Protecting Against Piracies of the Past

by Andy Oram
November 19, 1999

“With this law will I bring justice to many nations,” cried the old king Hammurabi as he watched his scribe Naphurit put the final touches on his Code.

“Not quite,” grumbled Naphurit. “I think you need an intellectual property clause.”

Hammurabi looked puzzled, so the scribe sat back on his heels and filled him in. “My bronze steles are top-quality stuff—people will still be reading them 4000 years from now—but a guy named Cushamma is copying my cuneiform onto cheap clay tablets and killing me in the marketplace.” He ended with a wave of disgust toward the teaming square outside the palace.

“I will pass a new law, then,” promised Hammurabi, who could not imagine governing his kingdom without the scribe to rally the population around his pronouncements. “Every document must weigh at least four minas, and anyone who makes a copy within 70 years of the scribe’s death will pay a fine of 50 shekels.”

Naphurit was mollified. But many years later, when the Arameans immigrated and introduced their technique of writing on flexible, light-weight papyrus with frequent recopying, the Sumerians realized that their laws held them back from an information revolution.

A fable for our time

Fast forward. As we enter the third millennium of the current era, I worry that a real-life version of my Hammurabi fantasy will haunt us in the form of the Collections of Information Antipiracy Act.

To say this bill is being “currently considered” in Congress would be off-base, because sponsors have been trying to pass the damn thing for five years. The purpose of the bill is to create a new right that protects the investment of database compilers like Reed Elsevier and Lexis-Nexis (who are prominent backers). Someone who extracts “a substantial part” of a “collection of information” in a way that hurts the market for the original collector could face up to six years in prison, several hundred thousand dollars in fines, and civil penalties to boot.

Early versions of this bill were quite scary, leaving open the possibility that—for example—a professor could be prosecuted for publishing an article that contained a table or chart based on statistics published by someone else. The original collectors could invoke the law wherever they could make a claim that the reuse of their information might hurt them in some potential market. Even the Clinton Administration, a notable friend of intellectual property holders, opposed the bill. The Congressional sponsors, led by Rep. Howard Coble of North Carolina, listened to critics and incorporated many clauses softening its potential negative impacts.

Thus, the current bill (H.R. 354) offers protection for people copying data for educational, scientific, and research purposes, along with an even stronger escape clause for news reporting and a harbor for Internet service providers. In general, the bill is much more forgiving of noncommercial uses than earlier versions. It also tries to avoid abuses by narrowing the definitions of “collection” and “market.” (Now the original collector has to be offering its collection in that market or have “taken reasonable steps to offer” it “within a short period of time.”)

Still, the law is uncomfortably vague about what constitutes a collection, how much extraction is “substantial” enough to be illegal, and how to prove that there is a “difference” between the original collection and a use that could be considered “reasonable.”

Any law that protects facts (rather than expression, like copyright) is treading dangerously on uncharted ground. Opponents of the bill have proposed alternatives based on “misappropriation” or “unfair competition,” and recently have lined up behind a much more restricted bill called the Consumer and Investor Access to Information Act (H.R. 1858). But the Collections of Information Antipiracy Act may have been amended enough to win passage. Since its backers succeeded in getting the European Parliament to pass a directive offering database protection in 1996, they are alarming Congress with the claim (hotly contested by opponents) that the U.S. needs a reciprocal law in order to ensure protection for its databases in Europe.

The evolution of data in our time

It’s really not clear why database vendors need a drastically new approach to intellectual property. Profits are high, evidence of copying is rare, and copyright already protects the most obvious form of copying (dumping the data to another medium in the same format).

But more profoundly, this five-year-old initiative smacks of an earlier age and of technologies that may soon be obsolete. The days of walking into a store to purchase a CD-ROM are quickly being replaced with online services. The wave of future disputes can be fond in the recent complaints of the eBay auction site against and Bidder’s Edge, which offer search services that retrieve items from eBay along with its competitors.

A bit of eBay’s problem is that it has a hybrid revenue model, and is deprived of potential income from ads when people retrieve items from and Bidder’s Edge instead of going directly to eBay. But eBay is piqued mainly because the search sites make it easy to compare its offerings to the competition, precisely the kind of application that is supposed to make the Internet so great for commerce. Would eBay pursue a Perl hacker who wrote an LWP program to retrieve and compare different offerings?

If the Collections of Information Antipiracy Act is passed, you can bet it will turn up in cases similar to eBay. Litigators will probably have to claim that linking is a form of copying, a slippery slope we don’t want to start down.

I’m sure there are legitimate intellectual property rights in new media such as the Internet, and old laws will have to updated or reinterpreted to provide a level playing field. But let’s not rush to create new forms of intellectual property even as the media that suggested them start to subside. It would be a shame if the innovations of cyberspace had to give way before a law that caused an outmoded view of the world to be set in stone.

Andy Oram is an editor at O’Reilly Media. This article represents his views only. It was originally published in the online magazine Web Review.