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.)

We need to let everyone know what FUD this is

[ravenspear]

Send a free fax to your Congressmen and Senators here [tpc.int].

passed out of commerce committee

[dcgaber]

It was reported out of the Commerce Committee today. 2 versions, one that codifies the HotNews case, and is very mild based on common law precedent (and pretty much how the courts currently interpret these issues), and the more onerous one which was reported unfavorably. So it looks like it may be stalled and not reach the floor.

This is a good thing!

Editors who don't read articles...

[aardvarkjoe]

This doesn't allow you to copyright facts. It even says so in the linked slashdot blurb. It bears some similarities to copyright, but it's a completely different class of law.

The last thing we need is for slashdot to misinform everyone on something that fundamental about the bill.

Re:Ahem. Almanacs.

[prgrmr]

What's copyrightable in an almanac is the presenation and exposition of the facts, not the facts themselves. It's the same principle under which photographs of works in the public domain are copyrightable. There's a section in the copyright statues about it.

Re:Absolutely ridiculous

[cpt kangarooski]

First, the original intent of copyright has nothing to do with allowing creators to realize the fruits of their labor. If _labor_ were important, than we'd already have database copyrights since they operate entirely on a 'sweat of the brow' argument.

No, the intent of copyright is to promote the public good, specifically the dual public interests of seeing that more original and derivative works are created, and that more works are in the public domain.

Second, you're wrong about phone books. If a database isn't copyrighted you can indeed republish it exactly as-is.

Facts are uncopyrightable. Compilations of facts _may_ be copyrightable, but only if they are themselves original, and even then it doesn't protect the contents. A typical phone book is not original -- the selection is all-encompassing within a given area, so that's not protected, it lists unoriginal information such as name, number, address, so that's protected, and it arranges it alphabetically by last name, and that's not original nor protected.

This is a ridiculous law, but you don't seem to know much about our extant ridiculous laws.

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 [findlaw.com] (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.

This bill is not bad, and not about copyright

[Tikiman]

Before getting all pissed off, Take a look [loc.gov] at the bill. Among other things, it explictly makes allowances for educational and scientific purposes, as well as for news and sports. This isn't about "owning facts", it's about protecting the interests of those who take the time to compile a database and preventing others from obtaining that database and sellling it for themselves. You can sit at an NBA game and edit your web pages in real time, if you want. You can't slurp Yahoo's NBA page, reformat the text, and place it on your own page for profit. This seems perfectly reasonable to me.

Re:Absolutely ridiculous

[haystor]

I believe the point of this act is to prevent people from using other people's databases to gather facts.

You're perfectly welcome to have a database of phone numbers, you just can't make your list from the phone book.

Right now there is a certain disincentive to research data when it could just be collected from a competitor because it is "fact".

It might have interesting effects on sports scores though, which you won't be able to repeat unless you had some way of independently confirming the results.

The actual case.

[GoofyBoy]

Good grief, you are correct;

http://caselaw.lp.findlaw.com/scripts/getcase.pl?n avby=search&case=/data2/circs/5th/9940632cv0.h tml [findlaw.com]

Insane.

Re:Laws are copyrighted.

[mullein]

Some laws are copyrighted, and you need to pay hundreds of dollars just to get a copy of that law.

No, Im not kidding.

There _was_ someone who tried to fight this by posting the laws online, but I am unsure what happened.

I'm pretty sure you're talking about building codes being copyrighted even after enacted into law. Some links regarding this:

construction works article [constructionweblinks.com]

slashdot article [slashdot.org]

A search on the Supreme Court's site seems to have the latest activity on June 27, 2003:

02-355 SOUTHERN BUILDING CODE V. VEECK, PETER The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is denied.

As far as I can tell, this means that they declined to hear the case, leaving the ruling of the lower court (5th Circuit Court of Appeals) stand, which was to rule in favor of Peter Veeck for posting the building code online.

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.

Re:Laws are copyrighted.

[M. Silver]

Some laws are copyrighted, and you need to pay hundreds of dollars just to get a copy of that law.

Not quite.

The laws themselves aren't copyrighted, but they may say things like "we incorporate National Electric Code 99 by reference." NEC 99 is copyrighted, and that's what you have to pay to get a copy of.

The effect is the same, of course, but it's not as if a government can run around copyrighting laws willy-nilly and then busting you for violating them. If you're an electrician, you pretty much had to have access to a copy of NEC 99 to get certified in the first place, so it's not really a hugely onerous requirement.

