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THE CONSUMER AND INVESTOR ACCESS TO

INFORMATION ACT OF 1999

TUESDAY, JUNE 15, 1999

HOUSE OF REPRESENTATIVES,

COMMITTEE ON COMMERCE,
SUBCOMMITTEE ON TELECOMMUNICATIONS,
TRADE, AND CONSUMER PROTECTION,

Washington, DC. The subcommittee met, pursuant to notice, at 10 a.m., in room 2123, Rayburn House Office Building, Hon. W.J. "Billý” Tauzin (chairman) presiding.

Members present: Representatives Tauzin, Oxley, Stearns, Deal, Largent, Cubin, Shimkus, Blunt, Bliley (ex officio), Markey, Boucher, Luther, Sawyer, Green, and McCarthy.

Staff present: Justin Lilley, majority counsel; Cliff Riccio, legislative clerk; and Andy Levin, minority counsel.

Mr. TAUZIN. The subcommittee will please come to order. Members will be coming in as we commence, but I would like to get started. We have a very large panel this morning.

The subcommittee meets today to discuss H.R. 1858, Consumer and Investor Access to Information Act of 1999, which was introduced by our own Chairman, Tom Bliley, and has received strong bipartisan support from members of this committee.

Before we begin, I would like to extend a warm welcome to Dr. Gregory O'Brien, Chancellor of the University of New Orleans. We, of course, are delighted whenever we have a hometown guest here, and it is particularly good to see Chancellor O'Brien.

Given the intensified appeal and growth of the Internet, it is no longer clear what information, what analysis is proprietary and what is freely available to the public. Last week I read about a case which clearly demonstrates why this hearing is so important to the future of the Internet and electronic commerce in general.

Amazon.com the online book retailer, has a page on its Web site which lists the books on the New York Times best seller list. For each book on the list, Amazon presents a picture of the cover, the title, the name of author, the number of pages, the list price, the Amazon price, and a box to click if you want to purchase the book.

Moreover, you can click on another box to link to other information about the book, including published reviews, a biography of the author, a list of other books by the author offered by Amazon, and links to similar books.

In short, Amazon has taken a simple list of best selling books and converted it into quite a wonderful resource for consumers. The New York Times, however, may not see it that way. The Times

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believes that Amazon.com is somehow misappropriating its property by identifying the books on the New York Times best seller list. It has sent a demand letter to Amazon.com, and Amazon.com has filed a declaratory judgment action.

It is unclear whether the New York Times will prevail on its copyrighted trademark theory. However, it is unquestionably clear that the New York Times would prevail if broad data base protection legislation were in place. In my opinion that would be a troubling result.

It is true that the New York Times best seller list is widely considered to be one of the most authoritative lists of which books are selling the most in American bookstores, and one must recognize the Times has invested resources in assembling the list.

That does not alter the reality that the list is nothing more than a collection of publicly available facts. The list represents the results of a survey, and those results are no less facts than the results of any other sampling done by scientists and pollsters every day, and the facts, once released, belong in the public domain.

Why should someone be civilly, not to mention criminally, liable for making use of publicly available facts, particularly in a freespeech society such as ours. The Times best seller list is not a list that the newspaper editors believe to be most worth reading; instead it purports to be a list of the books the American public, rightly or wrongly, is choosing to buy.

If the Times owns the identity of the books on its best seller list then the NBA by analysis owns the identity of the players with the highest scoring average. And United Airlines owns the information about published prices on its flights to New Orleans and NBC owns its broadcast schedule.

And if all these well-heeled entities own all this information, then surely they can prevent an Internet company from incorporating it in a larger data base to create a value for consumers, such as Amazon.com's bestseller page, or an electronic TV Guide, for that matter.

Let me make it clear that I don't think that people should have access to trade secret information. People should not be able to reproduce a copyrighted expression in a database. The selection and arrangement of the data as opposed to the data itself. Further, I don't think that companies should be able to engage in unfair competition with respect to databases.

I should not be able to copy a database compiled by Congressman Markey and publish it in substantially the same form and manner which competes with his database. There may be a narrow gap in the law that currently permits this in certain circumstances, and that gap should be filled. For that reason, I join my colleagues in cosponsoring Chairman Bliley's legislation, but we must take care not to overprotect databases.

As Alex Kozinski, a judge in the 9th circuit recently wrote, overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today likely since we obtained fire is genuinely new. Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before.

Overprotection stifles the very creative forces it is supposed to nurture. This is a fascinating issue as evidenced by a very diversified panel today. We just recently on this committee completed our work on the WIPO legislation, protecting intellectual property rights; and this committee has some good experience in understanding the very delicate relationship between fair use and protected use and protected rights of intellectual property.

Today we expand upon that information base. We grow in knowledge, and we ask you to share a little data with us today on whether or not Mr. Bliley's bill, as we believe, is taking the right cut in this very delicate balance.

We look forward to hearing our witnesses as to whether or not, in fact, we have struck that right balance today.

The Chair in anticipation of Mr. Markey's arrival will recognize the gentleman, Mr. Luther, if he is prepared for an opening statement.

Mr. LUTHER. No thank you, Mr. Chairman. Thank you for holding this hearing, and I do expect that Mr. Markey will have an opening statement that he wishes to put into the record. I do not have anything to add other than to thank you for holding the hearing, and I look forward to the testimony. You are indeed correct that this is a timely and important issue. Thank you very much.

Mr. TAUZIN. I thank the gentleman. With Mr. Markey it is always a great expectation.

The Chair is now pleased to yield to the chairman of the full committee, Mr. Bliley, for an opening statement.

Chairman BLILEY. Mr. Chairman, thank you for holding this hearing on H.R. 1858; and let me say at the outset that I thank my colleagues for their support of this legislation.

This bill is a critical component of the committee's electronic commerce agenda, and I look forward to working with them on ensuring swift enactment.

For many years economists have wondered whether our country's enormous investment in information technology, in computers and advanced telecommunications networks, actually increase productivity; but now even the economists are believers. No less an expert than Alan Greenspan, chairman of the Federal Reserve, recently observed that the current economic prosperity we are enjoying in the United States is largely attributable to our investment in information technology.

Just the other day, the University of Texas released its study titled The Internet Economy, which finds that in 1998 alone the Internet generated more than $300 billion in revenue and was responsible for 1.2 million jobs. This is a mere 5 years after the birth of the World Wide Web.

To give my colleagues some sense of comparison, it took the automobile industry 100 years to scale such heights. The investment both public and private sectors have made in our information infrastructure are finally paying dividends in terms of allowing us to access and use information in a manner unprecedented in history.

A farmer in the Virginia Piedmont is now able to access from his home a wealth of information critical to his business. He can learn about soil conditions, weather trends, new pesticides, genetically enhanced seeds, and potential buyers in distant States.

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