I am reading this and my interpretation is that the concern that was raised by Ms. Lofgren, and which you have also evidenced, is addressed by that particular provision.

Mr. LEDERBERG. I hope you won't think I'm quibbling, but that then leaves the door open. There are two items that have been mentioned that were put together, so I'm not fully satisfied yet. Mr. DELAHUNT. Mr. Kirk?

Mr. KIRK. I did not raise the concern, but I agree with your reading. I would just add the last sentence of the same subparagraph, which you did not read, "Nothing in the Subsection shall admit the repeated or systematic extraction."

This, to me, implies that that second item, okay, but a hundred items, no. We come back to the basic point that I had commented on in my written testimony.

This is where I think guidelines, some kind of illustrative examples, to give people a little bit of an idea of where the line is.

You made the comment, and I agree with you, we are never going to get a bright line here. This isn't going to happen.

Mr. DELAHUNT. And, you know, I think it's important to the research community. We do not want to inhibit in any way-when we draft this language, our intention, at least it's my intention and I know I speak for the committee-is to encourage the use of this information.

Again, regarding my admonition of never being able to draw a bright line, I don't know how we do it in terms of guidelines, but I think we've really got to understand what we're trying to do here, and not ask for the impossible or the supernatural. It's just not going to happen.

Let me ask you, Mr. Duncan-and this is, again, based on an observation or a remark by Mr. Henderson.

You know, the Internet is obviously looming so large in our lives now for most people. I don't know how to use it, but I hear about it anyhow. [Laughter.]

Mr. DELAHUNT. That's why I'm on intellectual property.

Mr. DUNCAN. We have a lot of software that can help you, Mr. Delahunt.

Mr. DELAHUNT. You don't know my talents if you say that.

But are there people in the industry itself who feel constrained from putting databases out on the Internet because of the lack of protections, because they feel they are exposed to piracy?

Mr. DUNCAN. I think, generally that is the case in the industry. It doesn't mean that you can't find private sector databases on the Internet.

Mr. DELAHUNT. My question is, I want those commercial databases out in the public domain.

My question is-and I don't know if it can be quantified, but you represent, obviously, a portion of the industry. Are there companies, corporations, individuals, that are simply not doing it because of the lack of what they perceive to be protections that protect their investment?

Mr. DUNCAN. I think that's definitely the case. What I was going to say is that most of those databases, you can access through an Internet site, but you're not accessing them as an open Internet webpage; you are accessing them through a technology that allows

you to then go into their private network and that is how I believe it will remain for a very long time until they feel they have adequate protection against piracy

Mr. DELAHUNT. As long as we can maintain our state-of-the-art encryption. [Laughter.]

Mr. DUNCAN. Exactly. But that doesn't necessarily have to be exported, that technology, because you're coming to it in another way. Mr. DELAHUNT. Mr. Neal, in response to questions in your testimony, you state the core value is the availability for use of the research and the library community.

Not that I'm in any way endorsing this, but if Mr. Pincus's approach, which is focused rather on use than distribution, do you find that more appealing or attractive?

Mr. NEAL. I have not read Mr. Pincus's testimony. Wasn't his focus on distribution rather than use? Yes.

Mr. DELAHUNT. I might have misstated it.

Mr. NEAL. I believe that movement in thinking about this legislation is the right movement. I wanted to just echo something you said before.

The library community is not and does not want to be seen as obstructionist or unreasonable. [Laughter.]

Mr. NEAL. We want to create a piece of legislation that can work well in the communities that we serve.

Mr. DELAHUNT. This is what we call personal use of staff. [Laughter.]

Mr. DELAHUNT. It's a good thing Mr. Berman is not here. He's the Ranking Member on the Ethics Committee. That is a prohibited use. [Laughter.]

Mr. DELAHUNT. I'm sorry, Mr. Neal.

Mr. NEAL. I think that in the library community, we work very hard to guarantee appropriate distribution and appropriate use.

And what we want to be sure of is that we can apply any legislation that comes forward well, and interpret and guide our community well in how it understands and uses this legislation. That's why I think we're putting forward questions and issues in terms of definition, in terms of application, raising concerns in several areas, because we want a good piece of legislation, one that can work well in the communities that we serve.

