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<h1>Federal Relations <img src="RWB_LINE.gif" width="600" height="10"></h1>
<p>&nbsp;</p>
<p>May 25, 1999</p>
<p>The Honorable Howard Coble<br>
Chairman, Subcommittee on Courts <br>
and Intellectual Property<br>
Committee on the Judiciary<br>
U.S. House of Representatives<br>
2468 Rayburn House Office Building<br>
Washington, DC 20515</p>
<p>The Honorable Howard L. Berman
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Honorable
William D. Delahunt<br>
Ranking Minority Member,
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Subcommittee
Member, Subcommittee on&nbsp; <br>
on Courts and Intellectual Property
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Courts and
Intellectual Property<br>
U.S. House of Representatives
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; U.S.
House of Representatives<br>
2330 Rayburn House Office Building
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 1317 Longworth
House Office Building<br>
Washington, DC 20515
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Washington,
DC 20515-2110</p>
<p>&nbsp;Dear Chairman Coble and Congressmen Berman and Delahunt:</p>
<p>The Association of American Universities, American Council on Education, and National
Association of State Universities and Land-Grant Colleges (collectively, the &quot;higher
education associations&quot;) write this letter to offer our thoughts on the Amendment in
the Nature of a Substitute to H.R. 354, the Collections of Information Antipiracy Act, as
passed by the Subcommittee on Courts and Intellectual Property.</p>
<p>The higher education associations appreciate the consideration you have given to the
concerns raised in our testimony presented at the March 18 hearing by University of
Rochester<i> </i>Provost Charles Phelps. The Amendment is substantially improved in
numerous respects over the bill as originally introduced and reflects a thoughtful effort
to accommodate our concerns. We note, in particular:
<ul>
<li>elimination of a cause of action for &quot;use&quot; and movement in the direction of a
&quot;dissemination to the public&quot; standard,</li>
<li>narrowing the markets that may be injured to those that provide substantial revenue,</li>
<li>improvement of the &quot;harm&quot; standard by addition of a materiality requirement,</li>
<li>clarification that certain types of works cannot constitute &quot;collections of
information&quot;,</li>
<li>elimination of concept of qualitative substantiality as a measure of misappropriation,</li>
<li>significant improvements to the &quot;reasonable use&quot; exception,</li>
<li>clarification of several of the technical items mentioned in our testimony, and</li>
<li>efforts to limit the risk of perpetual protection and protection for government data.</li>
</ul>
<p>&nbsp;</p>
<p>We are concerned, however, that despite this very positive progress, the Amendment
falls significantly short of the critically needed changes to H.R. 354 identified in our
testimony. In some instances, while it appears that the Subcommittee intended to implement
the requested concepts, the language simply falls short of the necessary goal. In other
instances, the Amendment moves in the right direction, but leaves open potential liability
that we believe is inappropriate. In still other instances, concerns have not been
addressed. In light of the fundamentally important role that information plays in the
progress of science and education and the risks of altering this nation&#146;s fundamental
information policy of open access to information <i>qua </i>information, we are unable to
support the bill as amended.</p>
<p>Because we were first provided an opportunity to review the Amendment on Tuesday of
last week, we are not able to provide full comments at this time. However, in order to
further the debate, and to help you to understand our continuing concerns, we offer this
initial reaction to several of the key changes in the Amendment and how they address the
concerns stated in our testimony. We are hopeful that we will be in a position to provide
fuller comments in the near future.</p>
<p>1. <i>Conduct Giving Rise to a Violation</i>. We are pleased that the Amendment
eliminates the possibility of violation for &quot;extraction or use in commerce&quot; and
moves, in section 1402(a), in the direction of a dissemination test. However, by employing
the broad language of &quot;make available to <i>others,</i>&quot; involving a term that
potentially could, for example, include focused transactions with students or with
scientific co-workers, the language does not approach the concept of prohibiting only
broad dissemination in commerce to the <i>public</i> in a manner that will serve as a
market substitute.</p>
<p>Further, because it does not tie the dissemination to the extractor, as requested in
our testimony, the Amendment retains the possibility that one who receives information
extracted from the protected collection (whether alone or as part of a new compilation
