February 2004

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…

References

• How the Current Congressional Database Protection Bill Would Go Beyond Current Law, and Why It is Unconstitutional and Misguided (Brandy Karl, FindLaw, 11 February 2004)
• HR 3261 and the ownership of facts (Cobert, LWN, 28 January 2004)
• Chamber urges House to oppose H.R. 3261 “Database and Collections of Information Misappropriation Act” (Thomas J. Donohue President and CEO, U.S. Chamber of Commerce, 19 January 2004)
• ACLU Letter to the House Committee on Energy and Commerce Urging Opposition to the “Database and Collections of Information Misappropriation Act” (Laura W. Murphy & Marvin Johnson, ACLU, 13 September 2003)
• American Library Association Action Alert
• EFF Action Alert
• PublicKnowledge Action Alert
• West Loses Copyright Claim over Page Numbers (Carol Ebbinghouse, InfoToday, 21 June 1999)
• Note On West Copyright Of Page Numbers Of Published Judicial Decisions (James Love, Taxpayer Assets Project, 1 November 1993)
• WIPO Database Proposal and HR 3531 (Stanford Copyright & Fair Use Site, 1998)
• Collections of Information Antipiracy Act (HR 2652, 20 May 1998)
• DIRECTIVE 96/9/EC… on the legal protection of databases (The European Parliament And The Council Of The European Union, 11 March 1996)

LawMeme has a nice side-by-side comparison of last week’s oral argument in the MGM v. Grokster case and the 1983 Supreme Court oral arguments in the Sony v. Betamax case. Their conclusion: the arguments being used against Grokster are the same ones that lost when the content industry tried to kill the VCR 20 years ago.

Correction: As a commenter mentioned, the case was Sony v. Universal not Sony v. Betamax — Sony made Betamax, & was sued by Universal Studios.

Groklaw has a quick summary of SCO CEO Darl McBride’s recent talk at Harvard.

SCO’s arguments are from so far out on both legal and factual grounds the only question I have is whether they just lose their case or if there will be jail terms for any of their officers as well. As for the Linux community, SCO is a distraction, but hopefully it will also act like like an immunization made from an almost-dead virus — no real danger, but it prepares the body for a similar but more powerful attack later.