HR 3261 and the ownership of facts [LWN.net]

The U.S. House Judiciary Committee approved HR 3261 (the "Database and Collections of Information Misappropriation Act") on January 21. As this bill represents yet another discouraging expansion of American copyright law, it merits a look. For those who want to read the full text, it is available in PDF format.

Unlike many bad intellectual property ideas, database protection is an idea being imported into the U.S. from Europe. Efforts to prevent the "misappropriation" of databases have been ongoing for some time; the first version of the current proposal - based on the 1996 EU database directive -- was considered in 1996. It did not pass, but anybody who has watched the legislative system in operation has learned that these things keep coming back until the interests behind them finally get what they want. That would appear to be happening here.

The core of the proposed law can be found in Section 3:

Any person who makes available in commerce to others a quantitatively substantial part of the information in a database generated, gathered, or maintained by another person, knowing that such making available in commerce is without the authorization of that person (including a successor in interest) or that person's licensee, when acting within the scope of its license, shall be liable for the remedies set forth in Section 7...

In plain English, what this law is saying is that copyright protections will be extended to databases, regardless of whether the information contained within those databases is, itself, copyrightable. Collections of information which is, itself, unprotected (pricing information, sports scores, weather data, etc.) will become protected. In a sense, this law allows somebody who compiles a database to own the facts found therein.

The definition of a "database" is reasonably broad; it is:

...a collection of a large number of discrete items of information produced for the purpose of bringing such discrete items of information together in one place or through one source so that persons may access them...

There are some interesting exceptions: network routing information, for example, is explicitly declared not to be a "database." The domain name registration database is also excluded. Beyond that, however, just about any collection of information counts.

Given the way other copyright laws have been stretched to the maximum, it is worth considering what sorts of information could be considered a database for the purposes of this law. Scientific, economic, and geographic data is the obvious application. Less obvious, but clearly covered, is a Linux distribution CD, or any collection of freely-available software. Certain professional sports organizations have long fought for ownership of game scores. Lists of audio CDs and the names of the tracks on them could be included. Network routing tables may be excluded, but the geographical location of IP addresses is a different story. The EU directive has been held to outlaw "deep linking" into web sites. If you go about reproducing Linus Torvalds quotes, you better be prepared to prove that they did not come from our definitive collection. And so on.

Hopefully many of these scenarios will not come to pass. But, even so, we do not really need another expansion of copyright law at this time. U.S. law has long held that expression is copyrightable, but ideas and facts are not. HR 3261 overrides that tradition by giving database creators a degree of control over the facts they have collected from elsewhere. This bill, while improved over previous versions, is still not something we want to see passed into law.

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How to fight HR 3261 and the ownership of facts

Posted Jan 29, 2004 2:41 UTC (Thu) by bignose (subscriber, #40) [Link]

So what's the best way to fight this?

Lobby? The forces that lobbied to get the bill passed didn't stop at defeat; they pushed the same law in different forms until it finally passed. It's doubtful citizen lobbying could have much lasting effect against that kind of power.

Civil disobedience? Finding databases of facts that now have owners, and publishing said facts, would appear to fall under this law. What good could come of a court case showing the absurdity of the new law?

Using the law to demonstrate absurdity? We could compile a database of the digits of pi, for instance, then sue every scientific organisation that publishes those digits. Or, as the article suggests, make a database of quotes from famous people, then sue anyone who publishes those quotes. What good could come of this?

Any other strategies?

How to fight HR 3261 and the ownership of facts

Posted Jan 29, 2004 7:14 UTC (Thu) by komarek (guest, #7295) [Link]

Please don't sue scientists trying to get work done. Please.

-Paul Komarek

How to fight HR 3261 and the ownership of facts

Posted Jan 29, 2004 7:37 UTC (Thu) by coriordan (guest, #7544) [Link]

> So what's the best way to fight this?

Pick one of the digital/information rights groups that are already fighting this and help them.

You'll find no shortage of good ideas, but there's always a shortage of people that are actually willing to do some work.

How to fight HR 3261 and the ownership of facts

Posted Jan 30, 2004 17:47 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

Using the law to demonstrate absurdity? We could compile a database of the digits of pi, for instance, then sue every scientific organisation that publishes those digits.

Since those scientists didn't get their value of pi from your database, and thus are not covered by this law, all you'd be demonstrating is the absurdity of a system that lets anyone sue anyone at the defendant's expense.

(And frankly, I don't think you'd demonstrate even that, because in many jurisdictions, you'd eventually be sued for making frivolous claims or vexatious litigation and lose).

