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Final text: Software developers comments on the WIPO database treaty (fwd)

  Final text of the Software Developers letter on WIPO treaty.
  ---------- Forwarded message ----------
  Date: Fri, 22 Nov 1996 04:04:14 -0500 (EST)
  From: Gordon Irlam <gordoni@base.com>
                                                      Gordon Irlam
                                                      2310 Rock St.,
                                                      Mountain View CA 94043
                                                      (415) 903 0811
  Commissioner of Patents and Trademarks
  Box 4, Patent and Trademark Office
  Washington, D.C. 20231
  Ms. Carmen Guzman Lowrey
  Associate Commissioner for Governmental and International Affairs
  November 21, 1996
  Dear Ms. Lowrey,
  We are responding to the request published in the Federal Register of
  October 17, 1996 for Comments on the Chairman's Text of the WIPO
  Diplomatic Conference on Certain Copyright and Neighboring Rights
  These comments are directed at the Chairman's Text of the Basic
  Proposal for the Substantive Provisions of the Treaty on Intellectual
  Property in Respect of Databases.  We do not seek to offer comments on
  any of the other proposals on the table at this conference.
  As computer industry business leaders and as software developers, we
  are at the forefront of the National Information Infrastructure (NII)
  and the emerging Global Information Infrastructure (GII), and as such
  hope we may be able to offer a number of insights into some of the
  possible effects of this treaty on the NII and GII.
  We believe that the Internet represents the foundations of the GII,
  and as such we look to the Internet to assess the effects of the
  database treaty on the GII.
  (1) Effects of the treaty on the Internet routing infrastructure
      At the lowest level, the computers forming the Internet,
      communicate through the exchange of packets of information.  These
      packets pass from one system to the next until they reach their
      destination.  Typically a packet needs to pass through around 20
      different systems before it reaches its final destination.
      Analogous to the postal system, each packet has an address printed
      on it that identifies the final destination.  These addresses are
      effectively 9-digit numbers, and are known as IP addresses.
      Unlike the postal system these addresses are not defined
      geographically.  Instead, a particular IP address might be located
      anywhere in the world.  Intermediate systems are aware of the
      topology of the Internet, and know where the computer with a
      particular IP address is located.  Each intermediate system knows
      who to forward a packet to next to ensure it reaches its final
      Intermediate systems know where each IP address is located through
      the exchange of what is termed routing information.  The systems
      exchange information identifying where each IP address is located.
      Computers send messages to connected systems to saying: "I am
      here", and the connected systems then collect up and send on this
      information to other systems on the Internet.  This information is
      sent in the form of routing tables listing a set of IP addresses,
      and for each IP address listing its current location.
      These routing tables fall under the domain of the proposed
      database treaty.  As such, a network provider would be able to
      claim ownership of the routing table constructed from the routing
      information provided by its subscribers.  Doing this would allow
      the network provider to prevent, or control the way in which
      others can make use of such routing information.  Apart from the
      network provider, there is no other practical method of obtaining
      this routing information.  Such routing information is essential
      for network connectivity, and, as such, could be used as a price
      lever by large network connectivity providers (PSI, UUNet, MCI,
      Sprint) to force smaller providers out of the marketplace.  An
      example end-user license for the use of such routing tables might,
      for instance, prohibit the exchange of the information contained
      in the routing table with anyone other than a customer of one of
      the large network providers.
  (2) Effects of the treaty on the Internet domain name system
      Users on the Internet aren't required to know the IP address of
      the hosts to whom they are talking.  Instead, they refer to
      computers through textual names, such as "www.uspto.gov".  The
      Domain Name System is the component of the Internet responsible
      for translating these textual host names into IP addresses, to
      which packets can then be sent.
      The domain name system is administered by Network Solutions
      Incorporated under a time limited contract with the NSF.  Parties
      contact Network Solutions telling them the names of new machines,
      and Network Solutions publishes a database on the Internet that in
      effect contains the IP address of each machine.
      The domain name system meets the definition of a database given as
      specified by the treaty.  No practical way exists to obtain the
      information contained in this database other than either directly
      or indirectly through the data supplied by Network Solutions.
