No one should be able to own facts about other people. Our names and numbers, and the laws we must obey, should not be property that can be owned by corporations and policed by federal courts.
But special interests, such as the Software and Information Industry Association, are seeking new powers to own facts about us and about information we need. After quietly shopping a bill to members of Congress for several weeks, the Database and Collections of Information Misappropriation Act was finally introduced in October as H.R. 3261.
The U.S. Constitution authorizes Congress to create copyrights. But your name, address and telephone number are facts that cannot be copyrighted. So said the Supreme Court in 1991 when it ruled that no one can copyright the telephone book.
The Constitution authorizes copyright protection for "authors." The Court ruled in Feist Publications Inc. vs. Rural Telephone Service Co. that a collection of facts lacks sufficient creativity to constitute authorship.
H.R. 3261 doesn't use the word copyright, but it would create a new federal property right in online and offline databases (collections of information), and give the federal courts power to police the use of information in databases.
Granting large U.S. and foreign corporations the power to own personal facts about individuals, and prevent others from using those facts, would be the most lucrative handout in years.
H.R. 3261 would allow federal courts to impose stiff penalties if someone uses information from a database that a corporation claims to own. The exceptions to this rule are vague and subject to contrary interpretations, leaving users liable to a lawsuit in which it is up to a federal judge to decide what is "reasonable."
Over the past decade, without federal legislation or judicial supervision, databases have grown rapidly in size and number. Today, there are giant databases containing our travel plans, our medical records, our telephone calls, our credit card usage and even the Web sites we visit. This collections of information bill would chill productive activity because few users of data can afford taking a chance on how a court might rule.
Prominent groups from across the political spectrum vigorously oppose this bill. The U.S. Chamber of Commerce says the legislation could even prevent people from using data found in books checked out of libraries.
Peter Veeck felt the brunt of the corporate police. When he posted on his Web site the municipal building safety codes that everyone is required to obey, he was sued by a company that claimed to own the building codes.
In 2002, after long and costly litigation, Veeck won his case, Veeck vs. Southern Building Code Congress International Inc. Judge Edith Jones wrote for the 5th Circuit Court en banc: "Citizens may reproduce copies of the law for many purposes, not only to guide their actions but to influence future legislation, educate their neighborhood association, or simply to amuse."
On the last day of the U.S. Supreme Court term in June, the justices allowed Veeck's victory to stand.
But special interests still want Congress to allow corporations to exercise exclusive ownership over collections of facts. These same special interests failed to pass a similar measure called the Collections of Information Anti-Piracy bill in 1998. They are trying again with H.R. 3261 to get from Congress what they could not win in the courts.
The jackpot may be in medical databases, which are still largely secret. The next time you want an itemization of why a brief hospital stay costs far more than the most luxurious hotel, remember that medical procedure codes and reimbursement rates are not freely published.
The American Medical Association claims to own these federally required codes, reaping tens of millions of dollars in royalty fees from them. You can go on the Internet and find the price of almost anything, from a plane ticket to an automobile, but the AMA will sue anyone who dares to post the billing codes and rates for simple medical procedures.
Giving new powers to the federal courts to police the use and exchange of information collected in databases would have a negative effect on an already shaky economy. What's more, creating federally mandated ownership of data is the wrong way to go if we still believe in free enterprise.
Nor is H.R. 3261 the right way to go if we believe that the federal government should exercise only enumerated powers. It's clear the Constitution does not authorize Congress to create property rights beyond those specified in the Copyright Clause.