EFFector Online Newsletter
Vol. 11, No. 4, May 4, 1998 editor@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
IN THIS ISSUE
* IMMEDIATE ACTION ALERT, APRIL 5 DEADLINE: CONTACT REPRESENTATIVES
TO OPPOSE DATABASE BILL
1. SUMMARY
2. IMMEDIATE ACTION TO TAKE
3. SAMPLE PHONE "SCRIPT" & SAMPLE FAX
4. BACKGROUND
* EFF SUES TO OVERTURN NEW MEXICO NET CENSORSHIP LAW
* ADMINISTRIVIA
See http://www.eff.org for more information on EFF activities &
alerts!
_________________________________________________________________
IMMEDIATE ACTION ALERT, MAY 5 DEADLINE
CONTACT REPRESENTATIVES TO OPPOSE DATABASE BILL
The Electronic Frontier Foundation May 4, 1998
Please distribute widely to appropriate forums, no later than May 15,
1998.
1. SUMMARY
* Latest News:
House "Collections of Information Antipiracy" bill would create a
new property right in databases and make criminal many uses of
uncopyrightable public-domain information without express
permission from a database supplier. Bill is on fast-track in the
House and dangerously close to passage!
* What You Can Do Now:
Follow the directions below and call/fax your own Representatives
Ask them to oppose expansion of rights to database holders without
clear proof that additional protections are needed and without
explicit explanation of how fair use will be protected. Explain
that no new legislation is needed, and that this bill in
particular is an assault on the rights of all citizens.
2. IMMEDIATE ACTION TO TAKE
Free speech supporters are asked to IMMEDIATELY contact their own
Representatives, as well as House leaders, and ask them to to vote
against the database bill, H.R. 2652, expected to pass or fail on the
House floor on May 5, 1998. This contact shouldn't take more than TWO
MINUTES per office.
Urge your Representatives to refrain from voting away your right to
know and use plain facts because some companies demand special
privileges to control and charge for the use of information.
Feel free to make use of the sample fax and phone "script" below.
(We regret that some readers, due to Net-related delays or for other
reasons, may not receive this alert in time to act. Sometimes Congress
moves quickly, and we have insufficient warning to issue an alert
early enough for all readers to receive it in time.)
LOOKING UP YOUR REPRESENTATIVE'S CONTACT INFO
See EFF's Contacting Congress factsheet at http://www.eff.org/congress
which provides links to places to look up who your legislator is if
necessary, and to obtain their phone and fax numbers. Please PHONE
first, FAX second. Time is short enough that some of the faxes may
simply not make it in time.
If you can spare a few extra minutes, try working your way down this
list of House leadership, as well as contacting your own Rep:
Party Last Name, First Name Voice Phone Fax
State/Dist
-----------------------------------------------------------------
R GA/06 Gingrich, Newt 1-202-225-4501 1-202-225-4656+
R TX/26 Armey, Richard 1-202-225-7772 1-202-226-8100+
D MO/03 Gephardt, Richard 1-202-225-2671 1-202-225-7452+
R TX/22 DeLay, Tom 1-202-225-5951 1-202-225-5241
D MI/10 Bonior, David 1-202-225-2106 1-202-226-1169
R OH/08 Boehner, John 1-202-225-6205 1-202-225-0704
R CA/47 Cox, Christopher 1-202-225-5611 1-202-225-9177
D CA/03 Fazio, Vic 1-202-225-5716 1-202-225-5141
D MD/05 Hoyer, Steny 1-202-225-4131 1-202-225-4300
(+ These are the most important to contact - call/fax them first.)
House leaders are, respectively: Speaker, Majority Leader, Minority
Leader, Maj. Whip, Min. Whip, Republican Conference Chair, Rep. Policy
Committee Chair, Democratic Caucus Chair, Dem. Steering Cmte. Chair
3. SAMPLE PHONE "SCRIPT" & SAMPLE FAX
If you would like to both call, and send a fax, this extra action
would certainly help.
For best results, try to put this in your own (short!) words, and be
calmly emotive without being hostile.
IF YOU ARE A CONSTITUENT (i.e., you live in the same district as the
Rep. you are contacting) make sure to say so. For example "I am a
constituent, and I'm calling/writing because...."
IF YOU REPRESENT A COMPANY OR ORGANIZATION, say so: "I'm Jane Person
from Personal Technologies Inc. of Austin. I'm calling on behalf of
Personal Technologies to ask the Representative to...." Business
interests carry a lot of weight with many legislators, especially if
they are in the legislator's home district. Legislators also generally
heed organizational voices over individiual ones. On this issue
especially, legislators needs to hear a commercial viewpoint OPPOSING
this bill.
