Cc: Members of the House Committee on Energy and Commerce
Dear Chairman Tauzin,
We are writing in regard to a recent ""discussion draft"" of a bill entitled the ""Database and Collections of Information Misappropriation Act."" We are strongly opposed to this proposal, and urge you not to introduce this bill. It would violate the First Amendment by providing copyright-like protection of mere facts that appear in databases just because of the effort it took to gather those facts. For example, under this bill, a telephone company could prevent anyone else from publishing a telephone book, simply because of the ""substantial"" effort it took to compile and publish the data. The Supreme Court in Feist Publications v. Rural Telephone Service Company, Inc., 499 U.S. 340 (1991), specifically rejected the concept of copyright protection for the effort of collecting the data.
In Feist, the Court held that only the creative expression and/or assembly of information is protectable under laws such as the Copyright Act. To promote a broad and vibrant ""marketplace of ideas,"" copyright-style protections should not be extended to mere facts. Indeed, the Supreme Court held in Feist that the Copyright Clause of the Constitution (which empowers Congress to enact laws to secure ""for limited Times to Authors ? the exclusive Right to their respective Writings"" in order to ""promote the Progress of Science and useful Arts"") prevents Congress from protecting facts, because the public's access to and ability to use facts was part of the Constitutional bargain embodied in the Clause. While this proposed bill does not provide copyright protection to mere facts, it nonetheless imposes restrictions on the use of such information, a position seriously cast into doubt by Feist. Thus, not only is the premise of the bill (protection of mere facts) flawed and poses grave First Amendment problems; the bill attempts to evade an important Constitutional limitation on Congressional power that would upset the careful balance envisioned by our Founding Fathers.
We also question whether there is a legitimate need for this bill. We note that current incentives have sufficed to inspire the creation of vast and varied databases in the U.S., despite the lack of copyright-style restrictions on the use of information contained in those databases. Indeed, Europe, which has enacted such restrictions, has not seen a sudden flowering of collections of information compiled in response. To put it another way, this bill is simply not necessary to promote development of useful databases.
We have three major concerns about how this bill attempts to implement its flawed premise:
- Poor protection of free speech and First Amendment-rooted rights. Section 3 of the bill would essentially restrict the dissemination and use of mere facts, so long as they have been included in databases. The proposal claims to apply to databases that were created through "substantial expenditure of financial resources or time," and to use of "substantial" portions of databases, but leaves the term "substantial" completely undefined. This would result in a substantial ""chilling"" effect on the use of facts, as no one could be certain what would be deemed ""substantial."" Moreover, the proposal mentions that segments of databases can still be treated as full databases in their own right. Thus, for example, each letter of the alphabet could be deemed a ""database"" in a phone book (each letter would be a segment of the overall phone book). If someone copied several pages of the ""B"" section of the phone book, would that be use of a ""substantial"" portion of the ""database?"" Again, such questions chill the use of purely factual data. The bill's broad language would apply to most offline and online databases, including Internet search engine results. The bill includes minor exceptions (such as for independently developed information, news reporting, and for certain nonprofit institutions rather than individuals) that fall far short of the safeguards that are traditionally afforded to First Amendment values (such as the doctrine of fair use).
- Subpoena powers pose serious privacy concerns. Section 7 of the bill gives database owners broad subpoena powers with no judicial discretion. A clerk must grant a subpoena, as long as the proposed subpoena "is in proper form" and the "accompanying declaration is properly executed." There is no provision for due process protections, or even a requirement that an applicant make a prima facie demonstration that a proposed defendant has, indeed, violated the law before violating her privacy.[1] This lack of privacy-related safeguards seems ripe for abuse.
- Separation of powers. The final section of the bill (section 10) seems to impose a 10 year statute of limitations on Constitutional challenges to its provisions. The bill states that if its substantive provisions (section 3) are found unconstitutional on First Amendment or Article I grounds, the bill is repealed. However, this provision ceases to be effective at the end of the 10-year period beginning on the date of enactment. If, in fact, the intent is to impose a statute of limitations on a constitutional challenge, this may be an unconstitutional interference on the separation of powers.
Based on the foregoing, we oppose this bill (both because of its underlying premise and in the way the bill implements this premise) and urge you not to introduce it.
Sincerely,
Laura W. Murphy
Executive Director
Marvin Johnson
Legislative Counsel
[1] In contrast, Fed. R. Civ. P. 27 requires notice to the subpoenaed party, an opportunity to be heard, and a judicial order, before a pre-litigation subpoena may issue. Similarly, once a case is filed, discovery ordinarily may not issue before service on the defendant unless authorized by a judge. See Fed. R. Civ. P. 26(f); See also SeesCandy, 185 F.R.D. 573.