A Battle Years In The Making
     For years, the principal parties debating the issue were the database manufacturers propelling the legislation and the librarians and scientists opposing it. Companies like McGraw-Hill, Reed Elsevier, and Thompson Corp. argued that the Supreme Court's 1991 Feist decision invalidated copyrights for their painstaking arrangement of data and subjected them to database piracy. But librarians and researchers countered that a similar bill Coble introduced in 1997 would imperil the scientific process by locking up facts with copyright-like legal protections.
     That dynamics of the battle began to change in late 1998, as Web-based businesses woke up to the reality that such legislation might imperil their use of and access to crucial market data and telecommunications information. Information-intensive Web brokers and telecommunications companies — more accustomed to working with the House Commerce Committee than the House Judiciary Committee — began to take notice.
     "We were asleep at the switch," said Greg Babiek of Bloomberg. "It was only after a worse form of this bill passed the House twice, under suspension of rules, that commercial interests began to look at it. We read though this and we said, 'we have trouble in River City.'"
     After failing to get assurances that their concerns would be addressed by the House Judiciary Committee, Babiek said, the groups approached Commerce Committee Chairman Tom Bliley, R-VA, who subsequently introduced the Consumer and Investor Access to Information Act, H.R. 1858. Narrowly targeted to ban the wholesale duplication of someone else's database while still permitting individuals to take data and transform it into new uses, the bill also included guarantees that online brokers would have access to real-time and historical market data.
     Yahoo, the leading Web portal, raised an additional concern: the Internet provides a vast array of information from disparate sites that is useful to consumers only when aggregated in such a way that it can be compared.
     "Any type of information that is currently provided on the Internet could be jeopardized by an overly broad statute," said Mathew Rightmire, director of business development for Yahoo, in testimony before a House Commerce subcommittee considering H.R. 1858.
     Web sites that collect and compare low airline fares "could be considered a misappropriation" of data under H.R. 354, he said.

E-Businesses Step Up Lobbying
     Those very concerns have led a majority of the nine Web-based businesses in the NetCoalition to take a higher lobbying posture on the subject. In a Feb. 7 letter to congressional lawmakers, America Online, Amazon.com, ExciteAtHome, Inktomi, Lycos, and Yahoo argued against "overly broad protection for compilations of information." But the letter was not endorsed by coalition members DoubleClick, theglobe.com, and eBay.
     Defenders of H.R. 354 say that eBay's newfound vigor on the subject shows that the debate over database protection is between those who produce the data and those who use other people's data.
     "I don't believe that we can have it both ways," said Gail Littlejohn, vice president of government affairs for Reed Elsevier. "You can't expect Lexis-Nexis to build structured databases and then allow everyone else to capitalize on our investment" and still expect information to flow.
     She said that her company's data has been pirated at least twice in the past two months, and that current law gives them few remedies in court.
     "Take eBay as an example," Littlejohn continued. "Up until a few weeks ago, they were opposed to this legislation. You can shake your finger at this until you are pirated — and then you have this overwhelming realization that your whole business is at stake."
     EBay officials acknowledge as much, and said they would have preferred to stay out of the debate entirely. But their immediate reason for taking a stance on H.R. 354 is as controversial as the legislation itself. The Internet auctioneer claims to be the victim of data piracy, and has filed suit against Bidder's Edge, a Web business that trolls dozens of other auction sites and aggregates their goods and prices.
     But eBay says it suffers because Bidder's Edge — which conducts its searches without a permission — posts information about outdated auctions, resulting in customer complaints back to eBay.
     "If data pirates are allowed to steal, and not pay or have a license or access sites in a way that the producer of that data consents to, you are going to be left with dreck," said Brad Handler, eBay associate general counsel.
     Turning the argument about an open Internet on its head, Handler said that the Web "was not built on open access, but on a system of permissions" that lay out protocols for computer communications.
     But opponents of H.R. 354 said that it is eBay's attempt to block price comparison that is anticompetitive, not Bidder's Edge. They note that earlier this month the Justice Department announced it was investigating eBay for antitrust violations.
     "Congress ought to be considering legislation that protects consumers' ability to continue to price shop on the Internet, and should not be thinking about passing legislation that enables competitors to sue each other just because they provide a price-shopping experience," said Bliley spokeswoman Christina Gungel. "We shouldn't penalize innovation."
     Coble chief council Mitch Glazier warns that such an attitude may be self-defeating.
     Technology aggregators like Yahoo aren't supportive of H.R. 354 "because they haven't yet evolved into content companies," said Glazier, who is leaving the Courts and Intellectual Property subcommittee for the Recording Industry Association of America at the end of the month.
     "At this point in time, there are more users than producers in the high-tech world," Glazier said. But when that changes, he said, technology companies will "want a bill that is so strong that it would lock up every fact in the world."

- by Drew Clark