Subject: Fw: Major developments re: Database Protection Bills
patricem@ombwatch.org
Date: Mon, 17 Aug 1998 10:48:48 -0500
Date: Mon, 17 Aug 1998 10:48:48 -0500 From: patricem@ombwatch.org Subject: Fw: Major developments re: Database Protection Bills To: gov-info-access@ombwatch.org, roundtable@cni.org References: <Pine.GSO.3.95.980814084948.11282A-100000@well.com> Message-Id: <Chameleon.903365915.patrice@patrice.rtknet.org>
FYI. The Clinton Administration has recently announced its
position on two bills -- H.R. 2652 / S. 2291, which are
intended to create new legal protections for databases.
The posting below is from Alex Fowler to the Declan McCullagh's
politech list.
Patrice
-------------------------------------
Patrice McDermott
patricem@ombwatch.org
Date: 08/17/98
Time: 10:48:48
-------------------------------------
------------------------
From: Declan McCullagh <declan@well.com>
Subject: FC: Major developments re: Database Protection Bills
Date: Fri, 14 Aug 1998 08:50:25 -0700 (PDT)
To: politech@vorlon.mit.edu
---------- Forwarded message ----------
Date: Thu, 13 Aug 1998 18:02:24 -0400
From: Alexander Fowler <afowler@eff.org>
To: declan@well.com
Subject: Major Developments re: Database Protection Bills
Declan,
Please excuse the lengthy message, but I'd like to follow up on
my July 15th message to you regarding H.R. 2652 / S. 2291, "The
Collections of Information Antipiracy Act." I thought you might
be interested to learn that the Clinton Administration has
recently announced its position on these two bills, which are
intended to create new legal protections for databases.
The Administration's position was articulated in an August 4,
1998 letter from the Department of Commerce to Senator Leahy.
The letter was based, in part, on an analysis of the proposed
legislation prepared as a memorandum to the White House by the
Department of Justice. The Administration adumbrates in both of
these documents several serious concerns (see below), including
that the proposed legislation is possibly unconstitutional,
that it may increase the cost of using data, that it lacks a
necessary balancing mechanism like fair use, and that, without
changes, the bill could undermine the future digital
environment and evolving markets for information.
Hopefully, this will not bode well for either bill, even though
H.R. 2652 passed the House again as Title V of the WIPO bill
and S. 2291 is now pending action in the Senate. It is my
understanding, however, that unless the Senate agrees to move
on the issue in the context of the WIPO bill, there will be a
hearing in the Senate in early September.
The two Administration documents have been rekeyed and uploaded
on the Web. I've included the URLs and excerpted the two
Administration documents below. Lastly, last week's edition of
_Science_ featured an article about this issue from the
scientific/research perspective, including a very illustrative
case study. It is my understanding that _Science_ is making
the article available on its Web site free of charge. See
Science, Volume 281, Number 5378 Issue of 7 Aug 1998, pp. 786 -
787; http://www.sciencemag.org/cgi/content/full/281/5378/786.
Let me know if you have any questions.
Sincerely,
Alex Fowler
EFF
http://www.itaa.org/dbadmin.htm
August 4, 1998
Honorable Patrick J. Leahy
Ranking Minority Member
Committee on the Judiciary
United States Senate
Washington, DC 20510-6275
Dear Senator Leahy:
In the coming weeks, the Senate may consider S. 2291, the
Senate counterpart to H.R. 2652, the "Collections of
Information Antipiracy Act."
The Administration supports legal protection against commercial
misappropriation of collections of information. We believe that
there should be effective legal remedies against "free-riders"
who take databases gathered by others at considerable expenses
and reintroduce them into commerce as their own. This situation
has arisen in recent case law and we believe that digital
technology may increase opportunities for such abuses.
At the same time, the Administration has a number of concerns
with H.R. 2652, including the concern that the Constitution
imposes significant constraints upon Congress's power to enact
legislation of this sort.
[...]
With these principles in mind, the Administration has several
specific concerns with the present provisions of S. 2291 and
H.R. 2652, including the following:
+ The Administration is concerned that aspects of H.R. 2652 may
increase transaction costs in data use, particularly in
situations where larger collections integrate datasets
originating from different parties or where different parties
have added value to a collection through separate contributions
of gathering, refining, and/or maintaining the data. This is
especially important for large-scale data management
activities, where public investment has leveraged
contributions from the private and non-profit sectors.
+ The Administration agrees with section 1204(a)'s general
intent that data collected with taxpayer funds not be subject
to any database protection regime. However, we are concerned
that H.R. 2652 does not fully take into account the data
policies set forth in relevant OMB circulars and the many
different arrangements under which government-funded data are
gathered, maintained, and/or organized or under which the data
may be subsequently redistributed. It is important that
legislation not create inappropriate opportunities of
incentives to "capture" government information or
government-funded data with relatively small investments in
maintenance, organization, or supplemental data.
+ Given the difficulty of foreseeing how "substantiality,"
"extraction" and other terms in H.R. 2652 will play out in a
complex and rapidly changing environment, we are concerned that
H.R. 2652 lacks a balancing mechanism analogous to the fair use
doctrine in copyright sufficient to address the wide range of
circumstances in which information is aggregated, used, and
reused. We are especially concerned that the section 1203(d)
exception for non-commercial research and educational uses does
not ensure that legitimate non-commercial research and
educational activities are not disrupted by the prohibition
against commercial misappropriation. Equitable issues of access
and use may be especially important in markets exclusively
served by a single data producer. Finally, we believe it is
important to make clear that the legitimate data-gathering
activities of law enforcement and intelligence agencies will
not be affect by the bill.
