 — January 2004
The Sidebar
If at First You Don't Succeed, Stop!: Proposed Legislation to Set Up New Intellectual Property Right in Facts Themselves
by Carol Ebbinghouse • Law LibrarianSecond District Court of Appeal Los Angeles, CA

NetCoalition's Top 10 Examples of the Potential Impact of H.R. 3261

1. A price comparison Web site could be prohibited from gathering price information for consumers. For example, an airfare information site would be precluded from gathering flight and price information from various airlines' sites to compile in one convenient site.

2. A public-interest Web site could be precluded from gathering headlines with links to news stories of interest to its members.

3. An organization like NetCoalition might not be able to gather state spam laws and post side-by-side comparisons on its Web site.

4. A university professor might be precluded from gathering weather information from a variety of Web sites for use in a paper that argues for or against the increase of global warming.

5. A local PTA might be prohibited from assembling information on drugs and other treatments for childhood diseases to make their research available on the organization's Web site.

6. A college booster's sports site could be prohibited from providing all kinds of information, from team statistics to game times to television schedules.

7. A car manufacturer could stifle competition by preventing companies who make replacement parts from publishing charts showing which of their products are less-expensive replacement parts for those sold by the manufacturer.

8. A member of Congress running for re-election might be precluded from publishing his voting record.

9. A small town could be prevented from publishing a list of concerts, sporting events, movies, and other coming attractions, with links to sites selling tickets to the events.

10. Searching for information online, which occurs literally millions and millions of times every day for free, could become a fee-for-service activity.

Here they go again.

First of all, I want to thank those of you who made calls, wrote, or faxed letters to your elected representatives and then called all your friends and urged them to action. So far, the efforts to protect facts from commercialization have been largely successful, and — surprise! — somehow database producers have managed to survive!

Keep up the good work — because the next volley has arrived.

The House now has before it H.R. 3261, the "Database and Collections of Information Misappropriation Act," introduced by representatives Howard Coble (R-NC), Jim Sensenbrenner, Jr. (R-WI and chairman of the Committee on the Judiciary), W. J. "Billy" Tauzin (R-LA and chairman of the Committee on Energy and Commerce), Lamar Smith (R-TX), David Hobson (R-OH), and Jim Greenwood (R-PA).

The disparate organizations lining up to fight H.R. 3261 are an impressive group. In a letter signed by the Consumers Union, the Electronic Frontier Foundation, the Electronic Privacy Information Center, the Media Access Project, and Public Knowledge, the authors pointed out, "[O]ur leaders and policymakers should strive to make it easier and less costly — not more difficult and more costly — for citizens to have access to public information. This should be the goal even when that information has been assembled or reassembled by a small number of commercial enterprises."1 The letter pointed out:

[W]e live in a nation in which any individual can become educated, drawing upon publicly available information, to fulfill his or her fullest potential as a participant in democracy. The barriers to achieving that goal should be minimal. Information that falls outside the already-established categories of intellectual property is a shared resource, a public good, and one that is enriched rather than diminished by policies that increase rather than decrease everyone's access to it. This approach to information, and its importance to the opportunities inherent in democracy, informed citizenship, and self-education, stand in fundamental opposition to proposals like [H.R. 3261] ... that create new intellectual property schemes to lock information up and ensure that every individual pays a toll for every fact he or she learns. [Emphasis added.]

The Association of Research Libraries, in a legislative update on database legislation, pointed out, a "key concern" of library and other organizations in a new Ad Hoc Database coalition "is the fact that the legislation would create protection not only for databases, but for the facts contained therein. [Emphases added.] Such protection would be at odds with the U.S. Supreme Court's assertion in Feist Publications v. Rural Telephone Service Co. (1991)2 and in Dastar v. Twentieth Century Fox (2003)3 that copyright protection does not extend to facts."
(See http://www.arl.org/info/frn/leg-update.html.)

