US Congress questions data protection proposal

Supporters wanting to change the laws covering database protection in the US got a sceptical response yesterday from members of...

Supporters wanting to change the laws covering database protection in the US got a sceptical response yesterday from members of two US House subcommittees.

They argue that existing US law, particularly copyright law, is weak in protecting the sometimes noncreative work that goes into gathering and maintaining a database. A new law is needed to protect the "immeasurable" value that exists in databases owned by US companies against "free-riders" who would take that information, said Keith Kupferschmid, vice president of intellectual property policy and enforcement for the Software and Information Industry Association.

The Database and Collections of Information Misappropriations Act, yet to be introduced in the House, would allow owners of commercial databases to sue anyone who sells portions of their databases if those databases contain time-sensitive material and the owner incurred a "substantial" cost when generating or maintaining the material.

Opponents of the draft bill, including the United States Chamber of Commerce, the American Civil Liberties Union (ACLU) and the Association of American Universities, questioned the need for a new law, with some saying existing copyright and other laws already protect most databases.

"We have the benefit of contract, intellectual property, copyright, state misappropriation, trespass and federal computer anti-hijacking statutes and numerous other protections that are on the books," said Thomas Donohue, president and chief executive officer of the United States Chamber of Commerce, during a congressional hearing. "This is a solution in search of a problem, and we ought to be very careful about that."

Although Donohue questioned if there was a groundswell of support for new database legislation, Kupferschmid listed at least four recent court cases where the owners of databases lost lawsuits to competitors using their information without permission.

In one case, he said, a competitor copied close to three-quarters of a company's school information database and posted the information on the internet, helping to drive the original database owner out of the database business.

"With the internet and advances in new technology, databases can be easily stolen and made available to others," said Kupferschmid, testifying for the Coalition Against Database Piracy, a coalition of database producers. "Clearly there is a definite and significant need for database protection legislation."

The draft legislation could give database creators incentives to keep producing new products, added Representative Lamar Smith, a Texas Republican and chairman of the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property.

"In cyberspace, technological developments represent a threat as well as an opportunity for collections of information," Smith said. "Copying factual material from a  third party's collection, and rearranging it to form a competing information product is cheaper and easier than ever."

Kupferschmid's testimony listed about 80 companies and organisations that support "meaningful" database antipiracy legislation, including eBay, and But Donohue argued that his organisation's three million members overwhelmingly did not support database protection legislation, and the handful of court cases Kupferschmid listed did not show a widespread problem.

"This issue is so small compared with everything else," Donohue said. "I would not argue that you somewhere could find someone who was injured. We don't think this legislation is going to help, and what is going to do is define an opportunity for certain class-action or mass-action lawyers."

Donohue noted that the draft legislation allows for database owners to collect quadruple their damages in certain instances when their information is taken by a competitor. That would case a "litigation nightmare", Donohue said.

Other critics of the draft bill raised objections about the proposal's impact on free speech and freedom to share information. William Wulf, president of the National Academy of Engineering, said the draft legislation is an improvement over older database protection legislation, and it carves out an exemption to penalties when non-profit groups share databases. But, he added, it could discourage the sharing of information in research projects involving both universities and for-profit corporations.

"Once created, a new protection regime is almost impossible to dismantle," Wulf said while asking Congress to move slowly on the draft bill.

The ACLU said the legislation could prohibit the dissemination of facts simply because they are included in a commercial database, although the draft bill includes exemptions for journalists and for hyperlinking to databases.

The ACLU, along with Representatives Rick Boucher, a Virginia Democrat, and Janice Schakowsky, an Illinois Democrat, also questioned a provision in the draft legislation that mirrors a much-debated subpoena process in the Digital Millennium Copyright Act (DMCA).

In the DMCA, copyright holders such as the recording industry are allowed to seek subpoenas of the names and addresses of suspected copyright violators without oversight from a judge.

The Recording Industry Association of America has filed thousands of such subpoenas against suspected music downloaders' internet service providers in recent months, raising privacy questions in Congress.

Critics of the DMCA subpoenas have said that without a judge's oversight, anyone from a stalker to a rapist could claim to be a copyright owner and find out personal information about another internet user.

The draft database legislation would allow owners of databases to seek similar subpoenas for the identity of those suspected of copying someone else's database for commercial gain. "I'm not a lawyer, but what I've heard as a layman scares me to death," Wulf said of the subpoena process.

The subpoena process in both the DMCA and the draft legislation deprive suspected infringers of due process, Schakowsky said, but David Carson, general counsel of the US Copyright Office, said US law allows lawyers in civil lawsuits to subpoena witnesses without a judge's order.

"We think most of the complaints you've just described frankly have very little to them when you peek underneath the hood," Carson said of privacy concerns over the judge-less subpoenas.

Carson's comments prompted a testy exchange with Boucher, who questioned how, in the DMCA subpoena process, suspected infringers could ask a court to stop the release of their personal information. Boucher said passing database protection legislation when it's not needed would be "mischievous".

But Carson defended the DMCA subpoena process and said a narrowly focused database protection law could avoid the expansion of US copyright law that critics of the DMCA fear. He called the draft bill, an attempt to iron out differences between the House Judiciary and Energy and Commerce committees, a "major step in the direction of balanced legislation".

Representative Howard Berman, a California Democrat, noted that some critics of the database draft bill point to existing copyright law as protection for database owners. Yet, he said, some of those same critics want to roll back existing copyright law, including the DMCA.

But Representative Cliff Stearns, a Florida Republican and chairman of the House Energy and Commerce Committee's Subcommittee on Commerce, Trade and Consumer Protection, questioned if database protection legislation would discourage the development of new databases and create a property right for factual information.

Stearns said he would not comment on the draft bill "until I can be certain that this draft strikes the appropriate balance between access to information, innovations and protection against misappropriation.

"It is plausible that such a balance may be unattainable," he added.

Grant Gross writes for IDG News Service

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