January 29, 2004
It's Mine Mine Mine, All Mine, Every Little Factoid in My Database! Mine!

Updated post:

Recommended: The Coming of the Anti-Feist, Part II (Donna Wentworth @ Copyfight).

Congress is talking about locking down data in databases. Feist was this case where the Supreme Court ruled that facts (like the temperature, the score of the local hockey team, the number of voters in a state) are not copyrightable, only special arrangements of those facts in databases, collectively are, and then it's the arrangement, not the facts themselves that are copyrighted.

Well, now Congress wants to change all that, allowing the first to arrange something to get control of it completely, including all factiods. Think scientific data, publicly funded research, etc. Bad policy idea all around. Do you really want scientific data tied up like that? Facts that should enter the public domain to be built on for further research? Not to mention the scores of the hockey team? There is no reason for this, and in fact many major companies oppose it, but the copyright cartel is strong, and their interests very short term (lock every thing down, make money now, screw innovation and future development, cause we're makin' quick bucks!)

Check it out. And make your thoughts heard with your legislators. We can't afford this legislation.

Original Post: Recommended: The Coming of the Anti-Feist, Part II (Donna Wentworth @ Copyfight).

Congress is talking about locking down data in databases, using copyright to do it. Feist was this case where the Supreme Court ruled that facts (like the temperature, the score of the local hockey team, the number of voters in a state) are not copyrightable, only special arrangements of those facts in databases, collectively are, and then it's the arrangement, not the facts themselves that are copyrighted.

Well, now Congress wants to change all that, allowing the first to arrange something to get control of it completely, including all factiods. Think scientific data, publicly funded research, etc. Bad policy idea all around. And remember, copyright is 70 years past death, or 95 years for works owned by an entity like a company. Do you really want scientific data tied up like that? Facts that should enter the public domain to be built on for further research? Not to mention the scores of the hockey team? There is no reason for this, and in fact many major companies oppose it, but the copyright cartel is strong, and their interests very short term (lock every thing down, make money now, screw innovation and future development, cause we're makin' quick bucks!)

Check it out. And make your thoughts heard with your legislators. We can't afford this legislation.

Posted by Mary Hodder at January 29, 2004 08:16 AM
Comments

The number of misstatements, material omissions, and utter falsehoods packed into this one post is staggering. I don't have all day to correct every error, but I'll take on a few of the main ones:

1) "Well, now Congress wants to change all that, allowing the first to arrange something to get control of it completely, including all factiods." "All that" in your post is Feist. This bill would not change Feist one iota. Feist had to do with copyrightability, and, if this bill becomes law, facts would remain uncopyrightable. This bill explicitly is NOT about copyright. See section 6(a)(1) ("Subject to subsection (b), nothing in this Act shall affect rights, limitations, or remedies concerning copyright, patent, trademark, design rights, antitrust, trade secrets, privacy, access to public documents, and misuse.").

Moreover, it's simply untrue to say that the bill would allow anyone to "get control of it [facts] completely." If you had actually read the bill, you would note that sections 2(5)(B) and 5 ("Exclusions") contain limits on the bill's scope -- which negates your "completely" contention.

2) You state that the bill would cover "publicly funded research." It's difficult to imagine that you could have read the bill and still made this statement. Section 5(a)(1)(A) EXCLUDES from the bill's scope "a database generated, gathered, organized, or maintained by a Federal, State, or local governmental entity, or by an employee or agent of such an entity, acting within the scope of such employment or agency." I suppose *some* "publicly-funded research" could still fall within the bill's ambit, but that's nothing new. For example, my understanding is that if a researcher in a Harvard chemistry lab that receives federal grant money obtains a patent, then that patent belongs to Harvard -- not the government.

3) "And remember, copyright is 70 years past death, or 95 years for works owned by an entity like a company. Do you really want scientific data tied up like that?" Huh? Again, this is NOT a copyright bill. Copyright terms have *nothing* to do with this bill. In fact the text of the bill very clearly states that, in order for the bill to apply, "the unauthorized making available in commerce occurs in a time sensitive manner and inflicts injury on the database or a product or service offering access to multiple databases." See sec. 3(a)(2).

4) You completely fail to acknowledge that not every database automatically receives protection. There are fairly stringent requirements, which, it seems, will be very difficult to actually prove in court. Liability *only* attaches *if*:

1) the database was generated, gathered, or maintained through a substantial expenditure of financial resources or time;

(2) the unauthorized making available in commerce occurs in a time sensitive manner and inflicts injury on the database or a product or service offering access to multiple databases; and

(3) the ability of other parties to free ride on the efforts of the plaintiff would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.


I would urge your readers to read the actual text of the bill rather than relying on unimformed, third-hand misinformation passed along by the usual anti-IP web sites. Here's a link to the actual text:

http://thomas.loc.gov/cgi-bin/query/F?c108:1:./temp/~c108nrbNDW:e744:

There are entirely legitimate reasons to oppose this bill. But you won't find them in Ms. Hodder's post.

Posted by: Paul on January 29, 2004 11:54 AM

I should also have mentioned one more provision of the bill, section 4(b), which refutes Ms. Hodder's claim about the bill allegedly harming "further research":


ACTS OF MAKING AVAILABLE IN COMMERCE BY NONPROFIT EDUCATIONAL, SCIENTIFIC, OR RESEARCH INSTITUTIONS- The making available in commerce of a substantial part of a database by a nonprofit educational, scientific, and research institution, including an employee or agent of such institution acting within the scope of such employment or agency, for nonprofit educational, scientific, and research purposes shall not be prohibited by section 3 if the court determines that the making available in commerce of the information in the database is reasonable under the circumstances, taking into consideration the customary practices associated with such uses of such database by nonprofit educational, scientific, or research institutions and other factors that the court determines relevant.