Fight This!

[GeorgeH]

The EFF provides an easy way to tell your representatives what you think on this. Just go to action.eff.org [eff.org] and it will let you send comments to the government. Be sure to put your personal thoughts in the comments because they give more weight to non-form letters.

Re:"Originality, not effort"

[Aneurysm9]

That case is FEIST PUBLICATIONS, INC. v. RURAL TEL. SERVICE CO., 499 U.S. 340 (1991) [findlaw.com].

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.

Re:Absolutely ridiculous

[tehdaemon]

Actually I would say 'don't confuse capitalism with corporatism' This law isn't about protectionism in the classic sense, (it says nothing about trade as far as I know) but it is all about corporations wanting to make more money for less work.

Side note, would the berne convention require other countries to honor this copyright??

Not quite

[p0ppe]

" All trademarks and copyrights on this page are owned by their respective owners. Comments are owned by the Poster. The Rest (C) 1997-2004 OSDN."

Re:Hmms...

[AllUsernamesAreGone]

I think there's a real chance of it being declared unconstitutional,....

Eldred V Ashcroft will tell you all you need to know about how limited those limited times are, ie: they aren't.

Re:Nobody can own a fact.

[EvanED]

I hate to spoil the party by not only actually reading the article, but the raw legislation, but you're wrong about this part:

"If somebody else collected the scores for the same time period, their database would violate your copyright, even though they did the same work."

See Sec.4, paragraph (a) at http://thomas.loc.gov/cgi-bin/query/F?c108:1:./tem p/~c108Clq22s:e10301:

"(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."

Not that I'm saying this law is a good idea--it isn't--but this is not one of the reasons.

You don't own facts

[jfengel]

According to 4(a), you don't really own the facts in the database. What you own is the database itself. If I can gather the same facts some other way, I'm entitled to that. I'm only forbidden from accessing your database and using it myself.

"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."

That seems fair to me, actually. The goal overall of this bill is to say that if you put forth effort to gather a bunch of data, the effort of gathering it is worth money. The information is free, but the actual gathering of it is an artifact.

It makes a database like a book. Even if you eliminated copyrights, it would still be illegal for you to steal an actual book from me. Obviously the usual arguments that a database is not an artifact apply. I'm not going to argue them here; I'm just pointing out what the bill says.

Re:Absolutely ridiculous

[Aneurysm9]

Rural tried that argument in the Feist case. They had inserted a number of phony entries in order to detect wholesale copying, at least four of which appeared in Feist's publication. The problem with that approach is that courts don't look to individual creative elements, but to the originality of the work as a whole.

Re:Not quite

[Lemmeoutada Collecti]

Ah, but while the individual comments are copyright the poster, you must set aside literal geekthink and look from a lawyer's perspective. The individual facts (comments) are owned by the posters, the database comprised of the facts (Slashdot) is copyright OSDN. Thus, the poster may reuse a comment elsewhere, but to reference more than one comprises a copyright violation on the database.

I feel dirty now... I so despise copyright law...

You're overreacting, facts not being owned

[geekee]

"(Think phone-number databases) and goes directly against the idea that nobody can own a fact." This is not a law that allows someone to have exclusive ownership of a fact. It simply means that you can't steal someone elses database and sell it as your own. Therefore, two competing companies can each have phone books with the same data in them. However, I can't take company A's phone book, copy the white pages, and then start my own company selling with a new yellow pages that ive accumulated for revenue. It takes work to create a specific set of data, and no one should be able to just copy that exact database without your permission. If they independently arrive at the same database, however, that is ok, and the law in question does not consider this wrong.

Re:No more libraries

[shystershep]

Ah, I see. But the facts themselves are not copyrighted, nor can they be. This act just allows databases/collections of facts to be copyrighted. Using a phone book as an example, the phone company may now be able to copyright that collection of facts (which goes contrary to established copyright law), but it does not own a copyright on the actual data inside the book -- i.e., you're not infringing the copyright by using/copying names and numbers out of the book. If you, say, photocopied the yellow pages and sold them, you would be. The tricky thing is where the dividing line is, but regardless I think indexes, journals, bibliographies, etc. would not be infringing anyone's copyright.

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

[SoCalChris]

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.

Ok, now if you take your collection of notes, and randomize the order they're in, you have something totally different. Now, take your database, and randomize the records in that. You still have the same exact database. They are two totally different ideas.

