Database Piracy Bill Markup HR 2652

I have posted on the HyperLaw Web site a pdf version of the March 12 markup of HR 2652. The marked-up bill has not been placed on Thomas yet!!

In addition, I have cleaned up and included the witness statements from the February 12, 1998 hearing.

The marked up bill now excepts telephone listings prepared by telephone companies. However, it does not in any way address sole source information provided by others including television listings (Magill), sports scores (NBA), catalogue raisones of public domain art and images, and judicial opinions and statutory codifications. What happened here is that those who wanted access to telephone listings included mega communications companies like Bell Atlantic and MCI, who stood in the way of the bill -- thus the special purpose amendments. But the logic would apply to any information of this nature.

There are other attempts to buy off opponents with various provisions to protect educational and non-profit users. This is simplistic since educational and scientific users purchase information from commercial vendors and are best served by competition in the commercial sector that reduces the cost to these not-for-profits. It really does not make sense as law libraries have learned as their costs have soared.

There is a 15 year limit -- but, I consider this to be a foot in the door, because, once implemented, the publishers will come back more for term extensions.

One oddity -- the court is required to award attys' fees if there is a bad faith case brought against an education institution, but not if the bad faith was against a commercial publisher. Now, what is the sense of this. Only that library association oppose the bill in an effective manner.

Any litigator who reads this bill will see that it is stacked in favor of plaintiffs -- impoundment, jurisdiction, and proof provision, together with a completely ambiguous definition of database and the absence of any judicial history makes this an ideal chilling anti competitive weapon. And it will be so used.

Nor do the Bill proponents seem to understand that the concept of database protection was developed in EEC companies that have much more stringent anti-trust laws than in this country. [Remember that the merger of Reed Elsevier and Wolters Kluwer was squelched by European regulators, not by US regulators]. So this bill just adds one more weapon to the large publishers.

Statutory parsers should also check out the execption to the exception relating to SEC materials and could perhaps explain what that is all about.

This bill is designed to give copyright like protection to compilations, electronic or not, that have no originality or creativity. The protection provided to these databases is greater than the protection afforded to original databases, except as to term.

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:: Alan D. Sugarman       Federal Appeals on Disc tm CD-ROM  ::

:: President              Opinions of US Courts of Appeals   ::

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