PHONE "SCRIPT"
You: [ring ring]
Legislative staffer: Hello, Representative Lastname's office.
You: I'm calling to urge Representative Lastname to REJECT the
so-called "Collections of Information Antipiracy Act", H.R. 2652.
This bill is missing key definitions and creates new property
rights in databases and the raw data contained in them, at the
expense of ALL citizens' rights to know and use plain facts and
information. This bill threatens fair use and freedom of speech and
press. The database industry has not proven any need for this
legislation, and it is simply yet another attempt to extend
copyright-like protection to public-domain material that can't be
copyrighted. The bill is not responsive to WIPO treaty language and
it provides for excessive and injust penalties. There is no need
for this legislation, and I urge Representative Lastname to REJECT
H.R. 2652. Thank you.
Staffer: OK, thanks. [click]
It's that easy.
You can optionally ask to speak to the legislator's technology &
intellectual property staffer. You probably won't get to, but the
message may have more weight if you succeed. The staffer who first
answers the phone probably won't be the tech/i.p. staffer.
SAMPLE FAX
See above for how to get relevant Congressional fax numbers. Please,
if you have the time, write your own 1-3 paragraph letter in your own
words, rather than send a copy of this sample letter. (However,
sending a copy of the sample letter is far better than taking no
action!)
Dear Rep. Lastname:
I'm writing to urge you to reject the excessive intellectual
property protections for database maintainers as contained in H.R.
2652, the "Collections of Information Antipiracy Act." This bill,
while being touted as as a piece of antipiracy legislation,
actually makes most uses of pure information contained in a
database illegal without prior permission from the database
maintainer. The Act does not create useful exceptions for the fair
use of information, and key definitions of crucial terms, such as
"collection" and "substantial part" are missing. Furthermore the
penalties called for - up to $500,000 and 10 years in prison - are
excessive and injust.
The database industry is booming and is quite lucrative for
companies collecting and disseminating information. At present, the
law requires database collectors to add some originality to the
information collected before the collectors receive a legally
recognized property right in the database. H.R. 2652 would change
this, giving collectors property rights in raw information that has
traditionally and properly been in the public domain. This assault
on the public's fair use rights and freedom of speech and press
will have dire consequences for journalism, medicine, science,
political campaigning, and legal research. Additionally, the bill
is simply not responsive in any way to the requirements of recent
WIPO treaties. WIPO rejected such a "database giveaway".
The database industry has not demonstrated a clear need for this
legislation, and the public interest is harmed by giving these
companies additional rights to control plain facts and information.
H.R. 2652 represents an attempt by some information collection
owners to fortify their markets through manipulating the legal
system (instead of through fair competition and the addition of
value) by raising fears of electronic piracy of information over
the Internet and through new information technologies. Congress
should wait until specific and definable market failures become
apparent before acting to correct them, and even then not in a way
as broad and vague as that attempted in H.R. 2652.
Sincerely,
My Name Here
My Address Here
(Address is especially important if you want your letter to be taken
as a letter from an actual constituent.)
For brief tips on writing letters to Congress, see:
http://www.vote-smart.org/contact/contact.html The most important tip
is to BE POLITE AND BRIEF. Swearing will NOT help.
4. BACKGROUND
THE LATEST NEWS
H.R. 2652, the "Collections of Information Antipiracy Act" (introduced
by Rep. Howard Coble (R-NC), expands the rights of database creators
and maintainers, at the expense of YOUR rights to know and use plain
and available facts and information. The bill has been put on the fast
track, and is up for a "suspension rules" vote, by the entire House in
which it cannot be amendmed to fix its flaws (but can only pass with a
2/3 majority vote.) A lot of big money is behind this legislation, so
the danger of its passage is high.
The bill, the latest in a long series of efforts by certain commercial
interests to extend copyright-like protections to that which belongs
to the public and cannot be copyrighted, authorizes enormous civil and
criminal penalties (up to $250,000 and/or 5 years in prison for a
first offense; $500,000 and/or 10 years in prison for subsequent
convictions) against anyone who uses uncopyrightable, public domain
data collected in a database without the express consent of the
company that controls that database.
The Act, backed by major database maintainers such as Microsoft and
West Publishing, is designed to create a new crime against those who
extract or commercially use a "substantial part" of a collection of
information gathered, organized or maintained by another person
"through a substantial investment of money or other resources" so as
to harm the data collector's "actual or potential" market for a
product or service that incorporates that collection of information.
The main problem with the bill is that key terms are either not
defined or are poorly defined, leaving huge loopholes that render
literally all information, data, and facts vulnerable under the Act.
For example, even though the bill is titled the "Collections of
Information Antipiracy Act," the term "collection" is not defined.