Major Issues for Libraries and Other Information Providers

Will performing interlibrary loans, preservation projects, circulating material, and/or creating bibliographies, or providing access to commercial and/or Internet databases violate the terms of H.R. 3261? There is no guidance as to what libraries, schools, research, and educational institutions can and cannot do with databases. The vagueness of the text and the lack of definitions of terms used in the bill could lead to expensive lawsuits to gain judicial interpretations and limits on liability.

For instance, if a reference librarian provides access for a library patron to a variety of databases at a library workstation, and the patron copies information relevant to his or her needs to a floppy disk, is the library going to escape the net of a lawsuit if the patron then loads the contents of the floppy disk onto the Internet? Would it make a difference if the library was a university library and the patron either a student or a member of the local community? Would it make a difference if the reference librarian was an independent information provider? Would it make any difference under the law if the patron charged for access to the information or loaded it onto his/her Web site for all to see for free?

The courts would have to resolve these questions, because the language of the proposed legislation is unclear.

Major Issues for Library Patrons

Issues are especially dire for individuals.

Professors and students create new databases by extracting information from existing ones available at their college library. Can they not post their final bibliographies and other findings for their classes and/or the world on the Internet?

Library patrons in public libraries, government libraries, corporate and law firm libraries all gather information — facts — and create files of this downloaded information for posting on their personal Web sites or their employer's intranet(s); sometimes they even burn their own CDs to share. Library patrons share data, competitive intelligence, price lists, etc., as well as scientific, technical, and business factual and legal research with employers, clients, co-counsels, classmates, professors, corporations, public agencies, charities, family members, and myriad others. Will they open themselves up to lawsuits and temporary and permanent injunctions? Could they be held liable not just for damages alleged by plaintiffs, but additional damages up to twice that amount? Could they have their equipment impounded? It is quite possible.

For everyone on the Internet and/or everyone using commercial databases (private or public), the terms of this bill are unnerving.

No one will be able to share information gleaned from a "database [that] was generated, gathered or maintained through a substantial expenditure of financial resources or time;..." (Sec. 3(a)(1)). At least they won't be able to share information from databases "in commerce," which is defined circuitously as "all commerce which may be lawfully regulated by the Congress" (Sec. 2(2)). What constitutes a database under the proposed law? According to Sec. 2(5)(A), Subject to subparagraph (B), the term "database" means "a collection of a large number of discrete items of information produced for the purpose of bringing such discrete items of information together in one place or through one source so that persons may access them." Sounds like research to me. To compound the confusion, Sec. 2(5)(C) on "Discrete Sections" reads, "The fact that a database is a subset of a database shall not preclude such subset from treatment as a database under this Act."

So the law protects databases and pieces of databases that can be called databases. Now we know what a database is — discrete items of information. So, how is "information" defined? Sec. 2(8), "The term 'information' means facts, data, works of authorship, or any other intangible material capable of being generated or gathered." Notice that nothing in this definition is protected under copyright — because it doesn't have to be original. This basically circumvents the definition of what the Supreme Court in the Feist case determined was constitutionally unprotected and unprotectable under Copyright law.

So who can sue you for gathering information from databases and "making it available in commerce to others" (e.g., sharing it over the Internet with more than your family and social acquaintances)? You can be sued by any person, including "a firm, corporation, union, or other organization which is organized under the laws of the United States, a State, the District of Columbia, or any commonwealth, territory, or possession of the United States, or the laws of a foreign country," per Sec. 2(12)) that has "gathered, generated, or maintained a database." That, in case you didn't know, is a lot of potential plaintiffs.

Personally, I don't like the "or maintained" verbiage. Someone can merely "maintain" a database, defined in Sec. 2(13) as "to update, validate or supplement the information contained in the database" and have a cause of action! Does this mean that with very little work or expense in gathering or generating a database — for example, licensing the use of an existing database and perhaps adding a few facts — suddenly a party can use this law to sue? Yes, those plaintiffs can sue so long as the defendant isn't "independently generating or gathering information obtained by means other than extracting it from a database generated, gathered, or maintained by another person and making that information available in commerce" (Sec. 4(a)) or "a nonprofit educational, scientific and research institution," or "news reporting" or merely "hyperlinking" (per Sec. 4(b)-(d)).