HR 3261 and the ownership of facts

Posted Jan 29, 2004 3:04 UTC (Thu) by vblum (guest, #1151) [Link]

Hm. I have read only the article, not the bill itself, but is it really on copyright? The text
excerpts do not mention it.

One could also see the cited provisions as somewhat beneficial, and I think that is what the
underlying European version might have intended. Unlike geographical, scientific etc
databases, data collections which include personal information on anyone can be powerful
tools to abuse when in the wrong hands. The underlying fear is probably "What could the
Nazis accomplish today, if they came intro power and into possession of an all-
encompassing data collection?" May seem far-fetched to Americans, but if you read about
the early years of the Nazi regime and how they consolidated power, you may understand
what that came from.

However, there are much more mundane examples. For instance, I am sick and tired of the
fact that my entire credit history information can be bought by anyone who happens to
come across my SSN. If you have always lived within that system, you might not know. But if
you entered as a newcomer, a happily working professional, and you are denied some basic
service for the 3rd time because you have no credit history in the US, you may understand.
Not to mention countless letters of junk mail with unnecessary credit card offers for added
mockery.

I understand that this bill does not reign in the abuse of credit history data in the U.S. But,
that database is an excellent example of how such collections can be abused when handled
maliciously. And trust me, it is done maliciously.

Anything that reigns in the free traffic of personal data is a good thing. Yes, the bill should
have written "privacy protection" and not "abstract databse" on it for that. But do not reject
such legislation per se. I'd be mighty glad if some entities were denied the freedom to sell
my personal data.

HR 3261 and the ownership of facts

Posted Jan 29, 2004 9:12 UTC (Thu) by ken (subscriber, #625) [Link]

Read the pdf it's really not about protecting people from ending up in good only knows what
database. It dose try to protect publically accessable databases from being copied.

bassically it makes it illigal for someone to to extract infomation from ebay or simmilar
entity even if you actually are allowed to read all the infomation.

At least that was the impression I got.

HR 3261 and the ownership of facts

Posted Jan 29, 2004 9:16 UTC (Thu) by beejaybee (guest, #1581) [Link]

Yes, as I understand it, what the EU is trying to restrict is the propogation of personal data without the consent of the data subject.

I wonder which of the US-based megacorporations is funding the current attempt to pervert this into yet another way of restricting competition and so increasing their profits.

The principle here is not that databases should be copyrightable but that information personal to a "data subject" belongs to that data subject (person or corporation), not to the owner/maintainer of the database in which the information happens to be stored.

This is a real issue with the impending introduction of RFID tags, which will for example enable retailers to discover what brand of underwear you are wearing (if any!), where you bought it from and how much you paid by linking the IDs scanned from the tags you're inadvertently carrying at the shop entrance and linking into the database.

If anyone wants an idea for a real killer gadget, how's about one (linux powered of course) which will permanently disable or garble the content of RFIDs.

HR 3261 and the ownership of facts

Posted Jan 29, 2004 15:30 UTC (Thu) by kfiles (subscriber, #11628) [Link]

I wonder which of the US-based megacorporations is funding the current attempt to pervert this into yet another way of restricting competition and so increasing their profits.

Think of the big directory companies: Thompson, West Group (WestLaw), and Reed Elsevier (Lexis-Nexis).

--kirby

HR 3261 and the ownership of facts

Posted Jan 29, 2004 18:52 UTC (Thu) by allesfresser (subscriber, #216) [Link]

>If anyone wants an idea for a real killer gadget, how's about one (linux powered of course) which will permanently disable or garble the content of RFIDs.

Wouldn't that be a DMCA violation? :-(

HR 3261 and the ownership of facts

Posted Jan 29, 2004 4:26 UTC (Thu) by Per_Bothner (subscriber, #7375) [Link]

In a sense, this law allows somebody who compiles a database to own the facts found therein.
The compilation, but not individual facts.
If you go about reproducing Linus Torvalds quotes, you better be prepared to prove that they did not come from our definitive collection.
You can reproduce a few quotes, even if you use the datebase, as long as you don't quote a "quantively substantial part" of it.
U.S. law has long held that expression is copyrightable, but ideas and facts are not. HR 3261 overrides that tradition by giving database creators a degree of control over the facts they have collected from elsewhere.
It's compatible with the tradition: The facts are not copyrightable, but the collection is an expression that might be copyrightable. Where the extension is in allowing a noncreative (mechanical) expression of facts to be copyrightable. The classical example is telephone directories, which in current law can be freely copied, but not according to HR 3261.

HR 3261 and the ownership of facts

Posted Jan 29, 2004 9:25 UTC (Thu) by ekj (subscriber, #1524) [Link]

While I agree that this bill is no good idea I think that LWN is unreasonably alarmist, which is untypical.

