Re: Life under stupid Database legislation

From: Alan D. Sugarman <sugarman[_at_]hyperlaw.com>
Date: Thu, 18 Jun 1998 09:34:09 -0400

Several law schools for the last several years have been disseminating opinions of the US Courts of Appeals on their Web sites. Some of the schools claim a copyright in html versions of these opinions, in particular Emory. These schools have special "arrangements" with the Courts of Appeals, but I do not thing this is in writing. Many of the Circuit Courts are not hosting their own web site, and off loading that responsibility onto these schools. In a sense, some of these repositories have become "semi-official" repositories -- but, remember that some schools "add-value" and do more than provide an ftp source.

Under the database bill, would it be legal to download or mirror the entire web site collection of these opinions from a school, and then offer them for sale etc.

This is what the bill states:

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Sec. 1204. Exclusions
`(a) GOVERNMENT COLLECTIONS OF INFORMATION-
`(1) EXCLUSION- Protection under this chapter shall not extend to
collections of information gathered, organized, or maintained by or for a government entity, whether Federal, State, or local, including any employee or agent of such entity, or any person exclusively licensed by such entity, within the scope of the employment, agency, or license. Nothing in this subsection shall preclude protection under this chapter for information gathered, organized, or maintained by such an agent or licensee that is not within the scope of such agency or license, or by a Federal or State educational institution in the course of engaging in education or scholarship.

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This is what the House Committe Report States:

                      4. Section Four--Exclusions                       


      Subsection (a) rules out protection for government collections of    

   information. It provides that the act's protection does not extend to    collections of information gathered, organized or maintained by or for    governmental entities, their employees, agents, or exclusive licensees.    It is designed to ensure that information collected by the government at    taxpayer expense will be made available for public knowledge and basic    research. The provision responds to concerns that the bill would thwart    access to government information currently available to the public,    especially to the scientific, research and educational communities. The    exclusion is broader than the similar provision in section 105 of the    Copyright Act; it applies to state and local governments as well as the    federal government, and covers collections prepared for the government    by independent contractors and exclusive licensees as well as employees.

      This subsection does not apply, however, to collections of    information gathered, organized or maintained by agents or licensees of    the government created outside the scope of their agency or license, or    by Federal or State educational institutions in the course of engaging    in education or scholarship. When a party retained by the government to    perform one particular task also invests in producing databases that add

   value to the information it has produced or collected for the           
   government, it should not be precluded from protection. Similarly,      
   educational institutions that happen to be government owned should not  
   be disadvantaged relative to private institutions when producing        

   databases unrelated to the provision of regulatory government functions.

Alan D. Sugarman
<sugarman[_at_]hyperlaw.com> Received on Thu Jun 18 1998 - 13:24:18 GMT