that draws from numerous sources) could be liable for further dissemination even if that
person had no idea that he or she was at risk. In short, the Amendment creates the spectre
of downstream <i>strict liability</i> for further dissemination. Liability should be
limited to extractors who make a prohibited collection available to the public in
commerce.</p>
<p>Our testimony expressed substantial doubts about the adoption of a prohibition based on
unlawful access or extraction alone, in light of the similarity of any such prohibition to
a right to control access to information <i>per se</i>. Since that testimony was
presented, the Administration has expressed the view that the only prohibition should be
against dissemination in commerce. Further, the proponents&#146; testimony on March 18
provided no evidence that unlawful extraction or access was a real-world problem. Their
examples were wholly limited to cases of competitive and broad dissemination to the public
(e.g., through the Internet). The elimination of section 1402(b) remains our strong
preference.</p>
<p>Nevertheless, because the higher education associations indicated on March 18 a
willingness to compromise on this point, we remain willing to entertain a narrow
prohibition on extraction when that extraction occurs from unlawful access. However, as
our testimony made clear, that prohibition must be limited to &quot;<i>the primary market</i>&quot;
(in its plain English meaning, see point 3, below), and only when the misappropriation
will &quot;cause a substantial injury to the incentive necessary to undertake the
investment and effort of creation.&quot; Higher education testimony at 6. The Amendment
falls far short of this limited scope.</p>
<p>&nbsp;We are also pleased that the Amendment eliminates the concept of
&quot;qualitative&quot; substantiality. However, the essence of protected investment in
collection is quantitative. Higher education testimony at 8-9. This should be expressed in
section 1402 and in section 1403(c). Section 1403(c), which expressly exempts taking of
&quot;an individual item of information,&quot; carries a very dangerous negative
implication that any greater taking might qualify as &quot;substantial.&quot; The
implication that taking such a low quantum of a collection could lead to liability simply
is not appropriate in legislation that protects substantial investment in
&quot;industrious collection.&quot; The proper exclusion should be from making available
or extracting a &quot;quantitatively insubstantial&quot; part of a collection of
information.<b> </b></p>
<p>2. <i>Limiting Liability to the Misappropriation of Protected Investment Rather than
Information Itself</i>. As discussed in our testimony (at 7) the Act is intended to
protect the investment in collecting a collection of information. Any violation must be
tied to a misappropriation of that investment, rather than simply of material from a
protected collection. Higher education testimony at 9. This concept remains absent from
the Amendment. The Amendment also does not make clear that the Act is not intended to
protect facts, ideas or information <i>per se</i>, but rather the investment in
collection.</p>
<p>3. <i>Markets and Market Harm</i>. Our testimony makes clear that, in limiting its
protection to that conduct which destroys the incentive to invest, traditional
misappropriation doctrine has directed its protection to &quot;the primary market.&quot;
We are pleased to note that the Amendment adopts this important terminology.
Unfortunately, although the Amendment uses the right term, it adopts a definition that
departs far from the term&#146;s plain English meaning. The &quot;primary market&quot;
(note the use of the definite article) simply is not &quot;any market from which a person
. . . derives substantial revenue.&quot; While the higher education associations are
willing to accept some broadening of the scope of protected markets in section 1402(a),
any such concept should be limited to markets that do account or demonstrably will account
for a substantial <i>percentage</i> of the revenue for a collection, rather than just
substantial revenue <i>per se,</i> and should further be balanced by a clear harm standard
that limits liability to circumstances where the dissemination serves as a market
substitute. The market substitute standard ensures that the bill focuses on conduct that
destroys the incentive to invest, the protection of which is understood to be the primary
goal of this legislation. Further, any prohibition that goes beyond public dissemination
to impose liability for unlawfully accessed extraction should be limited to <i>the primary
market</i> in its traditional plain English sense, as stated in our testimony.</p>
<p>We view the introduction of the term &quot;material&quot; to the standard of harm as a
potentially significant improvement. However, &quot;materiality&quot; is a relative term
that requires context. We are hopeful that the intended meaning is &quot;material&quot; in
light of the purpose of the Act to prevent the incentive to invest from being destroyed.