Posted by: Paul on January 29, 2004 12:07 PM

Have any of the presidential candidates made their views on IP issues public?

Posted by: Kevin Heller on January 29, 2004 09:38 PM

Paul (or whomever):
The link you provide for the bill doesn't go anywhere and the Thomas.loc.gov search for H.R. 3261 gives the same link, so people will have to go there directly, to search on HR 3261.

You are correct, the bill is proposing a whole new type of intellectual property, and is not referring to copyright; I misread the EFF post thinking this was a copyright measure, so when reading the bill, I was operating on that assumption. Stand corrected, this is not copyright, it's a whole new type of IP. But that's even more ridiculous that my original post suggested. How long does this new protection last? Forever? I can't find any time limit in the bill. That's even worse than 70 years past death or 95 years overall for works for hire.

Also, to correct your assumptions above: "it" is a database, not a single fact as you write. Congress does propose "allowing the first to arrange something to get control of it [databases] completely, including all factoids" put in there.

So okay, Feist says you can't copyright the facts, so I'm confused. This bill would allow the facts to remain uncopyrightable, but the database would be locked down, in some unnamed new type of IP that is really similar to copyright? How different is this from copyright? So you are arguing that they are not copyrighted which is true, but my objection is to locking down databases in a copyright-like manner, and frankly, the bill is proposing to do far more than what copyright would do. So technically it's not "copyright", but it's totally locked down, FOREVER as long as some owner can prove they fit under the subjective terms of this bill, like "time-sensitive". Do you really want scientific data tied up like that? (Oh, and comparing this to patents is sort of not a great comparison, as patents are for 17 years, and cover processes, and this new form of intellectual property will be for locking fact as assembled in a database, for an indefinite period, as I read the bill. And while patents are given to and then owned by publicly funded research institutions, it's for 17 years, and they don't prevent others from making their own process that does a similar thing or meets a similar goal, but a locked down database could be withheld from the scientific community forever under this new form of IP.)

Also, based on this section:

    Section 5 EXCLUSIONS, (2) EXCEPTION- Nothing in this section shall preclude protection under this Act for a database gathered, organized, or maintained by an employee or agent of an entity described in paragraph (1) that is acting outside the scope of such employment or agency, or by a Federal, State, or local educational institution, or its employees or agents, in the course of engaging in education, research, or scholarship.

If the section doesn't preclude protection in the exceptions, then that means that databases generated via "education, research, or scholarship" can be included in the bill's protections. In otherwords, publicly funded research can be locked down. As I said in the original post, this is a good reason for opposing this bill.

Also, the terms that would attach liability are subjective, open to opinion, and for researchers on a strict budget, I can imagine that they would simply not use data, facts that originate from *one source only*, rather than risk any interpretation that the data use might cause any of the three requirements you mention to be invoked. Researchers tend to work on a safe rather than sorry philosophy.

Also, you quote a section above that ends with what "the court determines relevant" in reference to scientific research that can be reused. This sound as if courts are needed to determine whether use of databases is reasonable, then there is a huge burden on others researching and relying on databases to go to court to ask for help. What a barrier. This does not sound simple, inexpensive or like it's promoting research at all. I don't see things in the rest of the bill that give an easier way for researchers to get access to other researchers work.

Lastly, you've been here before under various pseudonyms, and on other blogs doing the same: personally attacking and overstating your dislike for the writer and generally acting like a troll, with some good points thrown into the mix which appears to legitimize your behavior. This is a blog covering opinions of intellectual property, and I'm not responsible for a complete lawyerly review of the bill, point by point (in reference to your "omissions" assertion). I can comment that a bill is terrible, without Fisking it. So why don't you just say who you really are, what you are (a lawyer at a major firm), and why not do a blog yourself. What are you hiding? Why are you trying to fool us with different names? If you can't say who you are and what you are, just as other's here do so, then how seriously can we take you?

Posted by: mary hodder on January 30, 2004 12:27 PM

Mary,

I agree completely with your comments. The only thing I'd add is a challenge to the (as you call them) "copyright cartel" - explain what's wrong with existing copyright law with regard to compilations? As I understand that law, if the creator of the compilation creates new value, that new value (organization, translation, etc.) is fully protected. If the value that's added is protected, what's the problem?

Posted by: Terry Steichen on January 31, 2004 09:28 AM

Word. This is the beginnings of the dismantling of Feist for corporate interests... facts should be fair game. And if 3261 is anything like the EU database directive, we could have a perpetual copyright as Mary says... (in the EU your sui generis rights against copying can be renewed with a modest updating of the database... which you can do forever)

Posted by: joe on January 31, 2004 10:24 AM

Mr. Paul Anonymous,

For many (most) of us, weblogs are learning spaces. There is no need to go into attack mode. Why not correct errors and missteps politely? If the goal is for readers to get the facts straight, this should do the job.


Posted by: Donna Wentworth on January 31, 2004 10:29 AM

I'm with Donna. The refusal of "Paul" to say who he is undermines his credibility.

Posted by: JD Lasica on February 1, 2004 04:24 PM
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