Congress questions database protection proposal

Draft legislation that would strengthen some copyright-like protections on the contents of commercial databases Tuesday met with skepticism from members of two U.S. House subcommittees.

Draft legislation that would strengthen some copyright-like protections on the contents of commercial databases Tuesday met with skepticism from members of two U.S. House subcommittees, despite proponents saying creators of databases need more protection against competitors pilfering the information after all the hard work has been done.

The Database and Collections of Information Misappropriations Act, yet to be introduced in the House, would allow owners of commercial databases to sue anyone who sells portions of their databases, if those databases contain time-sensitive material and the owner incurred a "substantial" cost when generating or maintaining the material. But opponents of the draft bill, including the U.S. Chamber of Commerce, the American Civil Liberties Union (ACLU) and the Association of American Universities, questioned the need for a new law, with some saying existing copyright and other laws already protect most databases.

"We have the benefit of contract, intellectual property, copyright, state misappropriation, trespass and federal computer anti-hijacking statutes and numerous other protections that are on the books," testified Thomas Donohue, president and CEO of the U.S. Chamber of Commerce, during a congressional hearing. "This is a solution in search of a problem, and we ought to be very careful about that."

But others argued that current U.S. law, particularly copyright law, is weak in protecting the sometimes noncreative work that goes into gathering and maintaining a database. A new law is needed to protect the "immeasurable" value that exists in databases owned by U.S. companies against "free-riders" who would take that information, said Keith Kupferschmid, vice president of intellectual property policy and enforcement for the Software and Information Industry Association.

Although Donohue questioned if there was a groundswell of support for new database legislation, Kupferschmid listed at least four recent court cases where the owners of databases lost lawsuits to competitors using their information without permission. In one case, he said, a competitor copied close to three-quarters of a company's school information database and posted the information on the Internet, helping to drive the original database owner out of the database business.

"With the Internet and advances in new technology, databases can be easily stolen and made available to others," said Kupferschmid, testifying for the Coalition Against Database Piracy, a coalition of database producers. "Clearly there is a definite and significant need for database protection legislation."

The draft legislation could give database creators incentives to keep producing new products, added Representative Lamar Smith (R-Texas), chairman of the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property.

"In cyberspace, technological developments represent a threat as well as an opportunity for collections of information," Smith said. "Copying factual material from a third party's collection, and rearranging it to form a competing information product is cheaper and easier than ever."

Kupferschmid's written testimony listed about 80 companies and organizations that support "meaningful" database antipiracy legislation, including eBay, FreeAdvice.com, and Monster.com. But Donohue argued that his organization's 3 million members overwhelmingly didn't support database protection legislation, and the handful of court cases Kupferschmid listed did not show a widespread problem.

"This issue is so small compared to everything else," Donohue said. "I would not argue that you somewhere could find someone who was injured. We don't think this legislation is going to help, and what is going to do is define an opportunity for certain class-action or mass-action lawyers."

Donohue noted that the draft legislation allows for database owners to collect quadruple their damages in certain instances when their information is taken by a competitor. That would case a "litigation nightmare," Donohue said.

Other critics of the draft bill raised objections about the proposal's impact on free speech and freedom to share information. William Wulf, president of the National Academy of Engineering, said the draft legislation is an improvement over older database protection legislation, and it carves out an exemption to penalties when nonprofit groups share databases. But it could discourage the sharing of information in research projects involving both universities and for-profit corporations, he added.

"Once created, a new protection regime is almost impossible to dismantle," Wulf said while asking Congress to move slowly on the draft bill.

The ACLU said the legislation could prohibit the dissemination of facts simply because they are included in a commercial database, although the draft bill includes exemptions for journalists and for hyperlinking to databases.

The ACLU, along with Representatives Rick Boucher (D-Va.) and Janice Schakowsky (D-Ill.) also questioned a provision in the draft legislation that mirrors a much-debated subpoena process in the Digital Millennium Copyright Act (DMCA).

In the DMCA, copyright holders such as the recording industry are allowed to seek subpoenas of the names and addresses of suspected copyright violators from a court clerk and without oversight from a judge. The Recording Industry Association of America has filed thousands of such subpoenas against suspected music downloaders' ISPs in recent months, raising privacy questions in Congress. Critics of the DMCA subpoenas have said that without a judge's oversight, anyone from a stalker to a rapist could claim to be a copyright owner and find out personal information about another Internet user.

The draft database legislation would allow owners of databases to seek similar subpoenas for the identity of those suspected of copying someone else's database for commercial gain. "I'm not a lawyer, but what I've heard as a layman scares me to death," Wulf said of the subpoena process.

The subpoena process in both the DMCA and the draft legislation deprive suspected infringers of due process, Schakowsky said, but David Carson, general counsel of the U.S. Copyright Office, said U.S. law allows lawyers in civil lawsuits to subpoena witnesses without a judge's order.

"We think most of the complaints you've just described frankly have very little to them when you peek underneath the hood," Carson said of privacy concerns over the judge-less subpoenas.

Carson's comments prompted a testy exchange with Boucher, who questioned how, in the DMCA subpoena process, suspected infringers could ask a court to stop the release of their personal information. Boucher said passing database protection legislation when it's not needed would be "mischievous."

But Carson defended the DMCA subpoena process and said a narrowly focused database protection law could avoid the expansion of U.S. copyright law that critics of the DMCA fear. He called the draft bill, an attempt to iron out differences between the House Judiciary and Energy and Commerce committees, a "major step in the direction of balanced legislation."

Representative Howard Berman (D-Calif.) noted that some critics of the database draft bill point to existing copyright law as protection for database owners. Yet, he said, some of those same critics want to roll back existing copyright law, including the DMCA.

But Representative Cliff Stearns (R-Fla.), chairman of the House Energy and Commerce Committee's Subcommittee on Commerce, Trade and Consumer Protection, questioned if database protection legislation would discourage the development of new databases and create a property right for factual information.

Stearns said he wouldn't comment on the draft bill "until I can be certain that this draft strikes the appropriate balance between access to information, innovations and protection against misappropriation.

"It is plausible that such a balance may be unattainable," he added.

This story, "Congress questions database protection proposal" was originally published by IDG News Service .

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