Expresson of Facts Can Be Copyrighted

[reallocate]

>> ...goes directly against the idea that nobody can own a fact.

If you are going to argue against copyright, at least use your head.

A "fact", e.g., "4 +4 = 8" cannot be copyrighted. The symbolic representation of that fact, can be. "4 + 4 = 8" is one symbolic representation of a fact. "IV + IV = IIX" is another. Same fact, different symbols.

Facts aren't symbols. Awareness of facts can only be transmitted by symbolic expression. Those expressions are works of language and, hence, can be owned and protected, i.e., copyrighted.

(Utopian dreamers who want to rant about the wonderful ineffable nature of knowledge and its "unownability", please go away. Copyright isn't about knowledge.)

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

[rbeagle]

You can't copyright red...

No, but you can trademark it. It is legally acceptable to own a trademark on a color. I discovered this when I was looking at an issue of Inside UPS (a magazine for UPS employees) and noticed on the back that it said to the effect, "UPS, the package logo, the shield logo, and the color brown are all trademarks of United Parcel Service, Inc." This was quite a shock to me, so I ran to Google and found that the Supreme Court allows color to be registered as a trademark [gibney.com]. A color can't be part of the function of a product in order to be trademarked, however. So we're safe from someone suing stainless steel manufacturers because they own a trademark on the color silver.

Re:The actual case.

[Lando]

Ahhh, found the actual judgement from the 5th court you will notice that they found for Veeck not the sbbci.

Actual 5th court decision [uscourts.gov]

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

[Meridun]

Copying what I wrote from the last time, I'm continually amused at the people who are disagreeing with you. Basically, all this bill is proposing to do is punish BLATANT direct copies of a database or large portion thereof. Note the following exceptions to the law, from the last time I looked at it:

SEC. 4. PERMITTED ACTS.

(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.

(b) 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.

(c) HYPERLINKING- Nothing in this Act shall restrict the act of hyperlinking of one online location to another or the providing of a reference or pointer (including such reference or pointer in a directory or index) to a database.

(d) NEWS REPORTING- Nothing in this Act shall restrict any person from making available in commerce information for the primary purpose of news reporting, including news and sports gathering, dissemination, and comment, unless the information is time sensitive and has been gathered by a news reporting entity, and making available in commerce the information is part of a consistent pattern engaged in for the purpose of direct competition.

I won't annoy all of you by requote the whole text of the bill (which I highly recommend you read before flaming). However, from my reading of it, all it seems to prohibit is for someone to make available significant amounts of a commercial database for their own profit. Basically, you can't spider Lexis-Nexis or the like and sell the info, but you CAN independently collect that data from direct sources and compete with them.

If I'm missing something here, PLEASE tell me. Again, read the bill first though, before you spew fire.

I just wrote to my congresswoman

[fname]

I just wrote to my congresswoman [house.gov]. I encourage the others here to do the same. Here's what I wrote.

Please oppose HR3261. This bill will have the sad effect of making facts private information. This bill makes it very easy for sports leagues to sue those who provide statistics from the game, would allow race organizers to prevent 3rd parties from listing a collection of winning times, and may even prevent publication of stock quotes. This law will have a chilling effect on free speech, and will encourage frivolous lawsuits against those entities which do such a wonderful job of providing information, including internet search engines and public libraries. This law wil not help consumers, and will make it more costly for citzens to access factual information. Please oppose this bill.

Please post here any the comments you sent to your elected representative.

Congressional Update on this Bill!

[Igby]

Today the Commerce committee voted to support its own version of the bill that is very different than the Judiciary version. The Commerce bill is sponsored by Congressman Stearns and only protects databases in certain circumstances and doesn't allow companies to sure each other. They would have to go through the FTC. The Commerce Committe flatly rejected the Judiciary Bill. Commerce Chairman Barton supports the Stearn bill. According to published reports, Congressman Stearns also believes the Judiciary Bill will "chill the use of information". Co-sponsor Schakowsky also dislikes the Judiciary Bill because it would "turn facts into property." While its not final yet, this was a big victory in this battle.

Re:Easiest way out...

[KD5YPT]

Google actually didn't download the entire internet, they merely index them for searches (other than those special Google cache... which isn't the internet). What would pique my interest is the Wayback machine, now they can officially own all the internet...

Re:Absolutely ridiculous

[1ucius]

They are not trying to make db's copyrightable. They are trying to create a new form of IP to protect the sweat of the brow necessary to create a database. The headline and Wired article are misleading