      The entire data contained in the DNS database is made available by
      Network Solutions to 10 or 20 specialized systems known as root
      name servers that are owned and operated by independent third
      parties.  These root name servers are then contacted by the users
      of the Internet whenever they need to translate a host name into
      an IP address, so that they can then contact a particular named
      Since it was drafted prior to the treaty, it isn't clear from the
      Network Solutions's contract with the NSF, whether Network
      Solutions would be able to claim ownership of the DNS database, or
      if the database belongs to the NSF.  It seems plausible that
      Network Solutions would be able to claim ownership.  We are
      however unable to make this claim with certainty.
      The ability to claim ownership of databases such as the DNS
      database could have a potentially severe chilling effect on the
      Internet.  Network Solutions position as sole provider of the DNS
      database would enable them to charge a high price for access to
      it.  This information contained in this database is fundamental to
      a user's ability to navigate around the Internet, and essentially
      Network Solutions would end up owning the Internet.
      It seems vital to us that in evaluating the effects of this
      treaty, possible serious real world ramifications such as this
      must be very carefully analyzed and understood.
  (3) Effects of the treaty on Internet search services
      There are a number of Internet search services which users use to
      find information on the Internet.  Examples of popular search
      services today include Alta Vista, Excite, Infoseek, and Verity.
      Information on the Internet is contained in individually owned and
      managed repositories called web sites.  Each web site contains
      numerous documents.
      The search services work by visiting each web site on the
      Internet, retrieving the site's contents, and from the contents
      constructing an index of the information contained on the web
      site.  To perform a search, a user types in a few key words.  The
      search service is then able to use its indices to return to the
      user a list of all web sites containing the specified words.  The
      search services do not return the contents of the indexed web
      sites, but merely tell the user the names of the relevant web
      The generation of an index for a web site currently does not fall
      under the scope of the Copyright Act.  Under the proposed database
      treaty, each web site on the Internet fully meets the definition
      of a database.  And, under this treaty the ability to construct an
      index of a web site, which of necessity involves retrieving the
      information from the web site would appear to fall under the
      "right to authorize or prohibit the extraction" terms of the
      proposed treaty.
      It is impractical for search services to gain permission to index
      every web site on the net, and as a result the only options would
      be for search services to either flout the law, hoping that their
      infringements won't be prosecuted, or to cease providing this
      valuable service to the users of the Internet.
  Some might believe that the uses of data that we describe here may not
  be prohibited by the treaty.  They may imagine the extraction is not
  substantial, or they may think the extraction is not significant to
  the value of the database.  Such beliefs are wrong.  The extraction
  that occurred here is prohibited by the treaty:
  (1) Extraction of "all" of the database occurred which would be prohibited
      In the three situations considered, it was not a portion of the
      database that was extracted but the entire database.  Routing
      involves the entire routing tables being transfered from one
      system to another.  DNS involves the transfer of the entire DNS
      database from Network Solutions to the root name servers.
      Searching requires the transfer of the entire contents of a web
      site to the search system for indexing.
      Article 3 of the treaty prohibits the unauthorized extraction or
      utilization of a database.  Extraction is defined as:
         "the permanent or temporary transfer of all or a substantial
          part of the contents of a database to another medium by any
          means or in any form"
      Thus, since the contents of the entire database have been
      transfered, whether the contents also meet the definition of "a
      substantial part" is moot.  The treaty already prohibits the
      extraction which has taken place.
  (2) The effects of extraction would be "substantial" and thus prohibited
      The treaty prohibits the extraction of the entire database.  Even
      if extraction of the entire database was not prohibited, or even
      if the extraction of the entire database had not taken place, the
      effects of the transfer would still be considered "substantial",
      and thus prohibited by the treaty.  The treaty defines "a
      substantial part" of the contents of a database as:
         "any portion of the database, including an accumulation of
          small portions, that is of qualitative or quantitative
          significance to the value of the database"
      In assessing the significance of the transfers that have taken
      place on the value of the database, we need to do so with respect
      to the value of the database once this treaty has been enacted,
      and not with respect to the value of the database today.  Today,
      the market value of the DNS database is negligible.  Multiple root
      name servers provide access to the contents of the DNS database to
      anyone on the Internet.  The root name servers do not charge for
      access to the DNS database, and if they attempted to do so they
      would not be successful.  Users would simply contact other root
      name servers willing to provide the same information for free.