What does one have to do to become liable? Liability extends to (see Sec. 3(a)) "Any person who makes available in commerce to others a quantitatively substantial part of the information in a database generated, gathered, or maintained by another person, knowing that such making available in commerce is without the authorization of that person ... shall be liable for the remedies set forth in section 7 if:

(1) the database was generated, gathered, or maintained through a substantial expenditure of financial resources or time;

(2) the unauthorized making available in commerce occurs in a time-sensitive manner and inflicts injury on the database or a product or service offering access to multiple databases; and

(3) the ability of other parties to free ride on the efforts of the plaintiff would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.

(b) INJURY — For purposes of subsection (a), the term "inflicts an injury" means serving as a functional equivalent in the same market as the database in a manner that causes the displacement, or the disruption of the sources, of sales, licenses, advertising, or other revenue.

(c) TIME SENSITIVE — In determining whether an unauthorized making available in commerce occurs in a time-sensitive manner, the court shall consider the temporal value of the information in the database, within the context of the industry sector involved.

Note that the defendant need not have sought or made any profit. The fact that the plaintiff believes that the informational facts that the defendant downloaded and posted on the Internet may have cost him a sale, license, advertising or other revenue is enough for an "injury" under the law.

The only information not protected under this act is government information and "computer programs necessary to the manufacture, production, operation, or maintenance of a database, or ... necessary to its operation" (Sec. 5(a) and (b)).

Laws themselves may become "protected" information under this legislation. Not all laws would be "government information" (defined in Sec. 5(a)(1) as "a database generated, gathered, organized, or maintained by a federal, state, or local governmental entity, or by an employee or agent of such an entity, acting within the scope of such employment or agency; or (B) a database generated, gathered, or maintained by an entity pursuant to and to the extent required by a federal statute or regulation requiring such a database"). According to the definition, the exemption covers all government information when "a database generated...." This ignores government publications, transcripts and recordings, charts, maps, microfilmed records, and myriad other nondatabase formats. Such a narrow definition would enable corporations which generated, gathered, and/or maintained government publications into a database (which had no state or federally generated counterpart) to protect that database under this bill. In essence, they could "sell" information that the people had already paid for and block it from being copied and freely distributed.

So, what could a plaintiff in a lawsuit against you and/or your library or employer do? Well, they could sue you under this law and still be able to pursue "remedies concerning copyright, patent, trademark, design rights, antitrust, trade secrets, privacy, access to public documents, and misuse ... or remedies concerning the common law right of contract." See Sec. 6. They could go for temporary and permanent injunctions, seek monetary relief for actual damages and any profits of the defendant attributable to the violation, and seek "an additional amount not exceeding two times such actual damages after considering the following factors":

(A) Whether the plaintiff notified the defendant of the alleged violation and the defendant continued to violate section 3.

(B) The willfulness of the defendant's conduct.

(C) Whether the defendant has a history of database misappropriation.

(D) The defendant's ability to pay.

(E) Whether the alleged violation had a serious negative financial impact on the plaintiff.

(F) Any good faith effort by the defendant to rectify the misappropriation.

(G) Whether the assessment of additional damages is necessary in order to deter future violations.

(d) IMPOUNDMENT — At any time while an action under this section is pending, including an action seeking to enjoin a violation, the court may order the impounding, on such terms as it deems reasonable, of all copies of contents of a database made available in commerce or attempted to be made available in commerce potentially in violation of section 3 (Sec. 7).

And, of course, successful plaintiffs will be able to seek costs and attorney's fees under the act.

Finally, if the clutches of this act had not already captured you, nothing prevents the database gatherers, generators, and maintainers from including terms in "shrink wrap" and/or "click wrap" licenses that stipulate anyone violating the license can and will be subject to a lawsuit under the terms of this act. In such cases, nonprofit, educational, and research institutions excluded from liability under amendments to the act could become liable through the license agreement!