+ While the Administration appreciates the efforts of the House
Judiciary Committee to define "potential" markets as used in
section 1202, we remain concerned that this definition may be
broader than market definitions used in other areas of the law,
that the definition could be subject to manipulation by private
entities, and that potentially the definition too easily
exposes legitimate business practices to substantial liability,
especially given the provisions forcalculating damages.
Congress should carefully consider how encompassing "potential
markets" may affect entrepreneurs who develop new products and
services that add significant value and do not compete directly
with the original.
+ While we agree with the House Judiciary Committee's decision
to shield non-profit researchers and educators from any
criminal liability under section 1207, we believe that the
existing criminal provisions could be further refined,
particularly by drawing a distinction between misdemeanor and
felony conduct and requiring minimum amounts of damage under
each.
+ The Administration believes that, given our limited
understanding of the future digital environment and the
evolving markets for information, it would be desirable for the
bill to include a provision for an interagency review of the
law's impact at periodic intervals following implementation of
the law. This would be consistent with laws and proposed laws
in other emerging technologies where Congress has mandated
examination of a new law's economic impact. Such a study might
be conducted under the auspices of the Secretary of Commerce in
consultation with the Office of Science and Technology Policy
and the Register of Copyrights.
+ The Department of Justice has serious constitutional concerns
that the First Amendment restricts Congress's ability to enact
legislation such as H.R. 2652, and that the Intellectual
Property Clause also may impose some constraints on legislation
of this sort. We note that those constitutional concerns are
closely related, in many instances, to some of the points
described above, particularly fair use, the effects on
potential markets and transformative uses of data.
We would be happy to elaborate on these constitutional
questions and policy aspects of H.R. 2652 and S. 2291.
Thank you for your time and consideration.
Sincerely,
[signed]
Andrew J. Pincus
http://www.acm.org/usacm/copyright/doj-hr2652-memo.html
U.S. Department of Justice
Office of Legal Counsel
Washington, D.C. 20530
Office of the Deputy Assistant Attorney General
July 28, 1998
MEMORANDUM FOR WILLIAM P. MARSHALL ASSOCIATE WHITE HOUSE COUNSEL
From: William Michael Treanor
Deputy Assistant Attorney
Office of Legal Counsel
Re: Constitutional Concerns Raised by the Collections of
Information Antipiracy Act, H.R. 2652.
You have asked for our views on the constitutionality of the
Collections of Information Antipiracy Act, H.R. 2652, 105th
Cong. (1998), which passed the House on May 19, 1998. H.R. 2652
raises very difficult, and quite novel constitutional questions
which are the subject of this memorandum. The following
analysis is preliminary and general. We would, of course, be
pleased to provide views directed to more specific questions
that you might have.
The object of H.R. 2652 is, in effect, to provide a
quasi-property right in certain collections of information that
required great effort to compile. H.R. 2652 would impose
liability upon anyone who "extracts, or uses in commerce, all
or a substantial part, measured either quantitatively or
qualitatively, of a collection of information gathered,
organized, or maintained by another person through the
investment of substantial monetary or other resources so as to
cause harm to the actual or potential market of that other
person, or a successor in interest of that other person for a
product or service that incorporates that collection of
information and is offered or intended to be offered for sale
or otherwise in commerce by that other person, or a successor m
interest of that person " Id. S. 2 (proposed 17 U.S.C. S.1202),
In assessing the constitutional concerns raised by the bill,
which would provide what is known as "sweat of the brow"
protection for certain compilations of factual material, we
address three related questions:
(i) whether the bill constitutes a valid exercise of
Congress's power under the Intellectual Property Clause
of the Constitution Art. I, S. 8, cl. 8, which provides
that Congress shall have the power "to promote the
Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries";
(ii) whether, if the bill does not constitute a valid
exercise of Congress's power under the Intellectual
Property Clause, it constitutes a valid exercise of
Congress's power under the Commerce Clause, or whether
the Intellectual Property Clause precludes such
Commerce Clause legislation; and
(iii) whether, if the Intellectual Property Clause does
not preclude Congress from exercising its commerce
power to enact such legislation the First Amendment
restricts such an exercise of the commerce power.
As to the first question, the Supreme Court's decision in Feist
Publications. Inc., v Rural Tel. Serv. Co., 499 U.S. 340
(1991), indicates that Congress may not, pursuant to the
Intellectual Property Clause of the Constitution create such
"sweat of the brow" protection for compiled facts, at least
insofar as such protection would extend to what the Court
termed the nonoriginal portion of such a compilation. As to the
second and third questions, Supreme Court precedents do not
provide clear guidance; it is fair to say, however, that either
or both the Intellectual Property Clause and the First
Amendment may impose limitations on the exercise of
congressional power under the Commerce Clause that would raise
serious constitutional concerns regarding the constitutionality
of H.R. 2652.[1]
[...]
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Alexander Fowler
Director of Public Affairs
Electronic Frontier Foundation
E-mail: afowler@eff.org
Tel/Fax: 202 462 5826 (East Coast)
Tel: 415 436 9333; Fax 415 436 9993 (West Coast)
You can find EFF on the Web at <http://www.eff.org/>
EFF supports the Global Internet Liberty Campaign
<http://www.gilc.org/>
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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