"Back to Database Protection Page"
October 31, 1997
The Honorable Howard Coble
Chairman, Subcommittee on Courts and Intellectual Property
United States House of Representatives
B351A Rayburn HOB
Washington, DC 20515
Dear Chairman Coble:
I am requesting that the statement that I distributed at your October 23, 1997 hearing on H.R. 2552, the "Collections of Information Antipiracy Act", be included in the published proceedings for the hearing.
As you recall, you read the first three paragraphs of my statement into the record -- and I thank you for bringing to the attention of the public my concerns that Thomson/West and Reed Elsevier/Lexis are manipulating your Subcommittee to protect their monopoly control over authoritative and citable court opinions and for mentioning the secret agreements signed in 1988 when West and Lexis settled their litigation.
However, you then said that my statement was "inaccurate", according to the October 27, 1997, BNA Management Briefing. I respectively disagree. The rest of my statement provided ample substantiation for what I wrote in the first three paragraphs.
Accordingly, I believe that is only proper that my entire statement be included in the record of the hearing, so that my statements not be taken out of context, and so that my detailed explanation concerning the section you read be available to anyone reading the hearing and seeing your comments. Having had my views be so negatively characterized by you, I believe it only appropriate that I have the opportunity to be heard at the next hearing, and hereby so request.
Moreover, I thank you for finally clarifying that there will be an additional hearing in January -- we were unable to obtain any such commitment from your staff prior to the hearing. My statements about fasttrack legislation were fully justified by the fact that the bill, which contained novel language, was introduced on October 10 and that hearings were held only 13 days later, without any opportunity afforded to those in the private sector opposing the pro-bill witnesses.
For example, Warren Publishing, as a representative of the Thomson funded Coalition Against Database Piracy, testified at the hearing and provided a one-sided view of their litigation against Microdos Data Corp., a view incidentally rejected by the courts. It is completely unfair to provide a forum to Warren without providing a similar forum to Microdos. Similarly, you provided a forum to Laura Tyson, a consultant paid for by Thomson and Reed-Elsevier, to argue for their attempt to nullify the litigation now on appeal in the United States Court of Appeals for the Second Circuit between our company and Matthew Bender & Company against Thomson with whom Reed Elsevier has sided. But you provided no opportunity for those on the other side to express their views. This is unjust.
It also did not help that the Copyright Office was in such haste to circulate its report, that it did not circulate a draft for informed comment, or bother to hold a public hearing. Indeed, the report indicates that the meetings it did hold were not open to the public, and that each "side" was able to meet privately with the Copyright Office.
Others testifying and submitting statements explicitly pointed out the lack of any demonstrated need for the bill. If there is not a demonstrated need for the bill, and if the major consistent pressure for this legislation comes from Thomson/West and Reed Elsevier and the organizations that front for them, then it is completely legitimate for me to claim that this is special purpose legislation for Thomson and Reed Elsevier. This lobbying effort is nothing more than a more sophisticated replay of the 1995 Paperwork Reduction Act fiasco.
Moreover, I very much object to the Coalition Against Database Privacy, which fronts for West and Thomson, being given its own showroom on October 23 in Room 2105 in the Rayburn Building to provide a demonstration of databases which was no more than a propaganda display for the bill. Do you believe it would be possible for those opposing the bill to be permitted to use the same room while Congress is in session to present its views?
The BNA article also includes your quotation that you took "umbrage at what is written."
I am sorry you feel that way. But similarly, many Americans are greatly disappointed because your Subcommittee, which has jurisdiction over the federal courts, has repeatedly ignored requests to investigate the failure of the federal courts to establish a public domain citation and to disseminate authoritative and citable court opinions -- indeed, I asked this committee to conduct such hearings in 1992. See 1992 Hearing, Infra., note 9.
In 1997 there is no justification for the federal district courts' refusal to make the electronic version of their opinions available to the public -- only two or three of the federal district courts make their court opinions available to the public. Does this not make one curious, when a busy court, the Eastern District of Pennsylvania, can meet its public service obligations, but other district courts cannot? The American people, such as the overwhelming number of ordinary citizens who wrote to oppose that database treaty and who wrote to support a public domain citation, demand an explanation.
Similarly, I note that in 1992 when I submitted a statement to this Subcommittee concerning the copyright of citations, I warned the Subcommittee that the West Devitt cash award paid to members of the federal judiciary was inappropriate. My complaint was ignored -- but three years later the Minneapolis Star Tribune researched a story concerning this award, which story was of great embarrassment to the federal courts. See Hearing Before the Subcommittee on Intellectual Property and Judicial Administration of the Committee on the Judiciary, 102 Congress, Second Session, on H.R. 4426, "Exclusion of Copyright Protection for Certain Legal Compilations", May 14, 1992, Serial No. 105 (the "1992 Hearing"), Statement of Alan D. Sugarman, p. 328, note 10.
The problem with the database bill is that it provides to publishers of databases of governmental information (such as federal court opinions) the incentive to lobby the sources of the governmental information (this Subcommittee and the federal courts) in ways that will keep the government from properly disseminating the information. Clearly, this is the present situation today with court opinions and would provide an explanation why this committee as well as the courts will not address the issue.
I do not think the American people will accept a bill from a subcommittee that provides permanent copyright-like protection to the case law of our country, while the courts and the same subcommittee with oversight over the courts procrastinates and delays in doing what needs to be done to make presently existing electronic information available to the public that paid for it..
How can this Subcommittee deliberate on a bill that will provide copyright like protection to the opinions of the federal courts, and at the same time refuse to address the failures of the courts in the citation and dissemination of their court opinions?
Sincerely,
Alan D. Sugarman
President
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