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Hands Off! That Fact Is Mine

By Kim Zetter
Wired.com

Mar. 03, 2004

Imagine doing a Google search for a phone number, weather report or sports score. The results page would be filled with links to various sources of information. But what if someone typed in keywords and no results came back?

That's the scenario critics are painting of a new bill wending its way through Congress that would let certain companies own facts, and exact a fee to access them.

Ostensibly, the Database and Collections of Information Misappropriation Act (HR3261) makes it a crime for anyone to copy and redistribute a substantial portion of data collected by commercial database companies and list publishers. But critics say the bill would give the companies ownership of facts -- stock quotes, historical health data, sports scores and voter lists. The bill would restrict the kinds of free exchange and shared resources that are essential to an informed citizenry, opponents say.

The House Judiciary Committee approved the bill and the commerce committee is expected to review it on Thursday.

The bill's biggest backers are the Software and Information Industry Association; Reed Elsevier, which owns the LexisNexis database; and Westlaw, the biggest publisher of legal databases.

Art Brodsky, spokesman for public advocacy group Public Knowledge, says the bill would let anyone drop a fact into a database or a collection of materials and claim monopoly rights to it. This would contradict the core principle of the Copyright Act, which states that mere information and ideas cannot be protected works.

Under the terms of the broadly written bill, a public-health website could be deemed in violation of the law for gathering a list of the latest health headlines and providing links to them on its home page.

Google would be in violation for trolling media databases and providing stories on its news page.

An encyclopedia site not only could own the historical facts contained in its online entries, but could do so long after the copyright on authorship of the written entries had expired. Unlike copyright, which expires 70 years after the death of a work's author, the Misappropriation Act doesn't designate an expiration date.

"The law of unintended consequences in this case has the potential to be huge," Brodsky said.

Commercial database companies say they invest millions of dollars in collecting, editing and organizing information for their customers, but don't have adequate protection to prevent someone from stealing the information to compete with them. They say the public will lose access to information if companies are deterred from building databases because of theft.

But critics say that letting companies own facts would take information out of the public domain and make it accessible only to those who could afford it. They also say that copyright laws and usage agreements already protect databases.

Keith Kupferschmid, vice president of the intellectual property and enforcement division of the Software and Information Industry Association, says critics have mischaracterized the bill and exaggerated its reach. He cites 10 criteria that would have to be met before a company could claim misappropriation of its data. The list includes proof of injury.

Kupferschmid says the law doesn't apply to bits of information taken from a database, such as in the case of a researcher working on an academic paper.

"The bill only applies where someone takes a substantial portion of the database and uses it in a way that causes commercial harm to the provider of the data. You have to prove an injury, and it needs to be significant," he said.

But Joe Rubin, executive director of technology and e-commerce for the U.S. Chamber of Commerce, says the bill's threshold for proving "commercial harm" is very low.

He cited the example of a financial planner who gathers information from several sources, like Securities and Exchange Commission filings, public documents and the Dun & Bradstreet business database.

"If he assimilated the information and put it into a report for his client, under this bill that activity would be illegal and would subject him to lawsuits from every company whose website he accessed," Rubin said.

He also says that despite Kupferschmid's characterization, the bill puts no limit on the amount of information someone needs to take from a database to violate the law.

A 1997 case between Motorola and the National Basketball Association could serve as an example. After Motorola sent basketball scores to its customers' pagers, the NBA sued the company for misappropriating its property. A U.S. Appeals Court, however, ruled against the NBA.

Opponents of the bill include Yahoo, Google, the American Association of Libraries and a host of technology and financial-services companies such as Verizon, Bloomberg and Charles Schwab.

"All of the companies opposed to the bill produce some of the most massive databases in the world, yet they feel they already have adequate protections for them," Rubin said. "There really is no necessity whatsoever for this legislation."