In light of the fundamental importance of the harm standard, that meaning should be
clarified in the in the text of the legislation. The concept of materiality also needs to
be added to subsection 1403(b).</p>
<p>4. <i>The Definition of Protected Collections</i>. The higher education associations
appreciate the amendment that makes clear that works of narrative literary prose are not
protected &quot;collections of information.&quot; However, this offers only part of the
necessary clarification. As argued in our testimony, the definition should exclude works
that are &quot;combined and ordered in a logical progression or other meaningful way in
order to tell a story, communicate a message, represent something or achieve a
result.&quot; Higher education testimony at 8.&nbsp;</p>
<p>5. <i>The Reasonable Use and Academic Exceptions</i>. We recognize and appreciate the
substantial improvements in the &quot;reasonable uses&quot; exemption, and appreciate as
well the exemption for scientific and academic activity. We continue to evaluate these in
light of the new language and the still-broad scope of the prohibitions. In general we
maintain the view, also expressed by the Administration, that nothing in this legislation
should interfere or threaten to interfere with legitimate customary or traditional
scientific and educational activities.</p>
<p>6. <i>Other Issues</i>. We are aware of issues raised by the scientific and library
communities which we believe warrant further consideration, and, as noted above, we hope
to provide a fuller set of comments addressing additional issues raised by the Amendment
in the near future. For now, we note continuing concern with (i) the absence of any
protection against unreasonable market power from compilations that are not readily
available from competitive sources, including the absence of a misuse defense, (ii) the
absence of any protection for institutions functioning as service providers, particularly
in light of the prohibition against &quot;making available to others,&quot; (iii) what we
understand to be the inadvertent continued prospect of criminal liability for institutions
(as opposed to agents or employees), (iv) the continued absence of a clear exemption akin
to the section 110(1) and 110(2) exemptions for teaching activities, and (v) the need to
expand certain limitations on monetary damages to protect against any civil or criminal
liability. We also note our concern with new language that confuses the verification
exemption in subsection 1403(e).</p>
<p>We commend your leadership in working with all interested parties to achieve a
balanced, effective outcome to this legislative process. We are most grateful for the
consideration you have given our views, and we look forward to continuing to work with you
to produce legislation that provides appropriate protection for databases while preserving
access to public domain data that make up those databases. </p>
<blockquote>
<blockquote>
<blockquote>
<blockquote>
<blockquote>
<blockquote>
<p>Sincerely,</p>
<blockquote>
<blockquote>
<blockquote>
<blockquote>
<p>&nbsp;</p>
</blockquote>
</blockquote>
</blockquote>
</blockquote>
<p>John C. Vaughn</p>
<p>Executive Vice President</p>
</blockquote>
</blockquote>
</blockquote>
</blockquote>
</blockquote>
</blockquote>
<p>&nbsp;<font SIZE="3"></p>
<p>cc: The Honorable Henry J. Hyde<br>
Chairman<br>
Committee on the Judiciary<br>
U.S. House of Representatives<br>
2138 Rayburn House Office Building<br>
Washington, DC 20515</p>
<p>The Honorable John Conyers, Jr.<br>
Ranking Minority Member<br>
Committee on the Judiciary <br>
U.S. House of Representatives<br>
2426 Rayburn House Office Building<br>
Washington, DC 20515</p>
<p>Laila Van Eyck, Assistant Director, Federal Relations-Higher Education,<br>
National Association of State Universities and Land-Grant Colleges</p>
<p>Sheldon E. Steinbach, Vice President and General Counsel, American Council on Education</font></p>
<p align="left"><font size="2"><em>For additional information on Federal Relations contact
Jerold Roschwalb in the Office of Federal Relations -- Higher Education 202/478-6025, fax
202-478-6046, or click here to e-mail: <a href="mailto:jroschwalb@nasulgc.org">jroschwalb@nasulgc.org</a><br>
<br>
</em></font><img src="RWB_LINE.gif" width="600" height="10"> </p>
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