Oct. 22, 2003
No one should be able to own facts about other people. Our names
and numbers, and also the laws we must obey, should not be property
that can be owned by corporations and policed by federal courts.
But special interests, such as the Software and Information
Industry Association, are seeking new powers to own facts about us and
about information we need. After quietly shopping a bill to Members of
Congress for several weeks, the Database and Collections of Information
Misappropriation Act was finally introduced last week as H.R. 3261.
The Constitution authorizes Congress to create copyrights. But
your name, address and telephone number are facts that cannot be
copyrighted, as the Supreme Court said when it ruled in 1991 that no
one can copyright the telephone book.
The Constitution authorizes copyright protection for "authors."
The Court ruled in Feist v. Rural Tel. Serv. Co. that a collection of
facts lacks sufficient creativity to constitute authorship.
H.R. 3261 doesn't use the word copyright, but it would create a
new federal property right in online and offline databases (collections
of information), and give the federal courts power to police the use of
information in databases. Granting large U.S. and foreign corporations
the power to own personal facts about individuals, and prevent others
from using those facts, would be the most lucrative handout in years.
H.R. 3261 would allow federal courts to impose stiff penalties if
someone uses information from a database that a corporation claims to
own. The exceptions to this rule are vague and subject to contrary
interpretations, leaving users liable to a lawsuit in which it's up to
a federal judge to decide what is "reasonable."
Over the past decade, without federal legislation or judicial
supervision, databases have grown rapidly in size and number, and today
there are giant databases containing our travel plans, our medical
records, our telephone calls, our credit card usage, and even the
websites we visit. This Collections of Information bill would chill
productive activity because few users of data can afford taking a
chance on how a court might rule.
Prominent groups from all across the political spectrum vigorously
oppose this new bill. The U.S. Chamber of Commerce says that the
legislation could even prevent people from using data found in books
checked out of libraries.
Peter Veeck felt the brunt of the corporate police. When he
posted on his website the municipal building safety codes that all are
required to obey, he was sued by a company that claimed to own the
After long and costly litigation, in 2002 Veeck won the case
called Veeck v. SBCCI (PDF file). Judge Edith Jones wrote for the Fifth Circuit
en banc: "Citizens may reproduce copies of the law for many purposes,
not only to guide their actions but to influence future legislation,
educate their neighborhood association, or simply to amuse."
On the last day of the U.S. Supreme Court term in June, the Court
let Veeck's victory stand. During the litigation to force Veeck to
remove building safety codes from his website, a hundred people
perished in the Rhode Island nightclub fire attributed to ignorance
about building safety codes.
The special interests still want Congress to allow corporations to
exercise exclusive ownership over collections of facts. They failed to
pass a similar bill called the Collections of Information Anti-Piracy
bill in 1998 and are now trying again with H.R. 3261 in order to get
from Congress what they could not win in the courts.
The real gold may lie in the medical databases that are still
largely secret. The next time you want an itemization of why a brief
hospital stay costs you far more than the most luxurious hotel,
remember that medical procedure codes and reimbursement rates are not
The American Medical Association (AMA) claims to own these
federally required codes, reaping tens of millions of dollars in
royalty fees from them. You can go on the internet and find the price
of almost anything from a plane ticket to an automobile, but the AMA
will sue anyone who dares to post the billing codes and rates for
simple medical procedures.
Giving new powers to the federal courts to police the use and
exchange of information collected in databases would have a negative
effect on our already shaky economy. Creating federally mandated
ownership over data is not the way to go if we still believe in free
Nor is H.R. 3261 the way to go if we believe that the federal
government should exercise only enumerated powers. The Constitution
does not authorize Congress to create any property rights beyond those
specified in the Copyright Clause.