U.S. Congress Threatens to Establish a New Kind of Monopoly

Companies that want monopoly powers to control public use of the information we get from data bases are trying to pass a law this year in the U.S.—creating, for the first time, a private monopoly over repeating publicly known information. They are using the “good bill, bad bill” method; the “bad” bill is HR 354; the “good” bill is HR 1858.

This method should be familiar. First, one legislator introduces an outrageous bill, one that would give a large handout of money or power to certain special interests and serves no legitimate public purpose. This inspires a chorus of opposition from other special interests that the bill would trample.

So a second legislator introduces a more cautious bill, more clearly written, with some safeguards, avoiding some gross abuses, offering a smaller handout to a somewhat broader spectrum of special interests—and still diminishing the public treasury or the public's freedom.

The second bill is typically praised for its “balanced” approach, and interest groups that might oppose the general idea feel obliged to support it, to make sure that the even worse first bill won't pass. With little opposition remaining, the second bill passes, and society takes one step for the worse.

A few years later, the first legislator may propose another give-away. If we keep meeting his sponsors half-way each time, over time they can get as much as they like.

This time, the “bad” bill is HR 354, which would effectively allow facts to become private property, simply through their inclusion in an electronic data base. Even mentioning more than a handful of the facts from any data base in a publication would be illegal, unless you could get them from some other source—often impossible, since in many cases there is no other ultimate source for a certain kind of fact.

Consider for example the scores of professional sports games. The score is counted in a computer, whose memory counts as a data base. Under HR 354, regularly printing scores in a newspaper would become illegal.

HR 354 would probably give Network Solutions a permanent monopoly on the Internet domain name data base, making any change in the handling of top level domains impossible.

Any computer program counts as a data base under HR 354. So if the facts about the program's user interface and APIs can't be obtained from anywhere else, any compatible program would be prohibited. This would be devastating for the future of free software.

Ominously, many collections of public records, maintained by companies on contract to governments, would become property of those companies.

And West Publishing Company would regain its effective monopoly over the data needed to file a legal brief in much of the U.S. West maintains a data base of court decisions, and some courts require briefs to cite these decisions using page numbers as they appear in West's data base.

West, seeking to prevent the necessary information from being available other than through their expensive service, used to claim that the pagination and page numbers were copyrighted, but a Federal court ruled against them. The court said that these page numbers don't result from creativity, so they are not copyrightable. But they are indubitably a data base, so HR 354 would prohibit anyone else from providing this data to the public—thus granting West a permanent monopoly on the law itself.

HR 354 would also interfere with scientific research, genealogical research, publication of stock prices, and many other areas of life and work. So it's no wonder that it has generated strong opposition. The Supreme Court might reject the bill as unconstitutional, but no one wants to rely on this. Hence HR 1858—this year's “good” bill.

HR 1858 explicitly avoids most of the outrageous problems. It establishes a narrower kind of monopoly, permitting use of the facts in a different kind of data base, or in anything other than an electronic data base.

Thus, you'll still be able to print game scores in an article, because an article doesn't count as a data base. A program is not a data base either, under HR 1858, so it will not create a new obstacle to writing compatible software.

HR 1858 also excludes data bases for running the Internet. (But not the data bases that may some day be used for running future worldwide systems, even if they are just as important as the Internet is today.) It excludes data bases made by or for the Federal government. (But, by default, it doesn't exclude those made by or for state governments; this is a substantial loophole in HR 1858.)

A wide range of organizations are supporting HR 1858—including many universities and professional organizations. Some of the letters of support show a clear desire for some kind of monopoly power.

HR 1858 is much less harmful than HR 354—if we have to choose between the two, we should prefer HR 1858. But should we have to choose between a big loss of freedom and a smaller one?

The advocates of these laws offer a reason, of course, for their proposal to limit our freedom. They say that nobody will maintain data bases without a monopoly over the contents. They have no specific evidence for this claim; it is based on an article of faith: a general assumption that nobody will do anything without a monopoly over the results.

Just a few years ago, people said the same thing about software—that nobody would write programs without having a monopoly on them. The Free Software movement has proved that this is not true, and in the process, we have refuted that general assumption. Selfishness is not the whole of human nature. One kind of intellectual work, at least, CAN be done without a monopoly on the results.

But data bases are not software. Will anyone develop data bases without a data base monopoly law?

We know they will—because they already do. Many electronic data bases are available now, and the number is increasing, not decreasing. And many kinds of data base are byproducts or even preconditions of other activities that people do for other reasons.

The data base companies can't deny this, so they threaten us with future uncertainty. “Maybe we do this today, but ten years from now nobody will do it any more, unless you give us special privilege.”

We don't know what will happen in ten years; neither do they. The economic situation of the Internet is changing rapidly, and no one knows where it is going. Perhaps, in 2009, commercial data bases will disappear from the Internet. Or perhaps they will be very successful. Perhaps networks of volunteers will maintain all the data bases anyone might want. Perhaps advertising will provide a comfortable source of revenue to any company that maintains a data base; perhaps a much weaker law saying “If you redistribute our data base, you must redistribute our ads too” would serve their interests almost as well. Nobody knows.

What we do know is that things will change; if a data base law is passed this year, it will be obsolete a few years from now. But any attempt to abolish it will be opposed by the data base companies, which will protect their privileges by predicting the sky would fall without them. They will say: “We exist, so the law must be working.”

It is folly, or worse, to lock in a restrictive policy this year, to solve a problem whose existence is just speculation. A data base monopoly will take away your freedom, it's a surrender to special interests, it's hasty, and there is no clear public need for it. We should instead let the Internet mature, and see what problems really need to be solved.

So if you are a U.S. voter, write your Congressman now. Say that if he or she has a chance to vote on whether the data base bill should be like HR 354 or HR 1858, to choose HR 1858. But then say, when the data base legislation ultimately comes up for a vote, to vote against it, whatever it says.

I've written a sample letter that you can use, but remember that your letter will carry more weight if you write in your own words. Send your letter on paper; e-mail does not impress legislators, because they know how easy it is to send. Be polite, but not timid, and try to keep it under 20 lines. Please email your letter to <[email protected]> also.

Dear Representative So-and-so,

Congress is considering laws to establish a new kind of monopoly on electronic data bases. I am against the whole idea of this, because it would restrict the freedom of computer users. Private interests should not be allowed control over dissemination of facts that are public knowledge. As a measure to promote business, this is premature; the Internet is changing very fast, and passing any law about this issue in 1999 would be foolish.

Multiple alternatives are being considered for this bill; HR 354 is especially drastic and dangerous, while HR 1858 is less so. If you have a chance to vote on the choice between them, please choose HR 1858. But when the data base monopoly bill ultimately comes up for a vote, I ask you to vote against it, regardless of the details.

Sincerely,
Jane Q. Public

There exists a list of senators and a service to assist you in writing to representative in the U.S. Congress [archived].