- The Washington Times - Sunday, February 29, 2004

You don’t hear much about database piracy in the news. There is not a Napster of database piracy, and trade organizations aren’t engaged in clash-of-the-generations litigation with database pirates. The reason you don’t hear much about database piracy is not because databases and their creators aren’t important. In fact, the people who collect and organize portions of the vast expanse of information that pervades our society are at the very core of the information economy. Without databases, and those who create and maintain them, we would have to wade through dozens, hundreds or thousands of sources in order to get the medical information, laws, economic details and other facts and data that are now available at the touch of a button.

The reason that you don’t hear about database piracy is that for the most part it isn’t considered piracy at all. In the United States, database piracy is generally not even against the law.

This is a major gap in our intellectual-property laws. There is no serious dispute that intellectual-property laws — such as patent and copyright — are the engine of creation and invention. While reasonable people may therefore disagree about the scope of protection that should exist under the copyright and patent laws, no one seriously disputes that our intellectual property laws play an essential role in encouraging the investment of time and money in protected works and inventions in the first place.

But ever since 1991, when the Supreme Court held that the underlying facts in a database may not be copyrighted at all, database creators have enjoyed little or no intellectual property protection in the creation and maintenance of even the most comprehensive, commercially valuable and publicly useful databases.

Under current law, a compilation of facts — the essence of a database — is protected only to the extent that the selection or arrangement of the facts is sufficiently “original.” As a result, the most useful databases often enjoy the least protection: A database that is comprehensive (showing less originality in the “selection” of facts) or organized in a logical way (showing less originality in the “arrangement” of the facts) is often effectively unprotected.

Ever since 1991, database providers have been consistently stymied in their efforts to prevent competitors from free riding on their massive investments and creating competing products simply by copying tremendous portions of the database creators’ work. For example, the publisher of an exhaustive directory of cable systems could not prevent a competitor from simply incorporating the contents of its directory into the competitors’ product.

In another case, a service that compiled data about public schools could not prevent a competitor from harvesting most of the topics of the database to create a competing service. Yet, in a world in which verbatim copying of databases is allowed, why would anyone spend thousands or even millions of dollars assembling a database? And, think of how much more investment might be spurred in creating valuable databases if we could assure the creators that others would not simply turn around and free ride on their hard work and investment.

The risk that others will free ride on the efforts of those who create and maintain databases, moreover, has grown in recent years. Today, with virtually all resources available in digital form (or easily convertible to digital form), it takes only a few keystrokes for a competitortoextractand repackage most, if not all, of the information supplied by another person’s database, without ever setting foot into the field to gather the facts in the first place. Most people would consider that unfair exploitation. But under the current state of the law, it is allowed.

In short, the law does not now provide sufficient protection to the comprehensive and commercially and publicly useful databases that are at the heart of the information economy. Right now, Congress is contemplating legislation that would fill that gap: H.R. 3261, the Database and Collections of Information Misappropriation Act, would prohibit someone from taking a substantial part of someone else’s database and making it commercially available in a way that causes economic harm to the original database producer. This legislation would stimulate innovation and invention, protect investment and encourage the free flow of information — exactly what is needed to ensure that the information economy blossoms to its fullest potential.

Former White House Counsel C. Boyden Gray is a partner at Wilmer, Cutler and Pickering. Jamie Gorelick, former general counsel for the Defense Department, is a partner at Wilmer, Cutler and Pickering.

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