There are potentially any number of frivolous lawsuits, as well as a plethora of actions seeking much-needed judicial clarification of the act and its language. Trust me, you don't want to be a test case!

What Is at Risk?

Take a look at the "NetCoalition's Top 10 Examples of the Potential Impact of H.R. 3261" sidebar on page 14. Can you see why NetCoalition members oppose this bill? Do you see how it will affect librarians, library patrons, information providers, and their clients, and why so many people and organizations realize that the law would bar what everyone does every day in gathering information? Now you can understand why the NetCoalition has joined with such diverse groups as the ACLU, the U.S. Chamber of Commerce, the Electronic Frontier Foundation, AT&T, Google, five major library associations, Bloomberg LP, Charles Schwab, Yahoo!, large and small Internet service providers, Amazon.com, and the National Academies of Science and Engineering — all to fight this bill4.

The primary position taken by a number of these organizations asserts that there is absolutely no need for the bill. According to a October 21, 2003, letter to Sensenbrenner and Tauzin, the "proponents of the bill have yet to offer a convincing case that existing federal and state laws, including federal copyright law, federal anti-hacking prohibitions, and a variety of state contract and tort laws are insufficient to provide database producers with adequate protection. They have certainly failed to demonstrate a problem that would justify the fundamental and constitutionally suspect changes to our nation's information policy called for in the legislation." On the other hand, in an appendix to testimony on behalf of H.R. 3261, the Software and Information Industry Association (SIIA) offered "The Shortcomings of Existing Law," a well-written and sometimes persuasive account of how inadequately and inconsistently current federal and state laws protect members from those who would download their data and undermine the market for their databases by selling that same information on the Internet. The appendix detailed the failings of copyright law, the technology protection measures of the Digital Millennium Copyright Act, state contract, misappropriation and trespass laws, the Computer Fraud and Abuse Act, unfair competition laws, and trade secret laws.

Library associations, among others, point out that the bill makes no provision for fair use, nor the first sale doctrine, and provides no safeguards against monopolistic pricing of databases. Fair use needs to be defined under the act to inform users what is permissible for individuals to do in gathering and sharing personal research, much as the copyright law has provided for photocopying. Nor is there any provision comparable to the "first sale" doctrine, under which libraries circulate materials (in a variety of formats) that they have purchased, and under which consumers can take books that they own and share them with friends, or give them away, or sell them once they are done with them.

Clifford Stearns of the Energy and Commerce Committee expressed reservations about the bill as well. Speaking at the hearings on the draft version of H.R. 3261, he opined:

I believe that Congress should not create property rights in facts. Specifically, I am concerned that the prohibition against making database information available has ambiguous terms that will chill the development of new databases and lead to litigation. I am concerned that a database that is merely maintained, and not necessarily collected, would receive protection. How does this standard couple with the time-sensitivity standard? Could the maintenance provision cause a court to have a liberal reading of time sensitivity?

I am most concerned about the way this legislation will impact scientific, educational, and research activities. I worry that the determination of what is customary is so vague that it will only be resolved through costly litigation. This could put a real chill on important research activities. A result I suspect none of us would like to see.

The testimony of David O. Carson, general counsel of the Copyright Office, was fascinating, and I commend it to everyone's reading [www.copyright.gov/docs/regstat092303.html]. He provided a recent history of congressional attempts to legislate in this area and reviewed previous testimony of the Register of Copyright. Having recognized the "gap in existing legal protection" for databases, the Register pointed out that there were risks of overprotection of databases and the need for "flexibility built in for uses in the public interest in a manner similar to the function played by fair use in copyright law." He noted:

[The] Register recommended the restoration of the general level of protection provided in the past under copyright "sweat of the brow" theories ... [and] that misappropriation is the best approach to the issue .... He reviewed the history of database protection in the United States and then discussed the draft of the Database and Collections of Information Misappropriation Act and the criticisms of the draft. He discussed using the Commerce Clause to support the constitutionality of the draft legislation, since the Copyright Clause excluded protection of facts. He discussed problems with subpoena powers in the draft (a pre-H.R. 3261 version), as well as the need for a "fair use" exception similar to the one in the Copyright Act, and Internet service provider liability issues, but concluded that the Copyright Office "does not, at this time, take a position on this legislation.

