"Facts Must Be Free Whatever The Cost"

Patti Waldmeir, Financial Times, January 12, 2004

Talk is cheap on thc internet but facts, for the most part, are free. That
is the best thing about life in thc digital age: free music is a sideshow;
free information is what really makes the internet worth having.So when courts or legislatures pronounce on the freedom of facts, we all
should take notice. Late last year, a US federal appeals court issued an
opinion that reads like a manifesto for the free fact movement.

But in Congress the emancipation forces face an onslaught from some of
those who round up facts and yoke them to a database. Late this month or
early next, legislators are expected to debate a controversial bill to
protect databases -- one that opponents say could create a whole new
American property right in facts and a dangerous new way to control them.

The issue in court and in Congress is: how can the public get at the facts
without destroying the investment of those who spend heavily to find and
combine information in a handy database?

The database wars may be less violent than the battles over music or film
piracy but they are arguably more important, since they affect everybody
who has anything to do with information -- and that is all of us.

Nobody is disputing that American facts are currently, by their nature,
free. The Supreme Court made that very clear back in the pre-digital age,
in a case involving telephone books.

In that unanimous 1991 ruling, the court said one telephone directory could
copy data from another without breaching copyright law. Since there was
nothing original about the way the data was combined -- it was alphabetical
-- the publisher could not protect it with copyright. Sweat alone, without
creativity, cannot create a copyright, the ruling said -- no matter how much
time or money was spent on the creation.

'I'he ruling, viewed as one of the most important intellectual property
decisions of the past generation, established a clear rule: nobody owns the
raw facts in a database. But that does not solve the problem of how to get
at them.

That was the issue in the most important recent database ruling, from one
of America's more outspoken jurists, Judge Richard Posner of the 7th
circuit federal appeals court. That case was a dream:for the free fact
movement: it asked whether property agents have a right to property data
collected by the tax authorities in some Wisconsin municipalities.

Wisconsin believes in freedom of information, so the data are normally
available to the public. But in this case the authorities refused to reveal
details about taxpayers -- such as the number of their bathrooms and the
value of their homes -- for fear of breaching the copyright of the company
whose software compiles the information in their database.

Judge Posner, with characteristic restraint, said it would be "appalling"
if the software company could stop the estate agents getting at the
bathroom data.

The tax assessors do all the hard work counting the Jacuzzis, he ruled: the
software just sorts it into categories. The public should be able to get at
those data -- even if the only practical way to extract them would be to
copy the whole (copyrighted) database.

'I'he new database bill which could soon graduate from the House judiciary
committee to a full floor vote, would probably not affect a case like that
-- where the party that invested to collect the data is not the one trying
to protect it. But according to NetCoalition, a lobby group that opposes
the bill, the legislation could impede all sorts of other useful elements
of everyday digital life, such as the ability to compare prices of airline
tickets across the web.

The US chamber of commerce (which also opposes the bill, along with
internet companies such as Google and Verizon, librarians and many
academics) says it is not just dangerous but also pointless. Database
piracy is not a big problem, says the Chamber: and where it occurs,
database companies have powerful legal tools to combat it without expanding
copyright law.

They can write contracts that ban copying, they can use other federal and
state laws; and, if all else fails they can use technology to lock content.
The auction slte eBay -- one of the biggest proponents of legislation, along
with the publisher Reed Elsevier -- even used an ancient English common law
doctrine known as "trespass to chattels" to fight off a feisty little New
Age site, Bidder's Edge, that dared to combine listings from rival
auctioneers in one convenient spot. I used to use Bidder's Edge to
comparison shop my auctions. Now I just use eBay. If existing law could
deal such a blow to the freedom of facts -- not to mention consumer choice --
what need can there be to strengthen it?

Admittedly, different courts rule in different ways on these issues. In the
best of all digital worlds, it would he nice to have one federal law to
clarify the status of facts, says Jane Ginsburg, a copyright expert at
Columbia Law School. But the proposed database law would do no such thing.
It would clarify the rights of database providers to protect themselves --
but not their responsibility to protect the public domain.

The liberation of the fact is arguably the internet greatest contribution
so far to world history. It would be a shame to risk all that now.