HR 3261 revisited

A year or two ago, in response to the Supreme Court's ruling in Eldred v. Ashcroft which effectively enshrined perpetual copyright as the Law of the Land, I sarcastically commented that we should look next for the corporate conglomerates to try to bribe their way into "ownership" of the existing public domain.

I thought I was being sarcastic. Little did I know.

One of the basic principles of copyright law is that it protects only a particular expression of an idea or fact, not the fact itself. You can't, for example, "own" the fact that the sky is blue just because you happened to write it down this morning -- you own only the particular prose or poetry in which you happened to record this fact, not the fact itself. Nor can your telephone company "copyright" your telephone number, prohibit you from giving it out to your freinds or to potential employers, and insist that it be disseminated only through their pay-per-use Directory Assistance service. Nor can Merriam-Webster "own" the correct pronunciation of a word, nor can WestLaw demand a fee every time a lawyer cites the facts or the decision in a case discussed in their legal publications, nor can Dutch publishing conglomerate Reed-Elsevier claim perpetual copyright "ownership" of the facts discussed in one of their extortionately-overpriced academic journals and thus prohibit medical researchers from acting on those facts. Intellectual ownership of facts -- or , more accurately, of useful applications of facts -- is properly the realm of patent law, which has a much shorter term of protection and different legal standards of infringement.

That's all due to change, according to the proposed "Database and Collections of Information Misappropriation Act", HR 3261. (Text and legislative information can be looked up here.) Under this bill, which, according to the U.S. Chamber of Commerce is largely the result of persistent lobbying from multibillion dollar Dutch conglomerate Reed Elsevier, anyone who provides public access to "a quantitatively substantive part of" a database would be in violation of the Act and liable for triple whatever damages the database owner cares to claim. As the Chamber's white paper on the Act says, "[I]t is unclear whether this definition would allow a person to let co-workers borrow his dictionary". The same paper goes on to cite examples of ways in which financial planners and medical researchers, for example, could be significantly impaired in their legitimate and timely use of factual information if those facts were held to be "owned" by a database which incorporated them, or a news service which reported them.

There is an exclusion for nonprofit educational and research institutions, but it is vague and subject to court review -- which means that a multibillion-dollar conglomerate could use the threat of hugely expensive legal proceedings leading up to such a review to effectively squash any library or private individual that attempts to disseminate factual information to which they have laid a claim and which does not have their immense legal resources.

Lest I be thought alarmist, consider that this bill is explicitly aimed at eliminating the legal principle established in Feist v. Rural Telephone, a 1991 case in which the Supreme Court established the principle that facts are not copyrightable. That case involved a telephone company which claimed copyright "ownership" of its customers' telephone numbers and sought to prohibit them from being disseminated by anyone other than the telephone company. That's the kind of behavior that Reed Elsevier and the other supporters of this bill wish to legitimize.

From Justice O'Connor's opinion in Feist: "Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place."

More information is available here, here, here, and here. The American Library Association's Washington Office Newsline alert about HR 3261 is particularly useful for those who have the gumption to speak up on this latest giveaway of the intellectual commons to multinational conglomerates, since it lists the Congresscritters who are on the committee currently considering the bill.

This is not just a problem for Americans, either, given the American government's ongoing trend of using the carrot-and-stick of trade negotiations to force other governments into "harmonization" (i.e., slavish imitation) of grossly-overreaching intellectual property laws bought and paid for by industry lobbyists. Australia is just the latest example.