New legislation pending in Congress could have a significant impact on students, educators, and other internet users who reproduce factual information taken from subscription-based databases such as LexisNexis, a popular online archive used in schools.
Known as the Database and Collections of Information Misappropriation Act (H.R. 3261), the bill would make it a crime for anyone to copy or redistribute large portions of factual databases, such as those containing online legal records, stock quotes, school data, or sports scores, among other widely circulated nuggets of information.
Although the bill’s supporters say the legislation is long overdue and that it targets only those who aim to cause financial harm to corporations by essentially “stealing” large amounts of pre-sorted data, its critics contend the law would give content providers ownership of facts, thus placing news and other public knowledge under corporate lock and key.
The law–which holds civilly liable any person who copies or reproduces large chunks of a database from another source at substantial harm to the original provider–initially drew the ire of educational organizations, including the Association of American Universities, the National Association of State Universities and Land-Grant Colleges, the American Council on Education, the National Academies, and the American Association for the Advancement of Science, all of which favored database protection legislation of some kind but called for more specific exemptions for educational and research institutions in particular.
As a result, lawmakers amended the bill in January to ease those concerns, exempting students and employees of accredited colleges and universities and nonprofit research laboratories. But the amended bill makes no mention of K-12 schools or libraries specifically.
Though it’s unlikely that companies would be able to seek damages from K-12 students or teachers who use such information in the context of school projects, critics contend the bill could have a number of “unintended consequences.”
Art Brodsky, a spokesman for the advocacy group Public Knowledge, says the bill essentially would give companies the right to “lock up facts,” thus making public information available only to those who could afford it.
Brodsky, who called the bill “totally unnecessary,” said current copyright and contract law already does its part to protect such collections of data. Facts, he said, which fall outside the legal scope of intellectual property and copyright legislation, are public information and therefore should be freely available in all media.
“There are just certain things people should be able to look up without [charge],” Brodsky said. “We shouldn’t be limiting access to what everyone would agree is fact.”
The American Library Association (ALA) echoes Brodsky’s concerns. Miriam Nisbet, the group’s legal counsel, called the bill “a good example of a bad piece of database legislation.”
Nisbet, who said the ALA is opposed to any form of database protection legislation, said H.R. 3261 is broadly defined and does not provide a clear-cut line regarding how much information a consumer is allowed to extract from a database before he or she can be held liable.
“Giving property rights to facts is fundamentally at odds with the way knowledge and the dissemination of knowledge works in this country,” she said. “Facts are the building blocks of knowledge.”
Supporting the bill’s passage are such organizations as the Software Information Industry of America (SIIA); Reed Elsevier, which owns LexisNexis; and a myriad of corporations that have banded together to create the Coalition Against Database Piracy (CADP), an alliance of small and large U.S. database producers in favor of federal database protection legislation.
Keith Kupferschmid, SIIA’s vice president of intellectual property and enforcement, says commercial database providers devote millions of dollars, time, and company resources to compiling information and organizing it into a format their customers will find useful and are willing to pay good money for.
But, he says, those efforts are in vain whenever a person copies an entire database or a significant portion of a database and reproduces it elsewhere–on the internet, for example–where the rest of the world can access the work for free.
If a company is unable to make back the money it invests in creating the original database because of intellectual property theft, proponents of the legislation say, the services themselves will become extinct. Without a steady source of income from paying customers, they say, content providers will not have the resources to sustain these databases over long periods of time.
Just ask the publishers of Schoolhouse magazine. To help current residents and potential new residents find out more about their local schools, editors at Schoolhouse–which distributes an annual guide to Minnesota schools–compiled a comprehensive electronic database featuring statistics on everything from test scores to teacher ratings and school services.
When a local real estate company copied more than 80 percent of the online database and distributed it to potential customers free of charge, Schoolhouse sued the realtors. Schoolhouse eventually lost the fight because, Kupferschmid said, no law existed prohibiting someone from taking the data and publishing them elsewhere.
“Make no bones about it, [the real estate firm] stole that information,” he alleged. “The goal is that we want these databases to survive.”
Kupferschmid said opponents of the legislation have overestimated the impact the law will have on facts in the public domain.
Students, for instance, still would be allowed to extract portions of databases for use in research papers, so long as the information was intended for educational purposes. The same goes for teachers and university-sanctioned researchers. The key, he said, is the bill’s “commercial harm” provision, which requires any corporation seeking civil reparations to prove its business suffered as a result of the alleged abstraction.
On Capitol Hill, the debate over database legislation continues.
“Databases have value,” said bill sponsor Rep. Howard Coble, R-N.C. “They are worth protecting. Individuals and businesses would not devote the time, energy, and financial resources necessary to developing databases were this not true.”
Despite Coble’s concerns, the bill’s future remains in flux. After receiving a favorable recommendation from the House Judiciary Committee (formerly chaired by Coble), the legislation emerged March 11 from the House Energy and Commerce committee with an “unfavorable recommendation.”
During the proceedings, Rep. Cliff Stearns, R-Fla., said he believed the bill could “put a chill on the use of information because of the fear of litigation.”
As an alternative, the committee submitted a scaled down version of the bill, or H.R. 3872, which more narrowly defines “misappropriation” as it relates to databases.
ALA’s Nisbet said the alternative bill is much improved from the original because it limits the kinds of facts liable under the law to so-called “hot news,” or breaking news such as sports scores, which a company would be allowed to lay claim to for a short period of time–until the news is out long enough to be considered part of the public domain, she said.
The appearance of an alternative bill notwithstanding, proponents of the stricter H.R. 3261, including SIIA’s Kupferschmid, remain confident some version of the original legislation will pass this year.
H.R. 3261 (as reported in House)
Association of American Universities
Coalition Against Database Piracy
American Library Association
Software and Information Industry Association