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.