It is correct that this bill would make wholesale copying of a database someone else has gathered unlawful, but this does explicitly not cover the individual facts found therein. Only making available a "quantitatively substantial part of" a database is disallowed, and a database is defined as: "a collection of a large number of discrete items of information ..."

Thus, while this law *would* prevent you from say copying your local telephone-book, it would *not* prevent you from reporting individual facts from it.

It's somewhat unclear what "a large number" and "a quantitatively substantial part of" means in practice, but it seems rather obvious that for example the track-listing on the backside of a CD does not contain a "large number" of facts, more like 15-20 for a typical CD. Thus it could still be copied wholesale.

A more interesting question is what happens under this law when 2 or more entities choose to gather and maintain the same, or substantially the same database. Making available comercially a substantial part of the information in someone elses database is unlawful, the law does not appear to make any exception for the case where you have gathered the same facts for yourself.

HR 3261 and the ownership of facts

Posted Jan 29, 2004 10:31 UTC (Thu) by mauvaisours (subscriber, #6130) [Link]

I do agree that LWN is unreasonably alarmist : this bill covers only the database itself, it does NOT cover the facts.

Take the example of sports results : if you create your own database (which is not difficult to do, just look at a sports channel 15 minutes every evening, or take a subscription to your favorite sports newspaper) to collect the datas without access to the database of the professional sports organization, then you can not be held liable for that and can do whatever you want with it.

HR 3261 and the ownership of facts

Posted Jan 29, 2004 15:35 UTC (Thu) by cdmiller (subscriber, #2813) [Link]

Alarmist eh? Prepared to pay the legal bills necessary to prove you got those sports scores from the television every 15 minutes to create your own database? Or will it be cheaper to settle out of court?

HR 3261 and the ownership of facts

Posted Feb 2, 2004 17:53 UTC (Mon) by Ross (subscriber, #4065) [Link]

But if those sources you quote originated with the database how have you
avoided infringing on their "expression" of the facts? Wouldn't you have
to attend or have people who did attend report on the majority of the
scores and only use a small number from other sources?

Now there are other issues. Enforcement. If everyone can copyright this
list of information and all plausably claim independent authorship how
can anyone be found to be infringing?

HR 3261 and the ownership of facts

Posted Jan 29, 2004 22:26 UTC (Thu) by hingo (guest, #14792) [Link]

Me too...

Having lived under a similar law in Europe, I was kind of surprised to see LWN writing about this. To me the law about database copyright is mostly something that limits the time of those copyrights to much less than for other works. Not a bad thing IMHO.

It's not the copyright laws that are the problem you know. Indefinately extending the time of protection, DMCA & EUCD, software patents, etcetc... those are the bad things. Remember that also the GPL relies on copyright law.

That being said, we obviously won't be surprised when SCO or some other US company finds a way to pervert this law. But that is not the fault of the law, see my comment below...

It's somewhat unclear what "a large number" and "a quantitatively substantial part of"

Not being a lawyer, I've always taught it means copying practically everything. As has been said, the facts in the database do not become copyrighted, only the database as a (at least almost) whole.

henrik

Naive comments

Posted Jan 29, 2004 11:30 UTC (Thu) by rjw (guest, #10415) [Link]

Some comments here are calling LWNs comments alarmist. These posters are being incredibly naive....

The whole point of this bill is not to "protect" any particular database. It is to allow the incumbents in information based markets ( map dbs, law dbs , genetic dbs) to maintain a a monopoly over those markets.

Lets say there is, in the next few years, a project to generate really Free accurate maps of the world. The project gets started, and all the incumbents get together and sue under this act. How on earth can the project ever hope to prove they did not reproduce the information from existing maps?

How can anybody compiling FACTS ever hope to prove that they compiled them independently, and didn't copy from another database covering the same facts?

Expect to see FreeDB and MusicBrainz shut down by Gracenote when this passes.

Naive comments

Posted Jan 29, 2004 14:45 UTC (Thu) by jharding (guest, #1102) [Link]

How can anybody compiling FACTS ever hope to prove that they compiled them independently, and didn't copy from another database covering the same facts?

I have not read the entire PDF, but I assume that the burden of the proof has to be on the side of the owners of the allegedly copied database. In Chile for example (with a legal system and laws in this respect similar to Europe's), databases are protected and so are telephone books. In one case regarding the copying of such a telephone book the company who made the original compilation had to prove that the second company copied this compilation. It did so by showing that it had the information gathered long before the second company and that the same typos that occured in one compilation also appeared in the second, proving that both compilations must have had the same source.

