Re: HR 354 Antipiracy Bill

On Thu, 26 Aug 1999, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
>
> FYI - following is a copy of my letter to Congress:
>
> Hon. Howard Coble August 26, 1999
> U.S. House of Representatives
> Washington DC 20515
>
> Dear Rep. Coble:
>
> I wish to express my opinion of the "Collections of
> Information Antipiracy Act (HR 354) which was
> introduced earlier this year.

Perhaps those of us who do not share Mr. Henderson's opinion should send Representative Coble a response.

These are some of the points that I can think of off hand:

1. If Feist is a constitutional decision, as it says it is, then the proposed act would be unconstitutional.
2. Print compilations are available for free in libraries.
3. Most users of the compilations that I know are interested in particular bits of information, not the entire compilation. They can just borrow the hard copy compilation and find the facts that they want and are not required to buy an entire copy.
4. If there is only a limited market for the entire compilation then it can be sold under contract to the few who want it with non-disclosure agreements, etc.
5. Electronic compilations can be made available, as are Lexis and Westlaw, for a fee and be protected by technological means, such as passwords and encryption. (This is one of the areas where the EAR's restrictions on the publication of encryption software causes significant economic problems.)
6. If users often consult the electronic database, they will want to buy the hard copy, even if the database is free. Note that the availability of Lexis and Westlaw has not destroyed the market for West's reports, although they may have dented it. And note that West still gets a nice return from Westlaw.
7. Under standard economic theory the benefits to society is maximized when goods are sold as their marginal cost. And the marginal cost of supplying electronic copies is less than ten cents. Since contract and technological means and ordinary copyright law give electronic publishers a more than ample chance to recover their investment there is no need for additional legal protection for compilations of information.
8. If someone does succeed in copying an electronic database there will still be a market for the original if the original has a a reputation for accuracy, and particularly if it is updated. The fact that one can get all the modern federal cases from several free sources has not put Lexis and Westlaw out of the business of selling access to their compilations of federal cases; on the other hand it has made the contents of the law available to many who could not otherwise have afforded it.
9. Considering all of the above factors, if there are any compilations of such little value that they cannot get a decent return on their investment when published electronically, then it is hard to see how society would be harmed if the compilations were not made available by electronic means.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu/
        NOTE: junger[_at_]pdj2-ra.f-remote.cwru.edu no longer exists