I just want to reemphasize, we want to work with you; we don't want to be obstructionist or unreasonable. We want legislation that focuses on the need of our community.

Mr. DELAHUNT. That's very reassuring. I don't know whether it was you or Mr. Phelps, but one of you used the term, unprecedented protections.

Obviously, they're unprecedented because of the decision rendered in Feist. What we are trying to do is to restore at least part of the database protections to what existed before the Supreme Court decision.

So, again, I'll conclude, Mr. Chairman. I just again hope that you continue to have forums and venues for us to work, reach out for the various disparate interests, maybe even in a smaller group than the subcommittee.

I don't suggest that we should become involved in any way in their negotiations but I think we should move quickly and be will

ing to be open, and at the same time, we should understand clearly that we have a problem, and that this Congress and this subcommittee will address it.

Thank you.

Mr. COBLE. I concur. I thank the members of the subcommittee. I thank the members of the two panels. I also thank the attentive audience for having hung with us.

The good news is, folks, if it wasn't for the lunch break, you'd be here till probably 4:30 or 5.

The subcommittee appreciates all of your contributions made today. This concludes the legislative hearing on H.R. 354, the Collection of Information Antipiracy Act.

The record will remain open for 2 weeks, in lieu of the customary one. The Coalition has requested the 2-week window, and since we didn't get the administration's written statement until last night, that will afford us additional time.

Thank you for your cooperation. The subcommittee stands adjourned.

[Whereupon, at 2:45 p.m., the hearing was adjourned.]

APPENDIX

MATERIAL SUBMITTED FOR THE HEARING RECORD

MULLENHOLZ, BRIMSEK & BELAIR,

ATTORNEYS AT LAW,

Washington, DC, March 25, 1999.

Vincent E. Garlock, Counsel,

Subcommittee on Courts and Intellectual Property,

Committee on the Judiciary,

House of Representatives, Washington, DC.

DEAR VINCE: On behalf of the Coalition to Preserve Access to White Pages, we are enclosing five copies of written testimony about H.R. 354, the "Collections of Information Antipiracy Act." Please include this testimony in the March 18, 1999 hearing record.

Sincerely,

Enclosures

SUSAN C. HALLER.

COALITION TO PRESERVE ACCESS TO WHITE PAGES,

Hon. HOWARD COBLE, Chairman,

Washington, DC, March 25, 1999.

Subcommittee on Courts and Intellectual Property,
Committee on the Judiciary,

House of Representatives, Washington, DC.

DEAR CHAIRMAN COBLE: I am Steven L. Chudleigh, Vice President of Infonational, a wholly owned subsidiary of The Polk Company. The Polk Company was founded in Detroit in 1870 and is headquartered in Southfield, Michigan. The Polk Company has operations throughout the world and its business activities include motor vehicle statistics, direct marketing, geographic mapping, and city directories. Infonational is located is Orem, Utah. Infonational optically scans White Pages telephone directories from throughout the United States and uses Optical Character Recognition (OCR) to turn the images into text. We combine White Pages information with Polk proprietary databases for use in marketing, directory publishing, and safety recalls.

I am testifying today on behalf of the Coalition to Preserve Access to White Pages about Section 1405(f) of H.R. 354, the "Collections of Information Antipiracy Act." Polk is a member of the Coalition. Other members of the Coalition are Acxiom Corporation (corporate headquarters in Conway, AR); Bresser's Cross-Index Directory Company (corporate headquarters in Detroit, MI); City Publishing Company (corporate headquarters in Independence, KS); Experian (corporate headquarters in Orange, CA); First Data Solutions, a subsidiary of First Data Corporation (corporate headquarters in Atlanta, GA); Haines & Company (corporate headquarters in North Canton, OH); Hill-Donnelly Corporation (corporate headquarters in Tampa, FL); and infoUSA (corporate headquarters in Omaha, NE). The Coalition is also working in concert with the Direct Marketing Association.

