Re: Not copyrighting facts (RE: copyrighting FACTS???)

[Samuel Trosow <strosow@uwo.ca>]

Call it copyright-like.  Call it misappropriation, call it what you like.
But you have to look at the specific language of what the legislation
actually says and get beyond labels. In the case of H.R.  3261, you have a
measure that is carefully dressed up to sound like a misappropriations
measure.  But when you peel away the language of the operative sections,
it essentially does just what you say it does not do: create
copyright-type restrictions on the use of elements of databases that are
not currently covered by copyright. This particular measure is framed in
terms of the "making available in commerce right"  instead of the
"extraction and reutilization rights" used in the EU Directive and earlier
US bills. But the end result is the same because in this bill, the making
available right is drafted in such broad terms.  The bill as drafted
reaches the conduct of end-users, not just potential competitors.  The
making available right is drafted in such a broad manner that it will
operate just like an extraction/reutilization right. As much as the
proponents would like to characterize HR 3261 as a carefully crafted
misappropriations measure that does not create proprietary rights, the
text of the bill undermines this contention.  While proponents claim the
bill adopts the Motorola standard, a careful comparison of the elements of
the Motorola case with the text of the bill shows that liability is much,
much broader. Add a section that says liability is limited to direct
competitors if you want to claim compliance with the Motorola standard.

The database industry should come back with a bill that only exposes
actual commercial competitors to liability and then your assertion will be
correct. H.R. 1858 in the 106th Congress was such a true misappropriations
measure that did not create copyright-type restrictions or expose end
users to liability.  But the database industry wanted no part of it.  
They wanted something much stronger.  And HR 3261 is such a bill that is
so much stronger that it does cross the line into proprietary
copyright-type restrictions. The intent of the bill is exactly to subject
end-users to potential liability, having then to rely on vague standards
and general defenses that are so much too open-ended to be of any
practical guidance.

You continue to make the assertion that no harm will be done by the
measure.  In particular, you continue to dwell on the assertion that you
are not precluded from independently aggregating the same facts. But we've
had this discussion before -- a few weeks ago when you made the exact same
assertion.  At that time, I asked you to explain how the so-called right
to independantly aggregate helps anyone in the case of sole source data
(much of which is collected at government expense).  You never responded
to that question. The problem of sole source data was one of the major
problems with previous measures and it is still a major problem with this
one. As well, this bill would cover datasets created through
federally-funded research.  How is that appropriate?

Regardless of all of the attempts to sterilize this bill and make it seem
like something it is really not, it continues to pose a grave danger to
the process of scientific research, it continues to enroach on well
understood regions of the public domain, and it continues to threaten
users with unreasonable risks of liability.

Samuel Trosow
Assistant Professor
University of Western Ontario
Faculty of Law / Faculty of Information & Media Studies

Joseph J. Esposito wrote:

> The bill does not grant copyright status to facts in the database.  That
> is simply wrong.  The bill says you can't copy a database someone else put
> together, but nothing stops anyone from independently aggregating the same
> facts.