So if the burden of the proof is on part of the party claiming to own a database that has been copied by another party, I completely agree that the comments are somewhat alarmistic.

but who pays...

Posted Jan 29, 2004 19:17 UTC (Thu) by pflugstad (subscriber, #224) [Link]

Yes, but under the US legal system the person/company being sued has to pay their own bills, so fishing expeditions (threatening to sue in order to get a out-of-court settlement) are routine. In Chile, I expect the loser had to pay the legal bills, meaning that this type of shake down doesn't happen nearly so often.

but who pays...

Posted Jan 29, 2004 22:16 UTC (Thu) by hingo (guest, #14792) [Link]

So you are really saying that the US legal system is flawed *in general* and that even a good law can be abused by the rich. I'd have to say I agree. But from that does not follow, that this law is bad, unless you propose that the US in its current state would be better off without any laws at all.

henrik

US going lawless?

Posted Feb 6, 2004 0:17 UTC (Fri) by xoddam (subscriber, #2322) [Link]

There's a case to be made for this.

In fact it's being made now at the western end of Cuba...

HR 3261 and the ownership of facts

Posted Jan 29, 2004 12:53 UTC (Thu) by ordonnateur (guest, #6652) [Link]

Some of your previous posters seem to have confused Data Protection law with that of Database Rights.
Data Protection concerns the use of personal information in databases (and in record keeping systems generally whether computerised or no). It restricts what collectors and maintainers of such data can use it for and who it can be passed on to. It is therefore part of the law on privacy.
Database Rights are a form of copyright, they recognise that compiling a substatial database is not effortless and that the compiler may reasonably expect that effort to be recognised and protected.
Both of the above can of course be abused and subverted so far from the original intention that they may serve only to preserve and extend the position of already powerful and over-protected interests.

HR 3261 and the ownership of facts

Posted Jan 29, 2004 14:30 UTC (Thu) by jeremiah (subscriber, #1221) [Link]

Not sure how to feel about this law. I think the stated intent could be a good thing, but as usual something has gone horribly wrong. Congress has this horrible habit of making laws overly broad.

The corporate side of me sees it as a goodthing though. I've spent years coding a system that agregates court records so that the courts can have a sort of portal with the public. It's a totaly free thing for the public, but I spend a large amount of my time blocking companies scraping the data, and then reselling it for a profit.

HR 3261 and collection copyrights

Posted Jan 30, 2004 17:40 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

Under US copyright law, you cannot have copyright in a collection of facts unless you compile them in some creative order. The standard example case is a phone book. Case law holds that alphabetical order is not creative enough, so you cannot have copyright in a phone book.

I'm not familiar with the chess game case, but if you're right, I guess it must pass the order test.

The "order" rule gets hard to interpret when computers come into the picture, but the point is that this law would give you something similar to copyright in a phone book database, even though you couldn't have copyright in it.

HR 3261 and the ownership of facts

Posted Jan 30, 2004 11:11 UTC (Fri) by dps (subscriber, #5725) [Link]

Most of the proposals for making this law stupid miss a critical point: there is only a case under copyright law *if you can show copying*. The is no case even if I create byte for byte indentical database provided I did not copy yours.

Ergo, a database of jokes would *not* allow you to sue anyone who independently creates exactly the same database, let alone comedians. Even in the abcense of this law silly stuff still applies---I have spent about a week of time the boss pays me for recreating BT's local/national call matrix and a list of international dialing codes, including which are mobiles (both of which are databases as HR 3261 defines the term).

At least one person we spoke to *could* have given us the local call/national call matrix but refused to do so. Not only did they have the matrix but we had a relationship with them and a good reason for wanting the data too.

BTW I interpret the copyright as covering the database as a whole and not the indicidual facts within it.

Alarm is exactly what is called for here

Posted Jan 30, 2004 20:30 UTC (Fri) by Max.Hyre (subscriber, #1054) [Link]

Anyone who thinks otherwise hasn't been paying attention lately.

There is no worthy intent behind this bill. There are plenty of databases of facts out there, and curious folks are making more all the time. Can you conceive of a way that society benefits if I'm not allowed to collect directly-available facts and toss them into my website? Make no mistake---this is directly about taking utility from the citizens and giving it to companies so they may extract more money.

If you doubt this could be bad, cast an eye back over the DMCA cases we've seen which have nothing to do with the alleged intent of the law, but which succeed due to the obtuseness of the U.S. legal system. You can lose when you're in the right, simply because you can't afford to prove it. Possibly worse, you can find yourself refraining from exercising your rights because you can't be sure where the edge of the minefield is.

As one of ESR's aphorisms has it: The road to Hell is paved with good intentions. The way to discern evil is not by its intent, but by its effect.