Do You Have A License For Those Facts?

spikedvodka writes "Wired is reporting that the "Database and Collections of Information Misappropriation Act (HR3261)" is under consideration. It passed the house Judiciary Committee, and is on it's way to the Commerce Committee. This bill would allow companies to copyright databases. (Think phone-number databases) and goes directly against the idea that nobody can own a fact." (See this earlier posting.)

Comments

Easiest way out...

[ajiva]

So all I have to do is "Download the Internet" as Comcast's ads claim, then I can OWN the internet! Woohoo, where's my multi-terebyte disk array!

Re:Easiest way out...

[Lumpy]

actually yes, you do have an wasy way out and it's almost as simple as you make it.

make a company, create a database of your personal/family information and copyright it. basically download YOURSELF and your family to a database... therfore forcing the phone company, cable company, etc... to license your data from you.

if enough people do this, either the law will get overturned when it becomes a reality, or it will create a gigantic pain in the arse for all corperations.

I.E. my home address and name is your property and for comcast to bill you they MUST have a license to your data and therefore pay a monthly use fee.

you MUST use their own laws against them... I.E. the only way to win is to play by their rules.

More info..

[Anonymous Coward]

at LISNews (kind of the /. for librarians...)

Careful...

[eurleif]

Does /. have the legal right to talk about this bill? I mean, that fact might be copyrighted!

Re:Careful...

[Stregone]

I wonder if that means we can sue someone who posts a repeat story on /.

Hmms...

[andreMA]

If I'm called to testify under oath in a court, can I refuse to answer any question I wish because I can't know if the facts as I relate them might be some 3rd party's IP?

Can I demand an immunity deal as a condition of testifying at all?

Re:Hmms...

[shystershep]

The point that everyone is missing, not helped at all by the article headline, is that this is about databases, not individual facts. Facts will still not be able to be copyrighted, just collections of them. Doesn't make the bill much better, but it's an important distinction.

I think there's a real chance of it being declared unconstitutional, because Congress's authority to issue patents and copyrights is "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." (US Const, Art. 1, s. 8, p. 8) That said, they'll probably just pass it as a law governing interstate commerce.

Re:Hmms...

[Fiz Ocelot]

I want the truth!

You can't handle the licencing fees for the truth!

Absolutely ridiculous

[neilcSD]

Corporations will squeeze every last damn cent they can out of anyone. When will the government stop this capitalism run amok? I'm all for corporations making profits, and the government helping protect this, but what is happening is that the small guy (consumers and small businesses who don't have millions of dollars to blow on lawsuits) gets hurt.

Re:Absolutely ridiculous

[Aneurysm9]

No, actually, under current law you are entirely within your right (absent additional contractual obligations) to copy verbatim an existing database. The "sweat of the brow" doctrine to which you seem to refer was flatly rejected by the Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991). Phone books and other collections of facts are not copyrightable because "originality is a constitutional requirement" and collections of fact do not possess the requisite originality. Certain presentations of collections of facts may be eligible for copyright protection, but the underlying facts are still in the public domain.

As for database overlap, that wouldn't be a problem if this law were implemented. Separate creations of the same set of facts are still separate.

Prior law might defeat this in court

[NinjaPablo]

A 1997 case between Motorola and the National Basketball Association could serve as an example. After Motorola sent basketball scores to its customers' pagers, the NBA sued the company for misappropriating its property. A U.S. Appeals Court, however, ruled against the NBA.

This seems like mostly the same thing. If this thing does get passed, it will probably be overturned quickly by a court.

Re:Prior law might defeat this in court

[Anonymous Coward]

It's never safe to assume the courts will do the right thing.

