HR3261 - Database and Collections of Information Misappropriation Act

posted Mar 04, 2004
in Communication Ethics

Slashdot recently posted a panicky article about HR3261, the "Database and Collections of Information Misappropriation Act".

I read the proposed bill. Based on the Slashdot summary, especially the phrase "goes directly against the idea that nobody can own a fact", I was hoping to be able to perform a bit of judo on the legal system. If ownership of the database implied ownership of the facts within, then we could all form a corporation and give it our privacy-sensitive information (links to definition of this term) like our address and phone number, then sue people who use them against our will. We might have had some hoops to jump through (incorporating, meeting the creativity standard), but it probably could have been managed.

But having read the bill, I now see this is impossible. In fact, I now think this bill would be a non-issue if it passed, because of the following clause:

Section 4(a): INDEPENDENTLY GENERATED OR GATHERED INFORMATION- This Act shall not restrict any person from independently generating or gathering information obtained by means other than extracting it from a database generated, gathered, or maintained by another person and making that information available in commerce.

That clause, if I'm reading the bill correctly, explicitly limits the bill to the case where somebody has a database online, and you use an automated process to suck the contents down and call it your own. Independent derivation of the facts in the database, and even use of the facts that falls below the "quantitatively substantial part of the information in a database" standard as defined in Section 3(a), is not covered by this act. Thus, the company's ownership of addresses and phone numbers would do nothing to stop other people from having their own indepedently-derived databases containing these facts, with no way of restricting use of those facts.

Thus, I do not see this bill as an communication ethics problem. It's a practical bill, recognizing the real-world cost of having a database downloaded (costing the owner money), and subsequent harm caused by the act. If the cost of downloading the entire database against the will of the owner were zero, we might need to consider the ethics more deeply, but as a "hostile" download of the database itself causes real harm, we really need not dig much deeper.

There are still some questionable clauses, such as the news reporting clause:

Section 4(d): NEWS REPORTING- Nothing in this Act shall restrict any person from making available in commerce information for the primary purpose of news reporting, including news and sports gathering, dissemination, and comment, unless the information is time sensitive and has been gathered by a news reporting entity, and making available in commerce the information is part of a consistent pattern engaged in for the purpose of direct competition.

Which engages in dubious limitations of speech for the purpose of protecting sports scores, but it does at least have the virtue of being fairly tightly limited and even with my fertile imagination I have a hard time seeing how this can be applied outside that narrow field.

I am somewhat disappointed that my "Privacy Protection Company" idea won't work, but at least this bill is nothing to really worry about. In fact, with the understanding that I don't consider it perfect as is, I'd say something like it would largely be a good thing.

Hey, look, an Intellectual Property posting... guess it's not completely out of my system.

 

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