If at First You Don't Succeed,
Proposed Legislation to Set Up New Intellectual
Property Right in Facts Themselves
by Carol Ebbinghouse Law Librarian Second
District Court of Appeal Los Angeles, CA
Here they go again.
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
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
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
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
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
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."
Major Issues for Libraries and Other Information
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
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
(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
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
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
(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
(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.
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
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,
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
[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
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
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
2. Only significant problems of unfair competition
and market failure that have been proven should be
addressed, and negative, unintended consequences must
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
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
There is little evidence since the last time we
testified on this issue before Congress that databases
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,
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,
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
Congress should carefully monitor their use and
consider whether limits on their use are needed
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,
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
make the commercial database market expand successfully
in the United States.
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
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.
1 See the September 5, 2003, letter
2 Feist Publications, Inc. v.
Rural Tel. Service Co., 499 U.S. 340 (1992).
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
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
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),
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_
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:
Rep. Stearns' (R-FL) remarks appear at
Selected Opponent Organizations and Advocacy Groups
American Association of Law Libraries
AALL Washington Liaison Office
American Library Association
ALA Washington Office
Listserv for updates from the ALA Washington Office
ALA-WO on email@example.com or listserv
Association of Research Libraries
Coalition for Networked Information
Listserv for updates on copyright issues: CNI-Copyright@cni.org.
Send the following message (no subject line) to firstname.lastname@example.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 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 email@example.com (no subject line) "subscribe publicdomain Yourfirstname
"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
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
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
with public-interest participation."
Special Libraries Association
Stanford University Libraries: Copyright & Fair