Mr. Thomas J. Donohue, president and chief executive officer of the U.S. Chamber of Commerce ("the world's largest business federation, representing more than 3 million businesses of every size, sector, and region of the country"), spoke against the bill. He pointed out:

This legislation continues to pose a serious threat to the business community, as well as to the academic and science community. I strongly urge you not to move forward with this legislation. ... When the U.S. Chamber of Commerce, the Consumers Union, the American Conservative Union, Association of Research Libraries, NetCoalition, and the Eagle Forum all join hands in opposition to a legislative initiative, it's fair to ask what could unite groups which so often see the world in very different ways. The reason why so many organizations are so concerned about the discussion draft is simple. There has been no threshold showing that there is a problem that needs to be addressed by legislation. ... [P]roponents of broad database legislation continue to seek protection for information that they haven't created. [Emphasis added.] That is not to say that access to these databases should necessarily be available for free. Indeed, the Chamber strongly believes that current protections such as appropriate intellectual property protections, along with contract and licensing agreements and state trespass and misappropriation protections, as well as other protections should be utilized and enforced. .. but new intellectual property protections like those envisioned by the discussion draft are too broad and unnecessary."

Mr. Donohue pointed to the reaction of the Chamber's members: "Our broad membership includes many of America's most significant database producers. These companies invest enormous sums of money producing creative, new information products.... If our Chamber members believed for a second that they couldn't protect their substantial investments in database production, they would be urging me to affirmatively fight for new law. Instead, I'm hearing that there is little or no upside for the business community in database legislation, and potentially a significant, anti-competitive downside."

Keith Kupferschmid, vice-president for intellectual property policy and enforcement at the Software & Information Industry Association (SIIA), spoke on behalf of the Coalition Against Database Piracy (CADP). "The CADP's members include large and small database producers who devote substantial resources in compiling, organizing, and distributing database products and providing services that rely on databases. ... Database publishers not only collect, compile, and organize the information, they also keep it updated and reliable." In response to those who believe that existing laws are sufficient protection, Kupferschmid stated:

There is presently a lack of meaningful national legal protection for these databases. While database producers rely on several potential legal theories, none adequately nor effectively deter or prevent database piracy. Depending on the facts of a particular case, database producers may consider raising claims under: U.S. copyright law, state misappropriation law, state trespass law, state contract law, the Computer Fraud and Abuse Act, federal or state trademark or unfair competition law, and trade secret law. However, none of these claims are sufficient. A list of possible claims and an explanation of their shortcomings is provided in the attached appendix, including references to examples where appropriate. ... To be clear, we are not seeking "copyright plus," to expand copyright law, to acquire exclusive rights in the database, or to lock up information. We are merely trying to protect against free-riders taking our databases and making them available in a way that hurts our businesses. We think this is a reasonable request. If legislation passes that provides a meaningful legal foundation to fall back on when someone steals a database, companies will be more willing to provide widespread access to their databases and take the risk that it might be stolen. Without this legal basis, they are forced to be more cautious about how they disseminate their databases, how much they should invest in maintaining their databases and, in many instances, whether to create a new database in the first case.

Mr. William Wulf, president of the National Academy of Engineering, spoke against the draft legislation on behalf of the U.S. National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine, as well as the Association of American Universities, the American Library Association, and the Association of Research Libraries. He outlined seven "key principles":

1. The public-domain status of factual, noncopyrightable information must be preserved, and any new protection regime should leave a wide buffer zone to ensure that factual information will not be subjected to proprietary claims.

