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
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
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
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
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
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
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
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
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
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
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.
Jane Q. Public
There exists a
list of senators and a service to
assist you in writing to representative in the U.S. Congress.