The Honorable Joe L. Barton
Chairman, House Energy & Commerce Committee
The Honorable John D. Dingell
Ranking Member, House Energy & Commerce Committee
Re: H.R. 3261, Database and Collections of Information Misappropriation Act
Dear Chairman Barton and Ranking Member Dingell:
We strongly oppose the ""Database and Collections of Information Misappropriation Act,"" (H.R. 3261), and urge you to vote against this bill when it comes before your committee. The bill 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 if the data was derived from the telephone company's 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.
Supporters of the bill believe that ""sweat of the brow"" in compiling the data is deserving of protection. The Supreme Court in Feist noted, however, that the unfairness in allowing the fruit of one's labor to be used by others without compensation is not ""some unforeseen byproduct of a statutory scheme.""[1]
It is, rather, ""the essence of copyright,"" and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but ""[t]o promote the Progress of Science and useful Arts."". . .To this end, copyright assures authors the right to their original expressions, but encourages others to build freely upon the ideas and information conveyed by a work. Id.
For this reason, the Court held that ""[f]acts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted.""[2]
Proponents of this bill argue that Congress should be free to pass such protection under its Commerce Clause power, thereby circumventing the copyright clause's prohibitions. It is highly doubtful that Congress may avoid the particular requirements of one enumerated power (the Copyright clause) by relying on the generality of the Commerce Clause.[3]
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.[4] To put it another way, this bill is simply not necessary to promote development of useful databases.
We are also concerned about the Section 3's vague prohibition of making available a ""quantitatively substantial part"" of a database, particularly since Section 2 notes that ""the fact that a database is a subset of a database shall not preclude such subset from treatment as a database under this Act."" ""Quantitatively substantial part"" is vague enough. However, when considering Section 2, the issue becomes even less clear. Using a phone book as an example, could the section for names beginning with ""A"" be considered a discrete database? How many pages would be considered a ""quantitatively substantial part"" of the ""A"" section? Does the database owner get to choose whether to allege that an entire database or only a ""discrete"" portion was taken? The bill does little to answer these questions. As a result, users may well be chilled in their use of these facts.
Another area of concern is Section 2 (5)(B)(iv). This section is aimed at domain registrant contact data such as the WHOIS database. It excludes such databases from the definition of database unless appropriate steps are taken to ensure the integrity of the data and to ""provide real-time, unrestricted, and fully searchable public access to the information contained"" therein. This provision attempts through the back door to force accuracy in the WHOIS database, sweeping aside valid concerns about First Amendment protection for anonymous speech, as well as privacy. Concerns about the WHOIS database should be addressed elsewhere. In fact, the International Corporation for Assigned Names and Numbers (ICANN) is currently working on this very issue.
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 to vote against it.
Sincerely,
Laura W. Murphy
Director
Marvin J. Johnson
LegislativeCounsel
Cc: Members of the House Energy & Commerce Committee
[1] Feist at 349.
[2] Id. at 350.
[3] See, Railway Labor Executives' Association v. Gibbons, 455 U.S. 457 (1982). See also, Memorandum from William Michael Treanor, Deputy Assitant Attorney General, United States Department of Justice, to William P. Marshall, Associate White House Counsel (July 28, 1998), which came to a similar conclusion regarding an earlier database protection bill.
[4] It has, however, seen a remarkable rise in litigation over databases.