On behalf of the Coalition, I would like to congratulate you, Mr. Chairman, Members of the Subcommittee, and the outstanding Subcommittee staff, on a bill which would restore commercial incentives for the creation of "sweat-of-the-brow" compilations by prohibiting the extraction or commercial use of collections of information gathered or assembled by another person through a substantial investment of money or other resources and, as a result, causing harm to that person's actual or potential market. The Coalition supports the goal of the bill and seeks one change in order to preserve access to White Pages directories. This change, for the reasons (205)

62-506 00-8

which we explain below, is entirely consistent with the goals, purposes, and approach of your legislation.

1

Our one proposed change relates to Section 1405(f). As currently drafted, Section 1405(f) does two things: (1) makes clear that Section 222 of the Communications Act (which requires telecommunications carriers to provide subscriber list information in a timely manner and under nondiscriminatory and reasonable rates) is unaffected; and (2) provides that any person can obtain or use subscriber list information (even if they do not buy it from a telephone company but, rather, buy an actual copy of a White Pages directory and scan or key punch the subscriber list information) but only for the purpose of publishing a telephone directory.

Members of the Coalition (and many other companies) capture subscriber list information (e.g., published name, address, and telephone number information) and use it for a variety of socially and economically beneficial products and services, many of which, however, do not fall within the category of "telephone directories." Thus, the Coalition urges you, Mr. Chairman, and Members of the Subcommittee, to change Section 1405 (f) so that the provision preserves access not just to alternative telephone directory publishers, but for all users. This can be accomplished by removing the phrase "for the purpose of publishing telephone directories in any format" from the end of Section 1405(f).

Five public policy considerations compel the conclusion that Section 1405(f) should be amended to protect public access to White Pages information for commercial purposes:

(1) Keeping White Pages directories in the public domain will not create disincentives for producing White Pages.

(2) Section 1405(f) provides access for alternative directory publishers. Section 1405(f), however, does not provide access to Coalition members and others who use White Pages information for a vast array of socially and economically important purposes.

(3) Unless Section 1405(f) is amended, telephone companies would h4ve an ironclad, government-supported monopoly and many critical products and services incorporating subscriber list information may become unavailable. (4) Section 222 of the Communications Act of 1934 is not sufficient to protect he interests of commercial users of White Pages directories.

(5) Continuing to keep White Pages information in the public domain will not violate consumers' privacy rights.

1. KEEPING WHITE PAGES DIRECTORIES IN THE PUBLIC DOMAIN WILL NOT CREATE DISINCENTIVES FOR PRODUCING WHITE PAGES.

The purpose of the Collections of Information Antipiracy Act is to restore commercial incentives for the creation of "sweat-of-the-brow" compilations, especially in light of new technologies which make it less expensive and easier for competitors to capture and use these compilations. Telephone companies, however, are required by state law, regulation, and policy to publish White Pages directories. Therefore, preserving open access to White Pages directories will not undermine incentives to produce White Pages because telephone companies must produce White Pages, regardless of any commercial incentive to do so.

2. ACCESS TO SUBSCRIBER LIST INFORMATION SHOULD NOT BE LIMITED TO
ALTERNATIVE DIRECTORY PUBLISHERS.

As currently drafted, Section 1405(f) does not restrict the extraction or use of subscriber list information "for the purpose of publishing telephone directories in any format." There is no legal or policy basis for allowing access to White Pages directories to alternative directory publishers while cutting off access to other legitimate commercial users.

Members of the Coalition use subscriber list information for a variety of socially beneficial purposes including the following: motor vehicle recall campaigns, fraud prevention, political campaign polls and surveys, locating missing persons, child support enforcement, uniting separated families, locating heirs to estates, locating pension fund beneficiaries, apprehending criminals, locating witnesses, locating organ and bone marrow donors, and providing consumers with targeted marketing

1 COMMUNICATIONS ACT OF 1934.-Nothing in this chapter shall affect the operation of the provisions of the Communications Act of 1934 (47 U.S.C. 151 et seq.), or shall restrict any person from extracting or using subscriber list information, as such term is defined in section 222(f)(3) of the Communications Act of 1934 (47 U.S.C. 222(f)(3)), for the purpose of publishing telephone directories in any format.