2. Only significant problems of unfair competition and market failure that have been proven should be addressed, and negative, unintended consequences must be avoided.

3. A reasonable balance of interests among all stakeholders in the information economy should be maintained. Congress should proceed cautiously in creating new protection regimes, because once created, a new protection regime is virtually impossible to dismantle.

4. Healthy competition in the information industry needs to be promoted, while the further strengthening of unwarranted monopolies should be avoided.

5. Exclusive control, either de jure or de facto, by private parties over information and databases produced by the government must be prevented.

6. New protection regimes should not create any doubt or controversy about the lawfulness of traditional and customary access to and use of factual information for not-for-profit science, research, and education. Effective exceptions must be adopted.

7. The important role and functions of our nation's libraries must not be undermined.

Mr. Wulf continued:

As we have noted in previous testimony on this issue, access to and use of factual data in the public domain is essential to furthering our understanding of nature, to the validation of scientific claims, and to the progress of science and our nation's system of innovation. The advent of digital technologies for collecting, processing, storing, and transmitting data has led to an exponential increase in the size and number of databases created and used. A hallmark trait of modern research is to obtain and use dozens or even hundreds of databases, extracting and merging portions of each to create new databases and new sources for knowledge and innovation.

Not only researchers and educators, but all citizens with access to computers and networks, constantly create new databases and information products for both commercial and noncommercial applications by extracting and recombining public-domain data and information from multiple sources. The rapid and continuous synthesis of disparate data by all segments of our society is one of the defining characteristics of the information age. Moreover, the serendipitous nature of research and the need of scientists and others to make transformative uses of noncopyrightable facts are such that one cannot predict when or how a database will be used. ... Because of the overriding importance of noncopyrightable factual information remaining in the public domain, any new legislation in this area must be limited to remedying unfair conduct in commerce rather than extending any exclusive property rights in the factual information itself.

Wulf went on to discuss the need for new legislation:

Proponents of new database protection legislation have long argued that the misappropriation of databases is a major problem in the U.S. information industry and that existing methods of protection and remedies are inadequate. We find both assertions to be of increasingly dubious validity.

There is little evidence since the last time we testified on this issue before Congress that databases or other collections of information are routinely stolen or that there is massive market failure in the information industry. Indeed, database producers already enjoy a broad range of legal, technological, and self-help methods — many of which have been further strengthened in recent years. ... Contracts and licenses are now used universally by database owners to make their products available under a range of custom-tailored, restrictive conditions. Technologies that protect digital databases and help enforce the existing statutory and contractual rights of owners are constantly being refined and strengthened, including such methods as encryption, online database access controls, software- and hardware-based trusted systems, and digital object identifiers and electronic watermarks. Indeed, these contracts and technologies are increasingly employed to limit uses of data and information that would otherwise be permitted by law. Congress should carefully monitor their use and consider whether limits on their use are needed to preserve the balance between access to and use of factual information and the incentives to invest in the collection of such information, both of which are essential to the vigorous growth of science and knowledge. Finally, market-based protections of databases through self-help business practices such as frequent updating and customizing can help make misappropriation less effective. Taken together, these database protection methods have helped make the commercial database market expand successfully in the United States.

Conclusion

Most opponents of H.R. 3261 begin with one premise, that there is no need for this legislation or any other new law. In the joint letter of September 4, 2003, the leadership of the AALL, ALA, ARL, and SLA noted, "Congress has been discussing database legislation since 1996, and in all that time, there has been little if any evidence that the database industry has faced uncertainty in the courts or has been harmed in the marketplace. There is no evidence that selected database producers have suffered any serious harm as a result of the kind of activity addressed in the current draft proposal. Indeed, the industry appears to be thriving." The same principle is raised in the NetCoalition letters of September 8 and October 21, 2003 (see http://www.netcoalition.com), and the testimony of Messrs Wulf and Donohue on September 23, 2003. If it ain't broke, don't fix it!

