All your facts are belong to us

/ Intellectual Property /

For the past couple months yet another bad IP bill has been snaking it’s way through Congress. HR-3261, aka the Database and Collections of Information Misappropriation Act (DCIMA), would allow database maintainers to sue anyone who copies facts from their database for a competing product. Even if those facts aren’t protectable under copyright. Even if they were produced by someone else. Even if the database itself was produced by someone else and is only being maintained by the plaintiff. This was dubbed the WestLaw Protection Act back when it was floated before congress and the WIPO in 1996 and again in 1998, and it’s still just a land-grab from a few database manufacturers like WestLaw (Thompson) and LexisNexis (Reed Elsevier). West’s near-monopoly on publishing government-produced judicial decisions was always shakily based their copyright of the page numbers in the citations, a basis that was further eroded in a Court of Appeals ruling in 1999.

The bill outlaws making available a “quantitatively substantial part” of a database in a “time sensitive manner,” but it leaves interpretation of how exactly what that means to the courts. This will undoubtable lead to the same “we’ll let you know whether you’re in violation after we sue you” nastiness we’ve already seen with the DMCA. It could also wind up being quite broad, assuming it’s constitutional at all. For example, there’s this bit:

5.(C) DISCRETE SECTIONS- The fact that a database is a subset of a database shall not preclude such subset from treatment as a database under this Act.

As I read it, that means even if you didn’t copy a quantitatively substantial part of my entire database, like only 50 names from a list of 5 million, I can still nail you for copying a quantitatively substantial part of a sub-database such as the 100 names within a single 9-digit zipcode. There’s also nothing saying whether once copied a fact can ever become “clean” again. For example, could Gracenote sue FreeDB because some FreeDB users submitted CD track information that originally came from Gracenote?

If this passes, it will be yet another tool for cutting off the free-flow of information — and in spite of the whining of a few database maintainers they have plenty of tools already. Expect Wal-Mart to use this to suppress price-comparison sites like FatWallet, just as they’ve tried to do using the DMCA. Expect companies like Gracenote and WestLaw to deliberately “poison the well” of available information so it’s impossible to collect a competing database without being infected with infringing copied facts, just as WestLaw did with their copyright on page numbers for legal citations. Expect Clear Channel (owner of American Top 40 and controller of 60% of Rock radio programming) to sue independent DJs (all both of them) who have similar play lists, just as they use copyright law to shut down fan sites that post the Top-40 list now. Expect me to go hide under my desk until the smoke clears…

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