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Hyperlaw Memo on Database legislation
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Info-Policy-Notes | News from Consumer Project on Technology
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September 18, 1998
Hyperlaw on Database legislation
jamie love <love@cptech.org>
The following is a memo sent to CPT by Alan Sugarman, the CEO
and owner of Hyperlaw, a New York City based publisher of court
opinions, followed by some details on the status of the
legislation. Hyperlaw has been battling West Publishing (owned
by Thomson Publishing) for several years over West Publishing's
claims that it "owns" the citations and published corrections
to published court opinions.
West and Lexis (sometimes called Wexis) dominate the legal
publishing field, and both companies are the primary supporters
of database legislation that would severely limit the right of
the public to reuse data now in the public domain. This
legislation was passed by the House of Representatives, after
a well financed (and well connected) lobbying campaign by West
and Lexis, but with almost no public debate over the measure,
despite its far reaching consequences for databases involving
internet domains and IP addresses, financial statistics,
genealogical information and countless other items.
CPT has more information about the database proposal at:
http://www.cptech.org/ip/database/
Because the legislation is largely designed to overturn
copyright cases that have been won by Sugarman's Hyperlaw
(the legislation would have far broader impacts), I asked
Alan to send a note to Senator D'Amato (R-NY). This was
Alan's note. jamie
<-----------------begin Hyperlaw memo-------------------------->
Memorandum
To: Jamie Love
From: Alan D. Sugarman 212-873-1371
17 W. 70 St., NY, NY 10023
Dated: September 18, 1998
RE" The *Collections of Information Antipiracy Act*
(S. 2291/H.R. 2652)"
I understand that you will be meeting with Senator D'Amato today and I
would very much appreciate if you would register the opposition of
HyperLaw, a small New York company, and myself to the so called database
protection bill.
First, speaking as a lawyer and a citizen, I am appalled at the
fundamental recasting of copyright law being pushed by multi-national
mega- publishing companies who have started this travesty by first
forcing through legislation in the European Union and then WIPO. Then
these same companies have now crossed the oceans and the borders to
create a new copyright regime which will be anti-competitive, ignores
the American tradition of open access to information and most
significantly will create inexorable market forces which will encourage
governments bodies at all levels to cede the publication and archive of
governmental information and governmental funded information to private
monopolies.
Secondly, HyperLaw as a company has for years been seeking to make
widely available at affordable prices the authoritative and citable text
of court opinions. To that end, we have won two decisions in the United
States District Court for the Southern District of New York against the
Canadian Thomson's West Publishing Company which has allied with the
English-Dutch Reed Elsevier's Lexis. Those decisions are now on appeal
to the United States Court of Appeals for the Second Circuit and we
expect a ruling at any time. If HyperLaw wins, then the largest benefit
will be to the public at large and we expect other publishing ventures
that will seek to establish true competition in this monopolistic
market. And, we also expect that this information will become available
in authoritative and citable form on the Internet for the benefit of the
public. As you may not understand, one result of this present situation
is that the decisions of the federal district courts are NOT available
on the Internet.
The bill is fundamentally anti-competitive, and it is not at all clear
on the face of the bill who or what it is seeking to protect. The Feist
decision in terms of its impact on the telephone directory business
remains intact - from a competitive point of view, the decision was
wildly successful and spawned new businesses. So, written in the bill
is an exemption which would exempt telephone numbers from the bill. The
poster child for the Information Industry fronting for Thomson and Reed
Elsevier was a CD-Rom company known as Warren Publishing which testified
for the bill. Warren which copies and republishes FCC reports in print
had like Thomson lost in the courts against its new innovative
competitor Microdos. But, in my view the bill would not protect the
very specific activity of Microdos, but no one from Congress has
contacted Microdos to find out its side of the story. Neither HyperLaw
nor Microdos were permitted the opportunity to testify in the House
hearings, while its protagonists in litigation were. This bill is about
thwarting competition and the free flow of government funded
information, not about piracy.
So, one must ask who specifically does this bill seek to protect. Given
the history of the supporters of database protection, from the ABA study
chaired by a senior lawyer at West to the West pushed Paperwork
Reduction Act amendments to the swarm of West lobbyists on the hill, it
is clear to anyone that West has the most pressing passion for this
bill. Clearly the bill is intended to protect the West citation system
and the publication of the authoritative and citable form of federal
court opinions that the federal courts have ceded to West. But, is
ultimate impact will be far wider and destructive to the free flow of
information in many segments - the mere fact that powerful industries
have been able to exempt many areas from the bill shows how overbroad is
the bill and it will be too late when in a couple of years the true
impact to others becomes recognized. If the bill becomes law, there
will be no turning back and permanent damage will be done.
<--------------end Hyperlaw memo-------------------------->
STATUS OF LEGISLATION
Last night the Senate passed a digital copyright bill that did
not include the database legislation. The house bill did
include the database legislation. The two versions will be
hammered out in Conference committee. The Senate has never
held hearings on the database legislation, and we are asking
that it exclude the house language on the database proposal
until the Senate can consider the topic with a normal
opportunity for hearings and debate.
For more details regarding the status of the legislation, see
the attached Daily Digest (courtesy of Jessica Littman):
"WIPO Copyright Treaties Implementation Act: Senate passed H.R. 2281,
to amend title 17, United States Code, to implement the WIPO Copyright
Treaty and the WIPO Performances and Phonograms Treaty, after striking
all after the enacting clause and inserting in lieu thereof the text of
S. 2037, as passed by the Senate.
Page S10537
"Senate insisted on its amendment, requested a conference with the
House thereon, and the Chair appointed the following conferees on the
part of the Senate: Senators Hatch, Thurmond, and Leahy.
Page S10537
" Subsequently, passage of S. 2037 was vitiated and the bill was
indefinitely postponed."
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