Most of the interested parties note the tightrope walk between protecting the investments of businesses creating databases and the unconstitutional protection of facts in the public domain. Commentators want to be sure that members of the public, liberated by the increasing flow of information meeting their personal research needs and the ability to weed out the irrelevant and keep needed information, will not be prosecuted when they share it with like-minded people. Furthermore, the libraries where these consumers find database access and instruction must be protected from prosecution for acts of patrons after they have left the library with their precious information.

I am reminded of an acquaintance years ago. Doctors discovered she had a brain tumor and operated successfully. During her long recovery, she vowed to establish a foundation for research into this particular type of tumor. She began searching commercial databases and free sources throughout the Internet, newspapers, magazines, and medical periodicals for information on the tumor. She weeded out everything irrelevant to her narrow focus and gathered statistics, recovery rates, tables, graphs, and every kind of data. The last time I heard, she was going to establish a Web site to post all of the information she had so tenaciously extracted for "other survivors."

If H.R. 3261 were to pass, I am not at all sure that her Web site might not run afoul of its provisions. And while she would profit nothing but the good feeling of providing information and solace for others in her situation, she just might have deprived some database company of income by being the consummate source of information on that particular type of tumor — a one-stop-shop. She might have taken very little of a large commercial database — but still have amassed everything in that database on her subject (and that could be considered a "discrete section" or subset of a database under Section 2 of this Act).

Free access to factual information would be sorely missed, as would the ability to create personal databases to share with others, if H.R. 3261 or some other iteration should pass. If companies can capture facts simply by generating or gathering them together, or even by simply maintaining them in a database, then gather they will until they've snatched up and control the dissemination of facts themselves.

H.R. 3261 is not the only battlefield. Having lost on the UCITA front, at least temporarily, the information industry has gotten at least one state to introduce legislation designed to afford civil and criminal proceedings and remedies for making competing products of factual compilations. Keep an eye on your own state legislature and be vigilant in discovering database legislation. This is especially important for those of you in Georgia, who need to fight SB 38, the "Georgia Database Protection and Economic Development Act of 2003." (See the text at http://www.netcoalition.com's Key Issues page.) The fight may soon need waging in every state capitol.

Please find an organization, Web site, or advocacy listserv that will keep you apprised of current developments. And please write letters, make calls, and send e-mails and faxes (see the "Selected Opponent Organizations and Advocacy Groups" sidebar on page 15). Your voice is both unique and important — and may be the deciding factor for a particular legislator preparing for a key vote. Your voice — it matters: Call, fax, write, e-mail, and shout from the rooftop — now.


Footnotes

1 See the September 5, 2003, letter at
http://www.publicknowledge.org/article_server/
letters/200310120001.html?text_version=
.

2 Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340 (1992). http://laws.findlaw.com/us/499/340.html.

3 Dastar Corp. v. Twentieth Century FoxFilm Corp., http://laws.findlaw.com/us/000/02-428.html.

4 See the October 21 letter to Representatives Sensenbrenner and Tauzin at
http://www.netcoalition.com/keyissues/2003-10-21.466.pdf.


Action Links

First, check on the Bill Status (and read the text and amendments) through a check at http://thomas.loc.gov.

To express your concerns, locate your elected officials at http://congress.nw.dc.us/ala/dbq/officials or http://thomas.loc.gov/. Search by name of representative, state, or even your ZIP code! Tell your elected officials and the committee members what you think. Now. Before you forget!

If nothing else, call the U.S. Capitol switchboard at (202) 224-3121 and let them know you oppose this bill.


Further Reading

Carson, David O., general counsel of the U.S. Copyright Office, Testimony before the Subcommittee on Courts, the Internet, and Intellectual Property, Committee on the Judiciary and the Subcommittee on Commerce, Trade and Consumer Protection, and the Committee on Energy and Commerce, September 23, 2003, http://www.copyright.gov/docs/regstat092303.html.