"Substantial part" is not defined. And "information" is defined as
"facts, data, works of authorship, or any other intangible material
capable of being collected and organized in a systematic way," an
extremely broad definition that could include just about anything! The
legislation amounts to a roundabout form of censorship that could
severely harm journalism, medicine, scientific inquiry, academia,
consumer watchdogging, the Freedom of Information Act, and many other
areas and avenues of inquiry about and use of raw infomration.
Unfortunately, while Congress has been feeling intensifying pressure
from the database maintainers to pass this legislation, they have not
been hearing from those opposed to the bill. YOUR immediate action is
needed to stop it from passing the House.
_________________________________________________________________
EFF SUES TO OVERTURN NEW MEXICO NET CENSORSHIP LAW
April 22, 1998
Statement of Barry Steinhardt, President of the Electronic Frontier
Foundation (EFF) on the Legal Challenge to the New Mexico Net
Censorship Law.
The Electronic Frontier Foundation (EFF) believes that SB 127, New
Mexico's recently passed law banning the dissemination of material
deemed "harmful to minors" on the Internet, is patently
unconstitutional. This law represents a threat to freedom of
expression, not only in New Mexico, but across the country. The EFF,
as a content provider, and its members, would be compelled to either
refrain from communicating constitutionally protected speech or face
potential criminal prosecution. Because of this threat, we join today
as a plaintiff in the challenge filed today by the American Civil
Liberties Union (ACLU).
The EFF was the first national non-profit group established to protect
free expression, privacy and open access to information in the
electronic age and has used the Internet to educate the public about
civil liberties and legal issues as they arise in cyberspace. The EFF
was a party to the successful challenge to the Federal Communications
Decency Act (CDA) in Reno v. ACLU, decided by the US Supreme Court
only last June. We believe the New Mexico law is equally defective.
The EFF's public education efforts that would be affected include the
extensive online resources on its web site. These resources include
articles, court cases, legal papers, news releases, newsletters, and
excerpts from public discussions related to the EFF's legal,
legislative, educational, and advocacy work. Section A in SB 127, as
it affects the EFF, is even broader and more censorial that the CDA.
The term "harmful to a minor" is defined as any communication "which
in whole, or in part, depicts actual or simulated nudity, sexual
intercourse or any other sexual conduct." The Legislature did not even
attempt to qualify this term by requiring that the speech be viewed in
its overall context or that its value to minors or adults be taken
into account. Because the definitions used in SB 127 are so broad and
so unqualified, it would include everything from a web site's
representation of Michalangelo's David, to the publication of the
Biblical Song of Solomon on a newsgroup. It would certainly encompass
information in many of the archives that the EFF maintains on its web
site.
Language purporting to limit the application of the law to those who
"knowingly and intentionally initiate or engage in communication" with
a minor cannot save the law. For most speakers on the Internet, it is
not possible to limit speech to an audience that is known to be adults
only. Laws like SB 127, such as the even narrower CDA, will inevitably
and unconstitutionally restrict the speech available to adults, who
will be reduced to receiving only that speech which is deemed suitable
for children.
As the Supreme Court said in _Reno v. ACLU_:
"Given the size of the potential audience for most messages, in
the absence of a viable age verification process, the sender must
be charged with knowing that one or more minor will likely view it.
Knowledge that, for instance, one or more members of a 100-person
chat group will be minors and therefore that it would be a crime to
send the group and indecent message and would surely burden
communication among adults."
In addition to the restricting Constitutionally protected speech, SB
127 would also violate the Interstate Commerce Clause of the US
Constitution.
SB 127 is not limited to purely intrastate New Mexico communications.
It seeks to broadly regulate an inherently "interstate", even
international medium. A recent decision from New York, American
Library Ass'n. v. Pataki, 969 F.Supp. 160, 164 (S.D.N.Y. 1997) dealt
with the interstate commerce issue. The ALA case dealt with a New York
State statute that, like SB 127, sought to restrict speech on the
Internet that was "harmful to minors", without limiting the geographic
reach of its prohibition. In that decision, which the State of New
York did not appeal, the judge held that the law was invalid because
it was an "unconstitutional projection of New York law into conduct
that occurs wholly outside New York; that the burdens on interstate
commerce [by enforcement of this law] ... could paralyze development
of the Internet altogether; and finally, that the Commerce Clause
ordains that only Congress can legislate in this area, subject, of
course, to whatever limitations other provisions of the Constitution
(such as the First Amendment) may require."
Given the fatal constitutional defects in the new law and its
potential to damage free speech on the Internet, the EFF believes that
it has no recourse other than to join in this case.
_________________________________________________________________
ADMINISTRIVIA
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