Re:Prior law might defeat this in court

[afidel]

Actually the most relevant case is Feist vs Rural Telecom. There the supremes used two branches of logic to overturn the lower courts rulings that the white and yellow pages of Rural were protected by copyright:

"Article I, 8, cl. 8, of the Constitution mandates originality as a prerequisite for copyright protection. The constitutional requirement necessitates independent creation plus a modicum of creativity. Since facts do not owe their origin to an act of authorship, they are not original, and thus are not copyrightable. Although a compilation of facts may possess the requisite originality because the author typically chooses which facts to include, in what order to place them, and how to arrange the data so that readers may use them effectively, copyright protection extends only to those components of the work that are original to the author, not to the facts themselves. This fact/expression dichotomy severely limits the scope of protection in fact-based works. Pp. 344-351

And

The Copyright Act of 1976 and its predecessor, the Copyright Act of 1909, leave no doubt that originality is the touchstone of copyright protection in directories and other fact-based works. The 1976 Act explains that copyright extends to "original works of authorship," 17 U.S.C. 102(a), and that there can be no copyright in facts, 102(b). [499 U.S. 340, 341] A compilation is not copyrightable per se, but is copyrightable only if its facts have been "selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship." 101 (emphasis added). Thus, the statute envisions that some ways of selecting, coordinating, and arranging data are not sufficiently original to trigger copyright protection. Even a compilation that is copyrightable receives only limited protection, for the copyright does not extend to facts contained in the compilation. 103(b). Lower courts that adopted a "sweat of the brow" or "industrious collection" test - which extended a compilation's copyright protection beyond selection and arrangement to the facts themselves - misconstrued the 1909 Act and eschewed the fundamental axiom of copyright law that no one may copyright facts or ideas. Pp. 351-361.

The first point (and to me the more important one since it is based on constitutional law) still stands. However the second one is basically eliminated since Congress is amending the copyright law to include sets of facts.

Nobody can own a fact.

[mindstrm]

True enough.

Now. Let's consider the database as a whole.

Do you feel that any database you take the time to put together should have no protection whatseover? As a whole, I mean..

We can probably agree that wholesale copying of my database should not be allowed... even if the individual facts are not copyrightable.

The question becomes, where do we draw the line? Should the DB owner get no protection?

time for the new "open facts" movement

[surreal-maitland]

from the permitted acts section: (a) INDEPENDENTLY GENERATED OR GATHERED INFORMATION- This Act shall not restrict any person from independently generating or gathering information obtained by means other than extracting it from a database generated, gathered, or maintained by another person and making that information available in commerce. so fear not, you'll still be able to get that cute girl's phone number once you learn her name.

Phone Books

[TruffleGuy]

Isn't a phone book a kind of data base?

He also says that despite Kupferschmid's characterization, the bill puts no limit on the amount of information someone needs to take from a database to violate the law.

So if I write down a phone number out of a phone book would I be thrown in a pound me in the ass prison

my 2x10^-2 dollars

[Valar]

It seems to be like this is more about copyrighting collections of facts than the facts themselves. For example, if it is a trivial collection of facts (for example, the collection of information "My name is Foo"), I don't believe it is coverable. Thusly, the companies couldn't copyright a pairing between you and your phone number and then sue you for giving your number out. Similarly, a maker of encyclopedias couldn't copyright the fact "The marmot is a mammal." and then sue other people/companies who also make the claim that marmots are mammals.

In the case of encyclopedias, the collection of information would already be covered by copyright (it is a written work). However, legally, the idea of databases as copyrightable material is a little shakey. Is it a work of art? A written work? It falls under that hard to define region of 'other' works of authorship. The law aims to clarify this.

Oh, and make the overlords happy.

Unintended Consequences

[sssmashy]

"The law of unintended consequences in this case has the potential to be huge," Brodsky said.

Actually, I think the law of unintended consequences has been licensed and copyrighted to the Elect Ralph Nader Committee for quite some time now.

Advancement of what?

[Speare]

Section. 8.
Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

How does this advance Arts or Science? It's a real stretch to say that a list of customer data is a Writing or a Discovery.

mmmmmm genomics

[wheatking]

... the interesting question is that could this be used by various bio-tech companies to start claiming genomes (of rats or rice or humans) as similar protected 'collected' data. if so, there is an interesting debate to be had there for 'open source' sequencing (mySequence!) and how to make the results available for research. same goes for proteomics and gene expression research. arguably, they are just uncovering 'facts' and the groups they occur in...