      Following the enactment of this treaty, and possibly following the
      expiration of its contract with the NSF, Network Solutions could
      set up its own root name servers, access to which required the
      payment of a fee.  Network Solutions could then claim that the
      independently owned and operated root name servers through their
      transfer and subsequent provision of free access to the DNS
      database, had a "significant" negative impact on the value of the
      DNS database.  Thus the transfer of the DNS database from Network
      Solutions to the independent root name servers would under the
      terms of the treaty be considered "substantial".  This would allow
      Network Solutions to prohibit the independent root name servers
      from obtaining copies of this information.  This would leave
      Network Solutions as the sole provider of DNS information, and
      enabling it to charge a substantial fee for access to this
      information.  The significance of the damage this would cause can
      not be understated.
      The same considerations apply to the routing and searching
      databases.  Today, the value of the originating databases that
      provide this information are insignificant.  Following the
      enactment of this treaty, the value of these databases would
      become significant because the owners of these databases could
      then use them to establish a monopoly.  In the case of searching
      this might involve mandating the use of a web site specific search
      interface for searching a particular web site, and for which a fee
      is charged.  The effect of the existing Internet-wide search
      services on the ability of a site to charge for a site specific
      search service would be "significant".  The indexing of such sites
      by the Internet-wide search services would thus involve the
      extraction of a "substantial" part of the database.  Under the
      terms of the treaty the operation of the Internet-wide search
      services would thus be prohibited.
      In the case of routing, large network connectivity providers may
      institute a prohibition on the redistribution of the contents of
      the routing tables by smaller providers without the payment of a
      fee.  Routing tables are essential to the operation of the
      Internet.  As such, re-distribution of them has a "significant"
      negative effect on their value.  This means any re-distribution of
      them would be considered "substantial", and able to be prohibited.
      We should emphasize that the treaty prohibits the extraction of
      the entire database.  As a result, each of the situations we are
      considered here is already prohibited by the treaty.  What we are
      doing here is showing that even if the treaty did not prohibit the
      extraction of the entire database, but instead only prohibited
      actions that had a significant effect on the value of a database,
      the harmful effects of the treaty would be unchanged.
  We hope these comments help highlight some of the serious issues
  raised by the proposed database treaty.  We believe the treaty has
  been developed through abstract theoretical considerations, and that
  many of the practical consequences of this treaty have not been
  carefully considered.
  If recent U.S. court decisions make it necessary to make changes in
  database protection law, we believe this should be achieved through
  carefully considered legislative changes to the U.S. Copyright Act.
  No form of Sui Generis protection is desirable, and especially not one
  achieved via an international treaty.  We feel it will only be
  appropriate to consider an international treaty defining the scope of
  protection for databases if and when an acceptable set of changes have
  been made to the U.S. Copyright Act.
  The WIPO database treaty is based on an inadequate understanding of
  the scope of its applicability and its resulting effects.  We find the
  treaty to be ill-considered and inappropriate.  In view of the effect
  it would have on the Internet and the future U.S. computing
  infrastructure, we urge the U.S. work to have this treaty removed from
  further consideration at the WIPO conference.
  Thank you for considering our opinions.
      Gordon Irlam
              Internet Software Developer -- Mountain View, California
      L. Peter Deutsch
              ACM Fellow
              ACM Software System Award co-recipient
              President, Aladdin Enterprises -- Menlo Park, California
      Keith D. Lauver
              President, MicroAssist, Inc. -- Northfield, Minnesota
      Michael Cohen
              President, Vermont Business Visions, Inc.
                  -- North Springfield, Vermont
      Luther Welsh, Jr.
              President, NDA Technologies, Inc. -- Tustin, California
      Michael Tiemann
              Director, Cygnus Support -- Mountain View, California
      Earl Green
               President, Crystal Wind Communications, Inc.
                   -- Crystal River, Florida
      Steve Shannon
              President, Coffeehaus Networks, Corp. -- Boston, Massachusetts
      Brian Bartholomew
              President, Working Version -- Cambridge, Massachusetts
      Rodney H. Kay
              President, Kay Communications -- Tampa, Florida
      Dean Anderson
              President, Plain Aviation, Inc. -- Nashua, New Hampshire
      John Gilmore
              Entrepreneur -- San Francisco, California
      Christopher H. Wysocki
              VP & CTO Data Life Associates, Inc. -- Verona, New Jersey
      Philip Peake
              CEO, Newberg Webcenter -- Newberg, Oregon
      John R. Levine, Ph.D.