Clark, Drew, "Numerous Interests Oppose Bill on Database Protection," from National Journal's Technology Daily (Oct. 21, 2003),
http://nationaljournal.com/pubs/
techdaily/pmedition/tp031021.htm#7

and http://www.drewclark.com/.

Foster, Andrea, "Database-Protection Measure Clears House Panel," in Chronicle of Higher Education, October 17, 2003, http://www.chronicle.com.

NetCoalition.Com, "Database Protection: A Primer on the Debate in Congress Over Creating a New Property Right in Facts," http://www.netcoalition.com.

Pike, George H., "Database Protection Legislation Introduced in Congress," http://www.infotoday.com/newsbreaks/nb031020-1.shtml.

Viahos, Kelley Beaucar, "Critics Fear Database Bill Will Hinder Research," http://www.foxnews.com/printer_
friendly_story/0,3566,99496,00.html
.

For texts of the testimony at the September 23, 2003, House Committee on Energy and Science Subcommittee on Commerce, Trade and Consumer Protection, see the House Committee on Energy and Science Web site:
http://energycommerce.house.gov/108/
Hearings/09232003hearing1086/hearing.htm
.
Rep. Stearns' (R-FL) remarks appear at
http://energycommerce.house.gov/108/Hearings/
09232003hearing1086/The_Honorable_Cliff_Stearns.htm
.


Selected Opponent Organizations and Advocacy Groups

American Association of Law Libraries
http://www.aallnet.org

AALL Washington Liaison Office
http://www.ll.georgetown.edu/aallwash/index.html

American Library Association
http://www.ala.org

ALA Washington Office
http://www.ala.org/washoff/ip/html
Listserv for updates from the ALA Washington Office ALA-WO on listserv@uicvm.uic.edu or listserv @uicvm.bitnet.

Association of Research Libraries
http://www.arl.org

Coalition for Networked Information
http://www.cni.org

Listserv for updates on copyright issues: CNI-Copyright@cni.org. Send the following message (no subject line) to listproc@cni.org "subscribe cni-copyright Yourfirstname Yourlastname" The listserv is archived at gopher://gopher.cni.org:70/Or790135-794149-/cniftp/forums/cni-copy
right/ and at http://www.legalminds.org/listsaver/cni-copyright/.

NetCoalition
http://www.netcoalition.com

"NetCoalition serves as the public policy voice for innovative Internet companies on key legislative and administrative proposals affecting the online world. A respected resource, NetCoalition provides creative and effective solutions to the critical legal and technological issues facing the Internet and has helped ensure the integrity, usefulness, and continued expansion of this dynamic new medium."

The Public Domain

This discussion group shares news, announcements, and experiences with public domain and copyrighted materials. Send the following message to listserver@hunterdon.com (no subject line) "subscribe publicdomain Yourfirstname Yourlastname."

Public Knowledge
http://www.publicknowledge.org

"Public Knowledge is a new public-interest advocacy organization dedicated to fortifying and defending a vibrant information commons. This Washington, D.C.-based group works with a wide spectrum of stakeholders — libraries, educators, scientists, artists, musicians, journalists, consumers, software programmers, civic groups, and enlightened businesses — to promote the core conviction that some fundamental democratic principles and cultural values — openness, access, and the capacity to create and compete — must be given new embodiment in the digital age.

Public Knowledge will seek to fulfill four broad goals:

• Ensuring that U.S. intellectual property law and policy reflect the "cultural bargain" intended by the framers of the Constitution: providing an incentive to creators and innovators while benefiting the public through the free flow of information and ideas.

• Preserving an Internet that is built upon open standards and protocols and "end-to-end" architecture, thereby fostering innovation and user control.

• Protecting consumers of digital technology from market practices designed to erode competition, choice, and fairness.

• Ensuring that international intellectual property policies are adopted through democratic processes and with public-interest participation."

Special Libraries Association
http://www.sla.org

Stanford University Libraries: Copyright & Fair Use site
http://fairuse.stanford.edu


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