Property rights at heart of new US war on data ownership

DATABASES: The internet is redefining the notion of theft. Digital technologies have provoked a battle over the ownership of creative material in the worlds of music and film. But at the same time a less visible but equally important fight is going on over the ownership of facts.

The internet has vastly boosted the market for data: naked facts, information in its purest form, the raw materials of creation. So, predictably, those who possess facts, from big database publishers to tiny websites, are fighting for the legal right to stop others from stealing "their" data.

Those who use those data to create new things, from scientific inventions to new commercial services on the Web, are battling to ensure that naked facts stay largely in the public domain.

The result is a profound debate about property in the information age and an ugly battle in the legislature and the courts over public and private rights to intellectual property.

The debate is part of a wider argument over intellectual property rights. Over the past two decades, intellectual property rights have been steadily extended: the term of copyrights has lengthened, and patents have been extended to cover such "inventions" as business methods, which would previously have been unpatentable.

Advocates of a strong public right of access to ideas and information see this as an erosion of the public domain and say introducing property rights over raw data would exacerbate that trend.

But database providers counter that they have spent a lot of time and effort compiling facts and they should be able to protect their investment. If they cannot, they say, they will have no incentive to create these resources in future.

At the moment, the rights of database providers are tightly circumscribed by a 1991 US Supreme Court ruling, which says that raw facts in a database cannot be owned and protected under copyright law.

That case, Feist v Rural Telephone Service Co, hinged on information in a telephone directory that a rival company copied to include in its own phone book. The justices ruled that there was nothing illegal involved, since the phone book information was public and had not been compiled in an original format.

Since that ruling, databases composed of plain facts have been wide open to pilfering, database companies say. Led by big publishers such as Reed Elsevier, database providers have fought to extend federal copyright protection to databases, and for other legislative ways to get around the Feist ruling.

Two competing bills were introduced in the last Congress to strengthen the private right to raw data in compilation. For the past few months, members of two separate committees of the House of Representatives have been trying to negotiate a compromise.

They remain far apart and it seems unlikely that consensus legislation will be introduced this year. But database providers are also trying other avenues to establish what amounts to a private right to raw data: they have brought a number of cases in the courts (claiming either violation of the federal Computer Fraud and Abuse Act, contract violation or trespass) and have won several victories.

One celebrated case involved eBay, the giant online auction site, and Bidder's Edge, a tiny shopping "bot" that collected information about what was being auctioned anywhere online and made that information available in one place. Purchases had to be done on the auction company's own site but Bidder's Edge made it possible to search quickly for the desired item on several auction sites at once.

A California district court found Bidder's Edge had trespassed on eBay's site to collect that information. Bidder's Edge went out of business before the preliminary injunction could be appealed against.

In another closely watched case, a federal judge ordered a web-hosting company to stop accessing the database of an internet domain name registration service and using that information for marketing purposes. The case involved the Whois database, maintained by Register.com, a register of domain names. An appellate decision is expected soon.

Advocates of the public domain say they are concerned by such efforts to establish what amounts, either covertly or overtly, to a property right over the naked facts that are the raw material of science and the building blocks of American economic success.

"A thousand years from now when historians and archaeologists are pondering the decline and fall of the West, they can date it to the Database Protection Act," says Jerry Reichman of Duke University Law School, referring to the working title of the legislation in Congress. Database providers disagree, saying even that legislation would include exceptions for scientific research.

Most of the protagonists even most advocates of the public domain agree that databases should be protected against wholesale theft.

But it is far more difficult, legal scholars say, to decide cases like that of Bidder's Edge, where the facts are taken but transformed into something new and useful to consumers.

The question "Who should own the facts?" is not a simple one. New technologies have challenged old law on this subject. Courts and legislatures now face the difficult task of deciding how the one must adapt to the other.