The real point

[rwiedower]

Actually, the fact that everyone is missing has nothing to do with the article in question, because the article in question misses the key point: the only news item from today that is noteworthy is that an alternative bill is being put forward in the House Energy and Commerce Committee that will specifically alter the sections the House Judiciary Committee proposed.

The Wired story is out of date. I'd link to the article in CQ today, but it's restricted. HR3261 will hopefully be beaten by the energy and commerce version, which will bring the database protection under the scope of the FTC, rather than under an individual corporation's scope.

Just because Wired says it doesn't make it true!

[dasmegabyte]

This is actually kind of a dumb, extremist reaction to a very useful idea.

First of all, it's not FACTS that are being copyrighted. It's databases. Yes, a database is a collection of facts -- but it's the concept of collection that's being protected here, not the concept of facts.

Think about it this way: you can copyright a guitar riff, but you obviously can't copyright a note. A note is a basic, concrete thing, you can't CREATE a new note. Does this fact bely the creation of original songs? I don't think so...every time music seems stagnant, somebody finds a new way to make it.

In the same way, you can't copyright a word, but you can copyright a book. You can't copyright red, but you can use it in your painting.

The creative act of assembling a database -- and if you don't think it's creative, you've never done it, it takes a TREMENDOUS effort to assemble and maintain a useful data relation even if you're using publically accessible information -- is something that should be protected. It gives data warehousers the same assurance that other content creators receive, so that they can offer access to their systems without worrying about losing the value...something which in my experience has plagued content creators greatly.

In fact, I see no reason why databases can't be fairly used same as any other created work. For example: let's say I run a sports website. If I wrote an editorial, and you wanted to quote a few lines on your own site, you'd be allowed to. But copy all the text and you're in violation of copyright. It'd be the same with databases. Want to quote a sport score or two? No problem, that's fair. Want to present all of yesterday's results? You'd better ask permission or start compiling them yourself. I don't have a problem with this.

Re:Just because Wired says it doesn't make it true

[rot26]

In fact, I see no reason why databases can't be fairly used same as any other created work

You can't??? How about the fact that practically all other creative work is STATIC, and most databases are DYNAMIC??? See the problem now? It's relatively easy to define a copied work of a static object, but how do you define a copy of a dynamic object? It would be a nightmare. This is a serious problem.

Re:More [biased] info...

[Mablung]

While the links at the site mentioned are all biased against this legislation, and many of those links provide only knee-jerk, "the sky is falling", "keep your hands off my facts" reactions (e.g. Phyllis Schlafly's) so typical to slashdot responses found here, there is at least one lucid presentation of the situation. Anyone really interested in this topic should at least read William A. Wulf's testimony. He summarizes the problem well. Here's my summary of the problem (not the testimony).

1. NOBODY is trying to COPYRIGHT ANYTHING! NOBODY is trying to OWN FACTS! (Please repeat this to yourself three times before continuing to read anything anywhere)
2. Big database companies (like West) are worried that other companies can slurp up large parts of their data and turn around and sell it. Everyone agrees this is unfair and shouldn't be allowed.
3. Big companies now KNOW that COPYRIGHT DOES NOT PROTECT THEM from situation 2 above because of Feist. (Google it with copyright).
4. Big companies want some law to point to when situation 2 actually happens.

The real problem(s):

a. Situation 2 may not be a real problem. No one has shown that this is actually happening.
b. Big companies (like West) like to sue honest competitors to gain any advantage they can. That's their job. (Google West and Lexis)
c. The new legislation may be addressing a non-problem while facilitating expensive, unnecessary lawsuits designed to harass competition.
d. (The big one for me) The new legislation may chill the activities of companies like Google who might inadvertently become liable.


Hey man, can I bum a sig?