              Co-author of "The Internet for Dummies" and other books
              Internet lecturer/consultant and owner, I.E.C.C.
                  -- Trumansburg, N.Y.
      Tim Pearson
              Author of "Internet Marketing", published by John Wiley & Sons
              Director, FutureLink -- San Francisco, California
      F. E. Potts
              Author of "F. E. Potts' Guide to Bush Flying", ACS Publishing
              Recipient Aviation/Space Writers "Award of Excellence"
              Owner, The Web Outpost -- Tucson, Arizona
      Gail McGowan Mellor
              Owner, Earth Sciences/Writer's Inc. -- Louisville, Kentucky
      Dan Connolly
              Research Scientist -- Cambridge, Massachusetts
      W. Curtiss Priest
              Director,  Center for Information, Technology & Society
                  -- Melrose, Massachusetts
      Laura Kusumoto
              Director of Production, LVL Interactive
                  -- Santa Clara, California
      Phil Karn
              Software Engineer -- San Diego, California
      Bodo Parady
              Staff Engineer, Sun Microsystems -- Menlo Park, California
      Blaise Pabon
              Network Analyst -- Mountain View, California
      Fen Labalme
              Software Architect -- San Francisco, California
      Joseph Kiniry
              Graduate Student & Consultant -- Pasadena, California
      David S. Miller
              Software Engineer -- East Brunswick, New Jersey
      James Salsman
              Systems Analyst -- Mountain View, California
      Lars Poulsen
              Engineering Manager -- Goleta, California
      Kathy Mitchell
              Software Engineer -- Mountain View, California
      Greg Merrell
              Senior Network Consultant -- Cupertino, California
      Robert Gunn
              Computer Consultant -- Houston, Texas
      Elizabeth Yow
              -- Norfolk, Virginia
      Verna Desatoff
              -- Fort Collins, Colorado
      Joshua M. Paulson
      Christian Greuel
              Computer Artist -- Mountain View, California
      Todd Clayton
              System Software Engineer -- San Francisco, California
      Eric Titmas
              Senior Staff Engineer -- Mesa, Arizona
      Yuri Sorkin
              Independent Mathematician -- Los Angeles, California
      Jonathan Ryshpan
              Software Project Manager -- Oakland, California
      Greg Limes
              Software Engineer -- Mountain View, California
      Frank Arnold
              Webmaster, Catholic Charities -- San Jose, California
      Marla Pereira
              Software Engineer -- California
      Adam Rifkin
              Graduate Student -- Pasadena, California
      Timothy G. Lang
              Programming Director, Community Access Center
                  -- Kalamazoo, Michigan
      Ray Baco
              Technical Support Supervisor -- Durham, North Carolina
      William Arnold, P.E.
              Principal Consultant, Pythia Corporation, Inc.
                  -- Indianapolis, Indiana
      Jack Buchanan, MSEE, MD
              Engineer and Physician -- Memphis, Tennessee
      Dan Kegel
              Software Engineer -- California
      Stanley T. Shebs, Ph.D.
              Software Manager -- Mountain View, California
      Ed Tynan
              Senior Program Manager -- Chandler, Arizona
      John Stoner
              Internet Consultant -- Fox River Grove, Illinois
      Robert Stacy
              Law Student -- Chapel Hill, North Carolina
      Brian Harvey
              Lecturer, Computer Science Division, Univ. of California,
                  Berkeley -- Berkeley, California
      Rick Crawford
              Computer Security Researcher, Univ. of California, Davis
                  -- Davis, California
      Henry Schaffer
              Professor -- Raleigh, North Carolina
      Prasad Wagle
              Software Engineer -- Mountain View, California
      John Sadler
              Software Engineer -- Palo Alto, California
      Richard Swan, Ph.D.
              Computer Scientist -- Portola Valley, California
      David Hough
              Software Engineer -- San Jose, California
      Rob Snevely
              Software Engineer -- Sunnyvale, California